Jervoise v The Duke of Northumberland
| Jurisdiction | England & Wales |
| Judgment Date | 11 July 1820 |
| Date | 11 July 1820 |
| Court | High Court of Chancery |
English Reports Citation: 37 E.R. 481
HIGH COURT OF CHANCERY
See Magennis v. Fallon, 1828, 2 Moll. 573; Stonor v. Curwen, 1832, 5 Sim. 268; Archer v. Slater, 1841, 11 Sim. 507; Earl of Lincoln v. Arcedeckne, 1844, 1 Coll. 102; Pyrke v. Waddingham, 1852, 10 Hare, 9; Collard v. Sampson, 1853, 4 De G. M. & G. 29; Egerton v. Lord Brownlow, 1853, 4 H. L. C. 189; Shelley v. Shelley, 1868, L. R. 6 Eq. 548.
jervoise v. The Duke of northumberland. July 4, 8, 11, 1820. [See Magennis v. Fallen, 1828, 2 Moll. 573 ; Stonor v. Gurwen, 1832, 5 Sim. 268 ; Archer v. Slater, 1841, 11 Sim. 507; Earl of Lincoln v. Arcedeckne, 1844, 1 Coll. 102 ; Pyrke v. Waddingham, 1852, 10 Hare, 9 ; Collard v. Sampson, 1853, 4 De G. M. & G. 229 ; Egerton v. Lord Brownlow, 1853, 4 H. L. C. 189 ; Shelley v. Shelley, 1868, L. R. 6 Eq. 548.] Devise of copyhold estates, the legal estate being outstanding," To my son R. W. G., to be entailed upon his male heirs, and failing such to pass to his next brother, and so on from brother to brother, allowing £2500 to be raised upon the estates for female children each." Whether a trust executed or executory; and if the latter, whether an estate tail in R. W. G. 1 Qu. The point too doubtful to compel a purchaser to take the title. No difference between marriage articles and executory trusts in wills, except that the former afford prima facie evidence of intent, which does not belong to the latter. R. W. Grey being entitled to certain copyhold estates, which had been surrendered to trustees in trust, as he should by will appoint, and in default [560] of appointment, in trust for himself, his heirs and assigns, subscribed a paper writing, dated the 24th of August 1811 ; in which, after augmenting the portions of his younger sons, and bequeathing certain legacies to his wife and daughters, who had been provided for by a previous will, he expresses himself as follows. " To my son Ralph William Grey, I leave all my estates at Back-worth, Hollywell, Earsdon, and Benton and Shire Moor, to be entailed upon his male heirs, and failing such to pass to his next brother, and so on from brother to brother, allowing £2500 to be raised upon the estates for female children each; the above-named estates are to be liable to all my debts at my decease, and to the fortunes left to my younger children, unless otherwise discharged. I direct my estates at Preston, and the Rake in Monck Seaton, and my shares of coals at Gillsfield, Fawden, and Redingfield, and lease of Eighton Banks, to be sold in order to raise money for the above named legacies, &c., and what falls short to be raised or charged on the other property before named at Backworth, Hollywell, Earsdon, Benton Moor, and Shire Moor." The testator died, leaving his son R. W. Grey, his heir at law according to the custom of the manor, of which the estates devised to him, and which were all copyhold, were held; the above instrument, which was not executed in the presence of, or attested by any witness, was afterwards declared to be his will by the Consistory Court of Durham. In the year 1816, a bill was filed by R. W. Grey, the son, against the trustees, in whom the legal estate in the copyholds was vested, and others, for the purpose of having the rights of all parties declared, and on the 17th of August 1816, the Vice-Chancellor decreed, that under the above instrument, R. W. Grey was entitled [561] to an estate in tail male in the copyhold estates. (Note : This was set down before his Honor as a short cause, but it was admitted that the question was argued at considerable length.) The estates were afterwards settled by Mr. Grey on his marriage, and the present bill, stating the above facts, and also other instruments relating to the title, was filed by himself and the trustees of his settlement, which contained a power of sale, to compel the specific performance of an agreement for the sale of part of these estates. The Defendant, by his answer, submitted to perform the contract if a good title could be made. A motion was now made for the payment of the purchase-money, £95,000, into Court, with the view of obtaining the opinion of the Court on the effect of the above instrument. Mr. Shadwell, Mr. Ellison, and Mr. Clayton, in support of the motion. The rule 0. xvii.-16 482 JERVOISE V. NORTHUMBERLAND (DUKE OF) 1JAC. & W. 562, ia, that where the Court is to execute a settlement in conformity to an instrument merely testamentary, and not in conformity to articles of'agreement before marriage, or to any other instrument where a particular consideration appears, .which 'may induce the Court to adopt a different construction, it will adhere to the ordinary meaning of the words. In Leonard v. The Earl of Sussex (2 Vern. 526), and Papillon v. Voice (2 P. Wms. 471), besides the words directing how''the estate's were to be conveyed, there were words evidently expressing the intention of -the donor, that the estate should not be absolutely in the power of tho first taker ; in the former, that the sons should not have power to dock the entail; in the latter, the estate for life was to be without impeachment of waste, and there was also [562] a limitation to trustees to preserve contingent remainders^ and a- power of jointuring. In Lord Glenorchy v. Bosville (Ca. T. Talb. 3), the estate was directed to he for life only, and without impeachment of waste. Blackburn v. Stables (2 Ves. & Bea. ,'!67) is however precisely in point.; that was a weaker case for giving an estate of inheritance than the present, and it establishes the proposition before stated. Suppose the testator had said, I give all my estates to my son R. W. Grey, and his male heirs, and failing such, &c., it clearly would have been an estate tail in him. Now here there is nothing to cut down what the law assumes to have been the intention of the testator, viz. that the eldest son should have an estate in tail male, because there is nothing to show he was intended to have less_. The subsequent words to his next brother, &c., only indicate an intention that they should take successive estates tail. This is the distinction between this and the two first-cited cases, but it is supposed to have been overruled by Your Lordship in The Countess of "Lincoln v. The Duke of Newcastle, (12 Ves. 227, 2.'!0). The observation, however, in that case is fully explained by the Master of the Rolls, in Blackburn v. Stables, and it is also alluded to in Stratford v. Powell (1 Ball & Ben. 1). Moreover here the legul estate was outstanding, and the testator was himself a party to the deed by which it...
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