Hougham v Sandys
| Jurisdiction | England & Wales |
| Judgment Date | 28 December 1827 |
| Date | 28 December 1827 |
| Court | High Court of Chancery |
English Reports Citation: 57 E.R. 725
HIGH COURT OF CHANCERY
Appointment. Conversion. Will. Construction.
[95] hougham v. sandys. Dec. 14, 15, 17, 28, 1827, ^Appointment. Conversion. Will. Construction. By Mr. and Mrs. P.'s marriage settlement, estates in Kent and other counties, the lady's property, were settled on her for life, remainder to Mr. P. for life, if she should so appoint, remainder to their children, remainder as Mrs. P., by deed under her hand and seal, attested, &c., or by her will, signed and published in the presence of three witnesses, should appoint; remainder to Mrs. P. in fee, with a power of sale, and directions for reinvesting the proceeds in other estates, and, in the usual securities, in the interim, and that upon the reinvestment, the uses of the settlement should cease as to the sold estates. Mrs. P., by deed not attested as to her signature (at the foot of which she had written, without date, directions for her burial), appointed the estates, after her decease, to her husband for life, and, in default of children, to him in fee ; and she revoked a prior deed of appointment. The estates 726 HOUGHAM V. SANDYS 2 SIM. 96. were afterwards sold, and the proceeds invested in securities, but were never reinvested in lands, although their liability to be so was recognised by the parties. There was no issue of the marriage. Mrs. P. survived her husband, and applied part of the proceeds to her own use. At her death she was seised (exclusive of the settled property) of a mansion-house, with outbuildings, gardens, and a small field adjoining it, and some cottages opposite to it, let to tenants, and was possessed of some personal estate, no part of which was in the name of a trustee. She devised the mansion-house, with its appurtenances, and all other her real estates, to C. S., and bequeathed all her personal estate, whether in the name of herself or of any trustee, subject expressly to her debts and legacies, to other persons. After her death, the deed of appointment was found in her house, with the title-deeds of the mansion-house ; but the revoked deed could not be found. Her debts and legacies greatly exceeded her assets. Held that the former deed was not a testamentary instrument, and that Mrs. P.'s receiving part of the proceeds of the settled estates was not an entry or claim within the 54 G. 3, c. 168, but that that statute remedied the defect of attestation ; that the remaining proceeds remained as real estate, but did not pass either to the devisee or the residuary legatees in the will; that Mr. P.'s co-heirs in gavelkind were not entitled to any part, but that the whole belonged to his heir at law, under the appointment. By indentures of lease and release, dated the 1st and 3d of May 1760, the release being made between Ann Pyott, spinster, the only child of Charles Pyott, thereinafter named, by Ann his late wife, deceased, who was one of the three surviving daughters and co-heirs [96] of Sir Richard Sandys, Baronet, deceased, of the first part, the said Charles Pyott, of the second part, Robert Thomas Pyott, Esquire, of the third part, and John Knowler, Esquire, and Peter Johnson, Eaquire, of the fourth part, and by a fine levied in the 33 Geo. 2, being the settlement on the marriage of Ann Pyott and Robert Thomas Pyott (who were related to each other before their intermarriage), one undivided third part of several closes, tenements and hereditaments, being part of a farm called Bishop's Lathers, otherwise Bishop's Fields, situate in the parish of Bishop's Hill Younger, otherwise Bishop's Hill Newer, in the county of the City of York, and also of a capital messuage or mansion-house, situate in the parish of Northborne, in the county of Kent, with the lands and grounds thereto belonging ; and also of a messuage and farm called Northborne Court Lodge, situate in the parishes of Northborne and Shoulden, or one of them, in Kent; and also of a messuage and farm called Longdane farm, situate in the parish of Northborne aforesaid, and also of a messuage or tenement and farm called Cold Harbour, situate in the parishes of Northborne and Shoulden aforesaid, or one of them ; and also of those three closes called Ripple Closes and Sutton Close, situate in the parishes of Ripple and Sutton, or one of them, in Kent; and also of a messuage or tenement and farm called Stoneheap farm, in the parishes of Northborne aforesaid, and Tillmanstone, or one of them, in Kent; and also of the tithes of corn and grain of certain lands called the Lord's Lands, and other lands of Thomas Stone of Deal; and also of that messuage or tenement called Drove, with the orchard belonging to it; and of and in all other the messuages, farms, lands, tithes, tenements [97] and hereditaments whatsoever of Ann Pyott and Charles Pyott, or either of them, situate in the said parishes, or elsewhere in Kent; and all other the manors, messuages, lands, tenements and