Holliday v Overton
| Jurisdiction | England & Wales |
| Judgment Date | 14 February 1852 |
| Date | 14 February 1852 |
| Court | High Court of Chancery |
English Reports Citation: 51 E.R. 366
ROLLS COURT
S. C. 21 L. J. Ch. 769; 16 Jur. 346.
366 HOLLIDAY V. OVERTON MBEAV.467. [467] holleday v. overton.(i) Feb. 14, 1852. [S. C. 21 L. J. Ch. 769; 16 Jur. 346.] Settlement on wife for life, with power for her, during the intended coverture, to appoint by will, and in default, over. Held, on the context, that an appointment by will, after the coverture, was invalid. Conveyance of real estate to a trustee in fee, in trust for one for life, and afterwards to her children, equally. There being no limitation to their heirs, held that the children took for life. The plain effect of the operative part of a deed cannot be cut down by the recitals. In 1825 Mary Heathcote, a widow, being about to marry Edmund Dray ton, a settlement of her real and personal estate was executed, whereby, after reciting that it was agreed to settle the property for her separate use for life, and after her decease, for making "a provision for the children of her former marriage (subject nevertheless to a power of appointment on the part of Mary Heathcote, by will or testamentary instrument, to be executed in manner thereinafter provided)," she proceeded to convey the property to a trustee, his heirs, &c., in trust for her separate use for life, and, after her decease, in trust for such persons " as the said Mary Heathcote, in and by her last will and testament or instrument testamentary, or in the nature of a will in writing, to be signed and published by her in the presence of three or more credible witnesses, upon testamentary considerations only during the intended coverture, shall direct and appoint ; " and in default of such appointment. " in trust for the children of Mary Heathcote, equally to be divided between them, share and share alike, as tenants in common and not as joint-tenants." In 1832, during the coverture, she executed an appointment which turned out to be invalid. Edmund [468] Dray ton died in 1835, leaving his wife surviving, who, in 1845, executed a will according to the prescribed formalities, whereby she appointed the property in question. The Plaintiffs in this claim insisted that as the power was only to be executed "during the intended coverture," the will of 1845 was invalid, being executed afterwards. Mr. Lloyd and Mr. Speed, for the Plaintiffs, and Mr. R. Palmer and Mr. Sheffield, in the same interest. The object of the settlement was merely to protect the wife, whose property alone was included therein, from the marital control during coverture, but after its determination, she was to have the full power of testamentary disposition. A. feme covert cannot, strictly speaking, make a will, and the effect of the clause in question is to give her a power to appoint by will generally while sole, and a testamentary power with given formalities during the intended coverture. This construction is evident by dividing the sentence at the first alternative " or," and it will read thus : as she shall by her will appoint, or as she shall appoint by any instrument in the nature of a will to be published, &c., "during the intended coverture." It is a settled rule of construction, that the qualification to a prior alternative sentence applies only to the latter antecedent, as in Baker v. Baker (6 Hare, 269), where in a gift amongst "my brother and my sisters, and my nephews and nieces living at the decease " of A., it was held, that the qualification of surviving A. attached only to the nephews and nieces. This construction is consistent with the object of the settlement as apparent from the recital, and if a [469] different construction were given, this result would follow : that she might disinherit her children by her former marriage during coverture, when she...
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...applied; Chartbrook Ltd. v Persimmon Homes Ltd. [2009] 1 AC 1101 applied; Arnold v Britton [2015] UKSC 36 applied; Holliday v Overton (1852) 14 Beav. 467 applied; Mackenzie v Duke of Devonshire [1896] AC 440. applied; Ex p. Dawes, Re Moon (1886) 17 QBD 275 applied. 5. To constitute repudiat......
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Ramsbury Properties Ltd v Ocean View Construction Ltd
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