Howells v Jenkins
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1863 |
| Date | 01 January 1863 |
| Court | High Court of Chancery |
English Reports Citation: 46 E.R. 244
BEFORE THE LORDS JUSTICES.
S. C. 2 J. & H. 706; 2 N. R. 539; 32 L. J. Ch. 788; 9 L. T. 184; 11 W. R. 1050.
[617] howells v. jenkins. Before the Lords Justices. June 23, July 25, 1863. [S. C. 2 J. & H. 706; 2 N. R. 539; 32 L. J. Ch. 788; 9 L. T. 184; 11 W, E. 1050.] A testator was entitled to a moiety of two farms, T. and P., one-fourth of which belonged to L. J. and the remaining fourth to W. J. By his will he gave both farms to his wife for life, and after her death he gave T. to W. J. and E. J. in equal shares, with cross-limitations between them, and P. to the Plaintiffs. After the testator's death L. J. conveyed his interest in both farms to himself for life, remainder to the testator's widow for life, remainder to the Plaintiffs in fee, and died in the widow's lifetime. After the widow's death W. J. elected to take against the will. Held, that one-fourth of T. belonged to W. J., another fourth to the Plaintiffs, another fourth to E. J., subject to the limitations over in favour of W. J., If Of. Z 1 Dl 0. J. ft a. 611 HOWELLS V. JENKINS 245 and that the estate and interest of W. J. in T. under the will ought to be apportioned between the Plaintiffs and E. J. in proportion to the value of that interest of the Plaintiffs in P. and that interest of E. J. in T. of whioh they had been respectively deprived by W. J.'s election. This was an appeal by the Defendants Elizabeth Jenkins and her husband from part of a decree of Vice-Chancellor Wood. Lewis Jenkins, under whose will the questions in the cause arose, was entitled to two-fourths of two freehold estates called Tyr-y-Wain and Pedola. Another fourth belonged to his nephew William Jenkins and the remaining fourth to Llewellyn Jenkins. Lewis Jenkins by will, dated the 27th of January 1847, after making certain bequests, gave his residuary estate, real and personal, to his wife for her life, or until her second marriage, and after her decease or second marriage, to Llewellyn Jenkins for life. "And from and after his decease, in manner following :-As to my farm called Tyr-y-Wain I give and devise the same unto and between my nephew William Jenkins and my niece Elizabeth Jenkins, and their several heirs and assigns for ever, as tenants in common; and I direct that in case either of them shall die without lawful issue at the time of his or her death, the share of the one so dying shall go to the other of them, his or her heirs and assigns for ever. And I give and bequeath unto the aaid William and [618] Elizabeth the sum of 200 towards rebuilding and repairing the houses, outhouses and other buildings on my said farm called Tyr-y-Wain. And as to my farm called Pedola and my two leasehold houses at Dowlais, I give and devise the same unto my nieces Ann Jenkins and Jennett Jenkins, and to their several heirs, executors, administrators and assigns, according to the nature of the property, as tenants in common ; and I direct that in case either my niece Ann or my niece Jennett shall die without leaving any lawful issue living at the time of her death, the share of the one so dying of the said farm and houses shall go to the other of them, her heirs, executors, administrators and assigns." The testator then, after giving some pecuniary legacies, gave the residue of his property after the death or second marriage of his wife and the death of Llewellyn Jenkins to his nephew and nieces William, Elizabeth, Ann and Jennett as tenants in common. Shortly after the testator's death, Llewellyn Jenkins conveyed all his interest in Tyr-y-Wain arid Pedola to the use of himself for life, remainder to the testator's widow for life, with remainder to Ann Jenkins and Jennett Jenkins as tenants in common in fee, with limitations over between them in the event of death without leaving issue. Llewellyn Jenkins died in the lifetime of the testator's widow, and after the death of the widow, Ann Jenkins (now Howells) and Jennett Jenkins instituted the present suit for determining the rights of the parties. Vice-Chancellor Wood decided (2 Johns. & H. 706), that William Jenkins was put to his election whether he would take under [619] or against the will, and the decree declared, that if he should elect to take against the will, then three-fourths of Pedola and otie moiety of Tyr-y-Wain would belong to the Plaintiffs, the remaining one-fourth of Pedola, and one-fourth of Tyr-y-Wain to the Defendant W. Jenkins, and the remaining one-fourth of Tyr-y-Wain to Elizabeth Jenkins. Elizabeth Jenkins and her husband appealed against so much of this decree as declared that one moiety of Tyr-y-Wain would belong to the Plaintiffs and one-fourth to Elizabeth Jenkins. William Jenkins, at the time when the appeal came on to be heard, had not made his election and did not appear on the appeal. Mr. Willcock and Mr. F. J. Wood, for the Appellants. The effect of the decree is, that Elizabeth Jenkins, in the event of William Jenkins electing to take against the will, loses half the interest in Tyr-y-Wain which was intended for her by the will and receives no compensation at all, whereas the Plaintiffs get one-fourth of Tyr-y-Wain as compensation for what they have been deprived of in Pedola. This we submit is manifestly wrong; there ought at least to be an apportionment between Elizabeth Jenkins and the Plaintiffs. But we contend that the decree ought to have given one moiety of Tyr-y-Wain to Elizabeth Jenkins. The gift to William Jenkins is subject to an implied condition that should comply with anything contained in the 246 GIBBONS V. SNAPE 1DE 0. J. tc 8. 820. will, and he having broken this condition, matters stand as if the devise to W. Jenkins were struck out of the will, in which case the whole of the testatrix's interest in Tyr-y-Wain goes to E. Jenkins. 520} Mr. W. M. James and Mr. Freeling, for the Respondents. he lord justice turner. The true principle appears to me to be, that where a person elects to take against a will, the persons who are disappointed by that election are entitled to compensation, out of the benefits given to him by the will, in proportion to the value of the interests of which they are disappointed. the lohd justice knight beuce concurred. It was then arranged that the ease should be mentioned again after William Jenkins had made his election. July 25. William Jenkins having elected to take against the will, an order was made, of which the parts material for the present purpose were as follows:- Defendant William Jenkins by his counsel electing to renounce all benefit given or devised to him by the will...
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