Hodgson v Clarke
| Jurisdiction | England & Wales |
| Judgment Date | 26 January 1860 |
| Date | 26 January 1860 |
| Court | High Court of Chancery |
English Reports Citation: 45 E.R. 412
BEFORE THE LORD CHANCELLOR LORD CAMPBELL AND THE LORDS JUSTICES.
S. C. 1 Giff. 139; 5 Jur. (N. S.), 1024.
412 HODGSON V. CLARKE 1DE O. F. & J. 394. [394] hodgson v. clarke. Before the Lord Chancellor Lord Campbell and the Lords Justices. Jan. 26, 1860. [S. C. 1 Giff. 139; 5 Jur. (N. S.), 1024.] A testator bequeathed 4000 in trust for his brother for life, and after his decease upon trust to pay or divide the principal sum unto or equally between the child or children of the brother living at his decease except Thomas (his eldest son), and the issue then living of any (except the said Thomas) then dead, such issue taking their parent's share only. It was shewn by parol evidence, that Thomas was the youngest son of the testator's brother at his decease; and that, to the testator's knowledge, when he made his will the eldest son of his brother was possessed of a large fortune, while the youngest and other children were unprovided for. Held, that the eldest son, and not Thomas, was the son intended to be excepted. This was an appeal from the construction put by Vice-Chancellor Stuart upon a bequest of 4000 to trustees upon trusts, after the decease of the testator's widow, thus expressed "to pay the interest and dividends thereof to my brother James Clarke during his life, and from and after his decease, upon trust to pay or divide the principal sum unto or equally between the child or children of my said brother living at his decease (except Thomas, his eldest son), and the issue then living of any (except the said Thomas) then dead, such issue taking their parent's share only." The question was, whether the exception referred to Robert Addison Clarke, the eldest son of the testator's brother, or to Thomas Clarke, his youngest son, or was void for uncertainty. It arose upon the petition of Thomas, presented after the death of the testator's [395] widow, for payment to the Petitioner of one-third of the fund bequeathed in trust for the children of the testator s brother James, on the ground that the eldest son of James was not entitled to participate in the benefit of the bequest. In support of the petition, evidence was adduced shewing that the testator's brother had four children ;-Robert Addison Clarke, the eldest; Thomas Clarke, the youngest; one other son and a daughter; that the eldest son was, to the knowledge of the testator, entitled to a fortune of 2000 a year under the will of his maternal grandfather, while Thomas was also, to the knowledge of the testator, totally unprovided for, and that there was no known reason why Thomas should have been excluded. The Vice-Chancellor held the bequest void for uncertainty. The case is reported in the first volume of Mr. (liftard's Reports (page 139). The daughter appealed. Mr. Malins and Mr. Jessel, in support of the appeal. It is...
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