James O'Toole against Edward Francis Browne
| Jurisdiction | England & Wales |
| Judgment Date | 28 April 1854 |
| Date | 28 April 1854 |
| Court | Court of the Queen's Bench |
English Reports Citation: 118 E.R. 1256
COURTS OF QUEENS BENCH AND THE COURT OF EXCHEQUER CHAMBER.
S. C. 23 L. J. Q. B. 282; 18 Jur. 1113; 2 W. R. 430. Approved, Dobson v. Bowness, 1868, L. R. 5 Eq. 408. Applied, Bunbury v. Doran, 1875, Ir. R. 9 C. L. 285.
[572] james o'toole against edward francis browne. Friday, April 28th, 1854. O., being then possessed of personalty only, by will executed in 1849, after bequests of money and chattels, added : "all the rest, residue and remainder of my goods, chattels, stock in trade, estate and effects, of what nature or kind soever, not hereinbefore given or bequeathed, I give and bequeath unto" B. and T., executors of the will, " to hold to them, the said B. and T., their executors, administrators and assigns," upon trust to "sell and dispose thereof," and call in and receive all debts, " and place the moneys arising by such sale or disposal" upon Government or other security, receive the interest and dividends, and pay the same to testator's wife for life during her widowhood; and, if she died or married again, to apply the same, or a sufficient part thereof, to the maintenance of his children till they should come of age : and, when the youngest should come of age, to divide the said residue and the interest equally among the children.- After the execution of the will, O. purchased land.-Held that, under stat. 7 W. 4 & 1 Viet. c. 26, ss. 3, 24, such land passed by the residuary clause. [S. C. 23 L. J. Q. B. 282; 18 Jur. 1113 ; 2 W. R. 430. Approved, Dobson v. Sowness, 1868, L. E. 5 Eq. 408. Applied, Bunbury v. Daran, 1875, Ir. R. 9 C. L. 285.] Ejectment for dwelling bouse and land in Cheshire. Defendant appeared as owner, (c) Wightman J. had left the Court. 3 EL. & BL. 873. O*TOOLE V. BROWNE 1257 By order of Coleridge J., add by consent, the parties, without proceeding to trial, stated the facts fot the opinion of this Court, upon a case which was substantially as follows. John OToole, the testator after mentioned, made his will in writing, dated 10th November 1849, duly signed and attested as required to give validity to a testamentary disposition. By the will, he gave to a sister 5001.; to a brother his share in a ship; to William Thompson, an executor and trustee after mentioned, 2001.; to Edward Francis Browne, also an executor and trustee after mentioned, 1001. "Also I give and bequeath unto my beloved wife, Eliza O'Toole, all my plate, linen, china, household goods and furniture. All the rest, residue and remainder of my goods, chattels, stock in trade, estate and effects, of what nature or kind soever, not hereinbefore given or bequeathed, I give and bequeath unto the said Edward Francis Browne, of'&c., "and William Thompson, of" &c. : [573] "To hold to them, the said E. F. Browne and W. Thompson, their executors, administrators and assigns, upon this special trust and confidence nevertheless, that is to say, that they, my said trustees, or the survivor of them, do and shall, as soon as convenient after my death, sell and dispose thereof, and call in and receive all such debts, sum or sums of money, as shall be due or owing to me at the time of my death, and place the moneys arising by such sale or disposal upon Government or other good and sufficient security, in their own names, and in such manner as they shall think proper; and also in trust that they do and shall receive the interest and dividends thereof, from time to time, as the same shall become payable, and pay the same unto my beloved wife, Eliza O'Toole, during her lifetime, and as long as she remains my widow ; and, in case my said wife either die or marry again, then in trust that they shall pay, apply and dispose of the same aforesaid interest and dividends of such moneys, or a sufficient part thereof, for and towards the sole maintenance, education and support of my children now living, or any other child or children that my said wife may be enceinte with at the time of my death, until my said children shall severally and respectively attain their said ages of twenty one years; and, when the youngest of my children shall have attained his or her age of twenty one years, in trust to pay, assign, transfer and convey all the said residue of my estate and effects, with the interest, dividends and produce thereof, equally unto and amongst all ray said children then living." Direction that neither trustee should be liable for losses, nor answerable except for his own acts; and that the trustees should reimburse themselves the reasonable [574] costs, &c. of executing the will and trusts. " And, lastly, I do hereby nominate, constitute and appoint my said trustees, the said E. F. Browne and W. Thompson, executors of this my will and testament." At the time of the execution of the will, the children of the testator then living were the plaintiff James O'Toole, Mary Elizabeth O'Toole, Joseph O'Toole, and Margaret O'Toole : and thore is also another child of the testator now living, viz. Mary Alice O'Taole, who was born since the date of the will. W. Thompson, one of the executors and trustees, died on 10th October 1852. Mr. Browne, the other executor and trustee, is the defendant hereto. The testator died on 30th January 1853, without having revoked or altered his will, leaving the said Eliza O'Toole, his widow, and the several children above named. The plaintiff, James O'Toole, is the...
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