Hughes v Turner
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1831 |
| Date | 01 January 1831 |
| Court | Ecclesiastical Court |
English Reports Citation: 162 E.R. 1359
HIGH COURTS OF DELEGATES.
See in Chancery, 1835, 3 Myl & K 666. Referred to, Henfrey v. Henfrey, 1842, 4 Moore, P. C. 35. Hughes v. Hosking, 11 Moore, P, C. 15; Enohin v. Wylie, 1862, 10 H. L. Cas 10. Disapproved Cadell v. Wilcocks, [1898] P. 21.
[30] hughes v. turner. High Court of Delegates, 1831.-Where a testatrix had a power of appointment, and a general probate of her will of 1829 ;md codicil thereto had been granted, the Delegates, reversing a decree of the Prerogative, lield that the Court of Probate could not also grant an administration, with a will of 1815 and codicils annexed, limited to become a party to proceedings in equity touching the execution of the power by such wills , but must itself decide whether the will of 1815 was under the circumstances revoked by the will of 1829, and thereupon grant either a probate of the will and codicil of 1829 alone, or a probate of those papers and of the will of 1815 and its codicils, as together containing the will. [See in Chancery, 1835, 3 Myl. & K 666. Eeferred to, Henfrey v Henfrey, 1842, 4 Moore, P. C. 35; Hughe* v. Hoshng, 1856, 11 Moore, P. C 15; Enohin v Wylw, 1862, 10 H. L. Cas. 10. Disapproved, Cadell v. Wikodn, [1898] P. 21.] On appeal from the Prerogative Court of Canterbury. The Judges Delegate who sat under this commission were Mr Baron Bay ley , Mr. Justice Patteson; Mr. Justice Alderson ; Dr. Daubeny , Dr Philhmore, Dr Dodson; Dr. Blake; and Dr. Curteis. Elizabeth Leighton Bonsall (formerly wife of George Bonsall) died, a widow, on the 22d of December, 1830. The deceased, under and by virtue of the will of her sister, Martha Daviea, spinster, deceased, was entitled to the rents, dividends, interest, and annual produce of the residue of her sister's real and personal estate for IHe, independent of her husband, the same being given to trustees, upon trust, to pay the same to her for her separate use ; and upon her death, then " upon the further trust to pay, apply, and dispose of all and singular the said trust monies and premises to such person and persons, in such parts, shares, and proportions, and in such manner as the said Elizabeth Leighton Bonsall, notwithstanding her coverture, and as if she were sole and unmarried, should by her last will and testament in writing, or any codicil thereto, to be by her signed and published in the presence of three or more credible witnesses, give, devise, direct, limit, or appoint, and in default of such direction, limitation, or appointment, or in case any such shall be made which shall not extend to the entire disposition of the said trust monies then subject thereto, and as to so much of [31] the said trust premises whereof no effectual gift, deviae, direction, limitation, or appointment shall be made, upon trust, for the said George Bonsall, his heirs, &c," and appointed him executor. The will (which contained the above provisoes) of Martha Davies was dated on the 13th of December, 1808; and a codicil, dated on the 5th of August, 1815, substituted Mr. Sharon Turner, as a trustee, in the place of John Hilton, deceased. This will and codicil were respectively executed and attested to render valid devises of real estate; and Mr. George Bonsall, the husband of the deceased in this cause, took probate of them in November 1815. The trustees were J. O. Trotter and Sharon Turner. 1360 HUGHES V.TURNER 4 HAGG ECC. 32 On the 16th of December, 1815, Mrs. Bonsall, the deceased in this cause, made her will, wherein, after reciting part of her marriage settlement, dated on the 12th of May, 1808, she directed, limited, and appointed that S. P. Parson and Sharon Turner, their heirs, &c. &c &c , should, immediately after the decease of the survivor of her husband and herself, and failure of children, assign arid convey to John Jones, Sharon Turner, and S. P Parson certain monies upon trust, aftei paying the legacies therein mentioned, to divide the residue between and amongst themselves as tenants in common. In a subsequent part of her will Mrs Bonsall, after referring to the will of her late sister, Martha Davies, and reciting the power of appointment (as printed above) given to her, Mrs. Bonsall, under that will, and that probate had been duly taken, proceeded, in substance, as follows--"Now in pursuance and by virtue of every right, power, or authority, to me given in and by the said last will and testament, and [32] codicil, of my said late sister, or either of them, arid by virtue of every other right, power, or authority, enabling me in this behalf, and in execution thereof, I, the said E. L. Bonsall, do by this my last will and testament, by me duly signed, sealed, and published, in the presence of the said three credible persons whose names are intended to be hereunto subscnbed as witnesses attesting the execution thereof by me the said E. L. Bonsall, direct, limit, and appoint that Sharon Turner and J. 0 Trotter, their