hereditaments whatsoever of the said Ann Pyott, in the same county, in the county of the city of York, and in the counties of Somerset and Salop, or elsewhere in Great Britain, with their appurtenances, were conveyed, limited and assured unto and to the use of the said John Knowler and Peter Johnson, in fee, upon trust, after the solemnization of the marriage, to pay, during the life of Ann Pyott, the rents and profits thereof to Ann Pyott, for her separate use ; and in case she, by any deed or deeds, writing or writings under her hand and seal, attested by two or more credible witnesses, or by her last will and testament in writing, to be signed, published and declared as therein mentioned, should direct and appoint the rents and profits of the premises to be paid, after her decease, to Robert Thomas Pyott for his life, then upon trust to pay the rents and profits of the premises unto Robert Thomas Pyott duriug his life; and after the death of Robert Thomas Pyott, in case of such S SIM. 98. HOUGHAM V. SANDYS 727 direction or appointment to him, or, in default thereof, then after the death of Ann Pyott, upon trust to stand seised of the premises in trust for all the children of Robert Thomas Pyott on the body of Ann Pyott to be begotten, for such estate and estates, &c., as Ann Pyott and Eobert Thomas Pyott should, jointly, during their joint lives, or as the survivor of them should, in manner therein mentioned, appoint; and in default of such appointment, in trust for all their children, in equal shares, as tenants in common in tail, with cross-remainders between or amongst them in tail, with remainder in trust for such person and persona, [98] for such estate and estates, in such parts and proportions, and charged and chargeable with such rents, annuities, sum or sums of money, payable either annually or otherwise, and in such manner and form, with or without power of revocation, as Ann Pyott should, from time to time, notwithstanding her coverture, and whether she should be sole or married, by any writing or writings under her hand and seal, attested by two or more credible witnesses, or by her last will and testament, or by any writing purporting to be her last will and testament, to be by her signed and published in the presence of three or more credible witnesses, appoint; and, in default of such appointment, in trust for Ann Pyott, in fee. By the indenture of release it was declared that it should be lawful for Mr. and Mrs. Pyott, at any time or times during their joint lives, and in case Mrs. Pyott should survive Mr. Pyott, for her, at any time or times during her life, with the consent and approbation of the trustees or trustee for the time being, to sell all or any part of the said undivided third part, and other parts and shares of the said messuages, lands, tenements and hereditaments, in the county of Kent, and in the county of City of York, and all or any part of the premises in the said counties of Somerset and Salop, or elsewhere in Great Britain, or otherwise, to make any exchange or exchanges of all or any part of the said undivided third part, and other parts and shares, and other the premises, with any person or persons, for any other freehold lands, tenements and hereditaments of inheritance, or otherwise, to make a partition or division of all or any part of the said messuages, lands, tenements and hereditaments, so always that the monies arising by such [99] sale of all or any part of the said undivided third part, and other parts and shares, and of other the premises, should be laid out in the purchase of other lands, tenements and hereditaments being freehold of inheritance; and the lands, tenements and hereditaments so to be purchased, or the lands, tenements and hereditaments to be taken in exchange, or the lands, tenements and hereditaments, upon such partition or division, to be allotted for and in lieu of all or any part of the same undivided third part, and other parts, shares and premises, should, thereupon, be conveyed, assured and settled to and for the same or the like uses, intents and purposes, and upon the same or the like trusts, and under and subject to the same or the like agreements, as the said undivided third part, and other the premises thereby granted and released, were thereby conveyed and limited, or as near the same as the then circumstances of the case would admit; and that then, and in such case, all and every the estates, uses, trusts and agreements thereinbefore conveyed, limited, declared and mentioned, of and concerning the premises, or such part thereof which should be so sold or given in exchange, or of which such partition or division should be made, should cease, determine and be utterly void to all intents and purposes whatsoever. By a deed-poll, bearing date the 14th of April 1761, under the hand and seal of Ann Pyott, and executed by her in the presence of three witnesses, she, by virtue of the power and authority to her reserved by the settlement, appointed the rents and clear yearly...
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