Ibbetson v Ibbetson
| Jurisdiction | England & Wales |
| Judgment Date | 11 June 1841 |
| Date | 11 June 1841 |
| Court | High Court of Chancery |
English Reports Citation: 59 E.R. 1110
HIGH COURT OF CHANCERY
For previous proceedings, see 10 Sim. 495; 5 My. & Cr. 26; 41 E. R. 281. For subsequent proceedings, see 13 Sim. 544.
Exoneration. Devises and Executor.
[206] ibbetson v. ibbetson. June 10, 11, 1841. [For previous proceedings, see 10 Sim. 495; 5 My. & Cr. 26; 41 E. R. 281. For subsequent proceedings, see 13 Sim. 544.] Exoneration. Devisee and Executor. A., by his marriage settlement, after reciting that he was seised in fee of certain estates, subject to mortgage debts, the amount of which was mentioned and which he had contracted, settled the estates, subject expressly to the debts, on himself for life, remainder to secure a jointure for his intended wife, remainder to the first and other sons of the marriage in tail male, remainder to himself in fee, and covenanted for the title, excepting the debts : and he reserved to himself power to raise 10,000 by mortgage of the estates, the mortgage to be made redeemable by the person for the time being entitled to the freehold or inheritance. A. exercised the power, reserving the equity of redemption to himself, his heirs, executors, &c., or the person for the time being entitled as aforesaid, and covenanted for payment of the mortgage money. He then died without issue, having by his will charged (1) See Saumarez v. Saumarez, 4 Myl. & Cr. 331; Doe v. Coleman, 6 Price, 179; and Noel v. Hoy, 5 Madd. 38. Under the recent Will Act, 7 Will. 4 and 1 Viet. c. 26, s. 28, devises of real estate without words of limitation, in wills made after the lat of January 1838, pass the whole of the testator's interest disposable by will, unless a contrary intention appear. 12 SIM. 207. IBBETSON V. IBBETSON 1111 his real and personal estate with his debts and bequeathed the residue of his personal estate after payment of his debts to B., and having devised his remainder in fee expectant on the failure of his issue male to his brother and his brother's sons in strict settlement. Held, that they were not entitled to have his personal estate applied to exonerate the devised estates from any of the mortgage debts. By the settlement on the marriage of Sir Henry Carr Ibbetson, Bart, (who was therein described as the eldest son and heir of Sir James Ibbetson, Bart., deceased), with Alicia Mary Scott, after reciting amongst other things that Sir Henry Carr Ibbetson was seised in fee in possession of the manor and capital mansion of Denton and other hereditaments in the county of York, subject to a rent-charge of 800, the jointure of his mother, Dame Jenny Ibbetson, and to seven several mortgage debts of 2500, 1200, 3000, 1400, 2000, 1000, and 1000, amounting in the whole to 12,100, Sir Henry Carr Ibbetson conveyed the manor, &c., subject to the jointure and mortgage debts, to trustees for the term of 99 years, and, subject to that term, to the use of Sir Henry Carr Ibbetson for life, with remainder to trustees to preserve, &c., with remainder to the use that Alicia Mary Scott might receive a rent-charge of 300 a year during her life, in case she [207] should survive Sir Henry Carr Ibbetson, and, after the decease of Sir Henry Carr Ibbetson, subject to and chargeable as before mentioned, to the use of trustees for the term of 100 years, and subject to that term, and charged and chargeable as aforesaid, to the use of the first and other sons of the marriage in tail male, and, for want of such issue, to the use of Sir Henry Carr Ibbetson in fee. The trusts of the term of 99 years were for securing 200 a year pin-money for Alicia Mary Scott during the coverture, and the trusts of the term of 100 years were for securing to her the rent-charge of 300 a year. And the settlement provided that if a power, which Sir Henry Carr Ibbetson had exercised by a deed of even date, of charging certain estates of which he was tenant for life, with portions for younger children, should be informally executed or otherwise fail of effect, the portions should be a charge upon the estates comprised in the settlement, subject, nevertheless, to tJie claims and incumbrances subsisting thereon: and Sir Henry Can1 Ibbetson was empowered to charge the settled estates with any sum or sums, not exceeding 10,000, for any purpose or purposes whatsoever, with lawful interest for the same, and to mortgage the estates for a term of years for the purpose of raising that sum, so that the mortgaged estate should be made...
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