James Ackers (an Infant, by N. C. Milne, his Guardian) v Phipps (Widow)
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1835 |
| Date | 01 January 1835 |
| Court | High Court of Chancery |
English Reports Citation: 6 E.R. 1586
FROM THE COURT OF CHANCERY.
Mews' dig. xiv. 1524; xv; 1441, 1769; S.C. 9 Bli. N.S. 430. And see Phipps v. Ackers, 3 Cl. and F. 702; 9 Cl. and F. 583; and S.C. in Ch., 5 Sim. 44; 1 L.J. Ch. 96. Cp. In re Townsend's Estate 1886, 34 Ch.D. 357.
[665] APPEAL from the court of chancery. JAMES ACKERS (an Infant, by N. C. MILNE, his Guardian),-Appellant; SOPHIA PHIPPS,* Widow,-Respondent. [Mews' Dig. xiv. 1524; xv; 1441, 1769; S.C. 9 Bli. N.S. 430. And see Phipps v. Ackers, 3 Cl. and F. 702; 9 Cl. and F. 583; and S.C. in Ch., 5 Sim. 44; 1 L.J. Ch. 96. Cp. In re Toimsentfs Estate 1886, 34 Ch.D. 357.] A testator devised all his freehold, copyhold, and leasehold messuages, lands, tenements, rents, and hereditaments, and all other his real and personal estate, whatsoever and wheresoever, not before disposed of, to trustees, with power to sell and absolutely dispose of, or to exchange or let, all or any part or parts of his said estate, upon trust, as to a certain part, to convey and assure that part to his godson, G. H. A., when and so soon as his godson should attain 21; and also to pay to G. H. A. £7000 upon his attaining 21. But in case G. H. A. should die without issue before attaining 21, then the said part of the real estate, together with the £7000, was to sink into and become part of the residue, and to go according to the disposition thereof, thereafter in the will expressed. As to the rest, residue, and remainder of his personal estate, he directed it to accumulate at compound interest until J. C. A. should attain 24 years, then upon trust to convey, assign, etc. unto J. C. A. (upon his giving such security, and executing such deeds for the payment of annuities before bequeathed to other persons, as should be to the satisfaction of the trustees) all the legal estate and interest of and in all the freehold, lease- * The appeal had abated before the hearing by the death of this Respondent, and was revived by an order of the House in her executors and devisees. 1586 ACKERS V. PHIPPS [1835] III CLARK & FINNELLY. hold, and copyhold lands;, tenements, rents, and hereditaments, and all other the testator's [666] real and personal estate, whatsoever and wheresoever, not thereinbefore devised a,nd bequeathed. held, that this gift to J. C. A. displaced the heir at law as to the residuary gift of real and personal estate; that J. C. A. took a vested interest in the intermediate rents and profits, and that the words respecting his executing deeds and assurances did not constitute a condition precedent. James Ackers, by his will, dated the 13th of April 1822, after directing his debts and funeral and testamentary expenses to be paid out of his personal estate, gave and bequeathed to his wife, Anne Ackers, for her life, his capital messuage or dwelling-house, with the out-buildings, gardens, land, and appurtenances: thereto belonging, situate at Lark-hill, within Salford, in the county of Lancaster, which he held, together with other land, by lease from the Earl of Derby; and also the use of his household and other goods, furniture, plate, etc., which should be found in his said dwelling-house at the time of his decease; and in case of the death of his said wife before his interest in the premises should expire, then he directed that the said dwelling-house, land, and premises, and the household goods and chattels,should revert to his executors, and be applicable to the purposes of his will, thereinafter set forth, concerning his personal estate. The testator then gave several pecuniary legacies, which he directed to be paid, some within one year, and others within three months after his decease; and he gave and devised all his freehold and copyhold messuages, lands, tenements, rents, and hereditaments, and moieties, parts and shares of messuages, lands, tenements, rents, and hereditaments, whatsoever and wheresoever, situated, standing, lying, arising, and being in the United Kingdom of Great Britain and Ireland; [667] and also all and every his leasehold messuages, lands, tenements, rents, and hereditaments respectively, and all other his real and personal estate and effects, whatsoever and wheresoever, not thereinbefore disposed of, unto Edward Hobson and Benjamin Williams, their heirs and assigns, for ever, or for such other estate or estates as he had therein respectively, upon trust^asi to his said lands,hereditar ments, and real estates, that they, his said trustees, should keep and continue the same in good repair, and set, let, and manage the same for1 the utmost benefit and advantage; and upon further trust and direction, that it should be lawful for them, at any time or times after his decease, to sell all or any parts of his real estate (except the messuage and premises devised to his wife, during her interest therein, and also the land, hereditaments, and