heirs, executors, administrators, and assigns, do and shall immediately after my decease convey and assign unto and to the use of the said John Jones, Sharon Turner, and S. P. Parson, their heirs, &c &c. &c respectively, upon the trusts hereinafter mentioned, all the said real and personal estate of my said late sister, Martha Davies, now vested in them the said Sharon Turner and J. O Trotter, or over which I have any disposing power, and I do hereby declare that Jones, Turner, and Parson, their heirs, &c. &c. &c respectively, shall stand, and be seized, and possessed of the said last mentioned real and personal estate respectively : upon trusts hereinafter declared concerning the same," viz.: that as to 40001, John Gould, of Woolwich, and hrs wrfe shall take the dividends for their respective lives; and upon the death of the survivor the principal, under certain conditions, to be paid to their children. The testator then gave a legacy of 2001. to Mary Ann Honour Parson, and of 10001 to her own god-daughter, Martha Elizabeth Turner, daughter of Sharon Turner; and "in trust as to all that freehold, messuage, land, hereditaments, and premises purchased by my late sister, in the county of Cardigan, called [33] Fynnon Wenn, and all that slang, or piece, or parcel of land, rn the parish of Llancadarnefawr, in the county of Cardigan, also pur chased by her, and all other the real estates purchased by my sister in Wales, in trust for the said Sharon Turner, for and during the term of his natural life And from and after the decease of him the said S. T , in trust for Alfred Turner, son of the said S T., his heirs and assigns for ever And in case S. Turner and Alfred Tuiner shall die in my life trme, then in trust for William Turner, the second son, his heirs and assigns for ever. And in case the said S T, A. T , and W T. shall all die in my life time, then upon the trusts hereinafter mentroned and declared concerning the same And I give to my goddaughter, Martha Elizabeth Turner, the piano-forte, which belonged to my late sister Also, I give to Mary Turner, the wrfe of Sharon Turner, all rny wearing apparel, table and bed linen, lace, trinkets, watches, plate, china, jewels, and books, which I have in any way the power of giving or disposing of. And I desire my executors to give and distribute twenty-five mourning rings to such of my friends as they shall think fit. And as to all that freehold estate purchased by my late sister in the county of Cardigan, and all other the real estate purchased by my sister rn Wales, from and after the events and contingencies herernbefore mentioned of and concerning the same, and also as to all the rest, residue, and remainder of the said real and personal estate, over which I have any disposing power, under the will and codicil of my late sister, or either of them, I declare and direct that the said J. Jones, S. Turner, and S. P. Parson, and the survivors of them, his heirs, &c. &c. &c. [34] respectively, shall and do stand, and be seized of, and interested in the same, in trust, for themselves, their respective heirs, &c. &c. &c as tenants in common, and for then-own respective absolute use and benefit And if any one or more of them, Jones, Sharon Turner, and Parson, shall die in my life time, then the share or shares which such person or persons so dying would have been entitled to, if he or they had survived me, shall not lapse, but shall be in trust, and to be paid to such person o persons as shall be his, or her, or their respective heirs, executors, and administrators 4 HAOO. ECC. 35. HUGHES V. TURNER 1361 absolutely and for ever. And so far as the law enables me in this behalf, 1 constitute and appoint the said John Jones, Sharon Turner, and S. P. Parson executors of this my will and testament. And I hereby i evoke all my former wills, and I give to my servant, Mary Langford, Widow, 3001." Tliis will (contained in ten sheets of paper) was dated on the 16th of December, 1815, and duly executed to pass real estate; and according to the power under her sister's will. On the 31st of March, 1818, Mrs. Bonsall made a codicil, republishing her will; and desiring, that in ease she should die before her sister's monument was put up, that it should be paid for by her executors out of the property bequeathed to them by her will. On the 20th of March, 1819, she made a second codicil, wherein, after reciting the appointment by her will, in virtue of her marriage settlement, to Jones, Turner, and Parson; and that Parson was dead leaving only one child amply provided for, she gave Parson's share to her husband if he should survive, confirmed the appointment of the other two shares to Jones and Turner; and also, after reciting the appointment by her [35J will, in virtue of her sister's will, to Jones, Turner, and Parson, " upon the trusta therein declared, and amongst others, as to 40001 for the benefit of John Gould and his family, as to 2001. for Mary Ann Honour Parson, as to 10001 for my god-daughter therein...
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