premises thereinafter devised to his godson, George Holland Ackers), and to' convey the fee-simple thereof to any person or persons whomsoever, either in parcels for building upon, or otherwise improving the same, at such yearly, chief, or other rents, as they his trustees should think fit; and that when any of the said premises sho'uld be sold, the rents, to: be reserved upon such sales should be vested in the trustees upon the trusts in his, will expressed, concerning his real estate. And he empowered his trustees to exchange any of his said lands and hereditaments for other lands, and to, make partition of any lands of which he was joint proprietor, and he directed that the lands to be taken in exchange or divided should become vested in his trustees upon the trusts of his will, and that the monies to arise from the sale or sales of his estates should be added to his personal estate; and as to his personal estate, money in the public funds, money out at interest, and securities for money, rents, arrears [668] of rent, goods, chattels, and effects of what nature or kind soever, not thereinbefore specially bequeathed, he gave and bequeathed the same to his said trustees, their executors, administrators, and assigns, upon trust, in the first place, to pay thereout to his said wife an annuity of £3000 for her life, etc, The will then proceeded thus, " And as to, for, and concerning all my messuages, lands, and premises, situate, lying, and being in Wheelock, in the county of Chester, purchased by me from Mr. Hillidge and Mr. Lockett, they my said trustees, and the survivor of them, and the heir of such survivor, shall stand seised and be post-sessed thereof, in trust, and to the intent and purposes, to assign, convey, and assure the same unto my godson, George Holland Ackers, eldest son of my nephew, George Ackers, when and so soon as he, my said godson, shall attain his age of 21 years; and also do and shall pay unto my said godson, George Holland Ackars, the sum of 1587 Ill CLARK & FINNELLY. ACKERS V. PHIPPS [1835] £7000 a,t and upon his attaining his said age of 21 years. But in case my said godson, Geo-rge Holland Ackers, shall depart this life before he attains the said age of 21 years, without leaving issue of his body lawfully to be. begotten, then, and in such case, the said messuages, land, and premises, in Wheelock aforesaid, hereinbefore given and devised to him, together with the said sum of £7000, shall sink into and become part of the residue of my real and personal estate, and go according to the disposition thereof, hereinafter expressed and contained." The will continued : " And as to' the rest, residue, and remainder of my personal estate, not by this my will specifically disposed of, upon trust, that they my said trustees, and the survivor of them, his executors and administrators, do and shall, after payment thereout of all my just debts, funeral, and testamentary [669] charges, and all annuities and yearly sums of money, and legacies given by this my will, together with all such sum and sums of money as may be necessary for the management and repairs of my real and personal estate, invest the overplus in the Parliamentary stocks or public funds of Great Britain, or at interest upon government securities in England, to be altered and varied as they, my said trustees or trustee, shall think proper, and that the resulting income and produce thereof ma/ be accumulated by way of compound interest, until James Coops, son of Ann Coops (some time ago residing in Salford), and which said James Coops was born on or about the 4th day of August in the year 1811, shall arrive at and attain the age of 24 years; then upon trust, that they, my said trustees and the survivor of them, and the heirs, executors, and administrators of such survivor, shall convey, assign, transfer, pay, and make over, by proper and effectual conveyances, transfers, payments, and assurances in the law, unto the said James Coops, upon his giving such security, and executing such deeds and assurances', to the satisfaction of the said trustees or trustee for the time being, or as their or his counsel shall advise, for the regular payment of the said several annuities hereinbefore bequeathed, all the legal estate and interest of and in all my said freehold, copyhold, and leasehold messuages', lands, tenements, rents, and hereditaments, and moieties, parts, and shares of messuages, lands, tenements, rents, and hereditaments, situate, standing, lying, arising, and being in the United Kingdoms of Great Britain and Ireland, and all other my real and personal estate and effects, whatsoever and wheresoever, not hereinbefore given, devised, and bequeathed." The testator then directed that his trustees should [670] place James Coops at school, and give him an education at one of the universities, and pay for his maintenance and education such sum or sums out of the income of the testator's personal estate as they should think necessary, not...
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