Johnstone v The Earl of Harrowby
| Jurisdiction | England & Wales |
| Judgment Date | 14 December 1859 |
| Date | 14 December 1859 |
| Court | High Court of Chancery |
English Reports Citation: 45 E.R. 328
BEFORE THE LORD CHANCELLOR LORD CAMPBELL.
S. C. Johns. 425; 29 L. J. Ch. 145; 1 L. T. 390; 6 Jur. (N. S.), 153; 8 W. R. 105. See Creswell v. Creswell, 1868, L. R. 6 Eq. 77.
[183] johnstone 0. the earl of harrowby. Before the Lord Chancellor Lord Campbell. Dec. 7, 14, 1859. [S. C. Johns. 425 ; 29 L. J. Ch. 145 ; 1 L. T. 390 ; 6 Jur. (N. S.), 153 ; 8 W. B. 105. See Creswell v. Creswell, 1868, L. E. 6 Eq. 77.] Legacy given simpliciter by a codicil to a legatee to whom another legacy was given by a prior codicil : Held, to be cumulative and payable out of the same funds and upon the same conditions, including exemption from legacy duty. This was the appeal of the Plaintiffs from the decision of Vice-Chancellor Sir W. P. Wood, upon a special case. The hearing before the Vice-Chancellor is reported in Mr. Johnson's Reports (page 425). The facts stated upon the special case were the following : - The late Lord Dudley Stuart, shortly after the execution of his will bearing date the 26th of November 1853, by a codicil thereto without date made the following bequest : - " I hereby bequeath out of my ready money in my [184] bankers' hands, money invested in the public funds, and other my personal estate not consisting of an estate, interest, charge or incumbrance upon lands or hereditaments within the meaning of the statute 9 Geo. 2, c. 36, the sum of 500 to the Literary Association of the Friends 1DBO.F.J.MB. JOHNSTON E V. THE EARL Off HARROWBY 329 of Poland, tke said sum to form part of the ordinary funds of the said society, and to be applied accordingly at the discretion of the council thereof." The testator died at Stockholm on the 17th of November 1854, having executed a second codicil to his will bearing date the day of hia death, whereby he made the following bequest:- " I give and bequeath to the Literary Association of the Friends of Poland in London the aum of 1000." The testator'a estate at his death consisted of. an amount of pure personalty more than sufficient to pay his debts and legacies, including the above bequests to the Literary Association of the Friends of Poland, and of a considerable amount of money on mortgage and other mixed personalty. The questions submitted upon the special case for the consideration of the Court were :- 1. Whether the legacy of 1000 given by the second codicil was cumulative, or substitutional, for the legacy of 500 bequeathed by the first codicil 1 3. If the legacy of 1000 was cumulative, whether it was payable out of the same fund as the legacy of 500 was directed to be paid out of ; or if not, then out of what funds, and in what proportions and to what amount in the whole 1 186] The Plaintiffs were certain members of the council of the Literary Association of the Friends of Poland; the Defendants, the executors of the testator. The answer of the Vice-Chancellor to the questions was that the legacy of 1000 given by the second codicil was cumulative; but was not payable out of the fund out of which the legacy of 500 was directed to be paid, but out of the testator's general personal estate; and that it must therefore abate according to the proportion that the mixed bore to the pure personalty. A third question riot submitted expressly by the special case was raised in the; course of the argument upon the appeal, viz., whether, as the legacy of 500 was expressly given by the first codicil clear of legacy duty, the second legacy was also exempt from legacy duty. This question the Lord Chancellor consented also to hear and determine, all parties to the special case joining in a request that he would determine it, and undertaking to amend the special case so as expressly to embrace; the question. : Mr. G. M. Giffard and Mr. E. Beales, for the Plaintiffs, in support of the appeal.; There cannot be a doubt that the bequest of 1000 given by the second codicil iu this case is cumulative, though given simpliciter, without any words of addition. The rule upon this subject is well expressed by Sir John Leach, in Hurst v. Beach (5 Mad. 351), where, speaking of the presumption against the intention of a double gift, he says, "The Court raises this presumption only where the double coincidence occurs of the same motive, and the same sum, in both instruments. It will not raise it [186] if in either instrument there be no motive, or a different motive, expressed, although the sums be the same; nor will it raise it if the same motive be expressed in both instruments, and the sums be different." In the instruments iti the present case no motive is expressed, and the gifts differ largely in amount. The Court ,will not hold that a bequest in a will is revoked by a codicil; unless the intention to revoke is perfectly clear. We submit that the second legacy is payable also out of the same funds as thfi first. Upon that point the Vice-Chancellor, in his judgment, drew a distinction between cases in which the second gift has been a gift simpUaiter, and those in which it has been accompanied by express words of cumulation or addition. But why are we at liberty to infer from the mere omission of express words of accretion, that the testator's intention expressed as to the first legacy does not continue as regaids the second ? It has been more than once held that legacies given, simpliciter without words of accretion to a prior legacy, and legacies given expressly in addition to a prior legacy, stand on precisely the same footing; Suisse v. Lord Lawther (2 Hare, 424); Lee v. Pain (4 Hare, 218). The cases relied upon by the Vice-Chancellor as establishing the distinction upon which he went were Leaeroft v. Maynard (1 Ves. jun. 279 ; S. C. 3 Bro. C. C. 233...
To continue reading
Request your trial
-
Kellett v Kellett
...and KELLETT. Rolls. Johnstone v. The Earl of HarronbyUNK 1 D. F. & J. 183. Fisher v. BrierlyENR 30 Beav. 268. Robertson v. PowellENR 2 H. & C. 762. Williams v. EvansENR 1 El. & Bl. 727. Alexander v. AlexanderENR 5 Beav. 518. Cookson v. HancockENR 1 Keen. 817. Cookson v. Hancock 2 M. & Cr. 6......
-
Re Smith
...would fail, together with that as to the 2000, by the gift over on the insolvency, which, on the principle of Johnstons v. Harrowby (1 De G. F. & J. 183), must attach to the additional bounty, supposing any to be bestowed by the codicil. Mr. Osborne, for the assignee of Edward Smith. [598] ......
-
Lucas v Lucas
...& War. 638. (3) 4 Beav. 425. (1) 2 Dr. & Sm. 96. (2) 2 Russ. 183. (3) 4 Beav. 425. (4) 1 Dr. & War. 638. (1) 25 Beav. 23, at p. 25. (2) 1 De G. F. & J 183 (3) 10 Hare, ...
-
Spit and Polish: A Critique of Military Off-Duty Personal Appearance Standards
...the Seventh Circuit's finding of a liberty interest in public school students' rights to control personal appearance); see also Kelley v. Johnson, 425 238, 244 (1976) (assuming that the citizenry at large possesses a liberty interest in personal appearance). 19 See, e.g., DeWeese, 812 F.2d ......
-
Environmental liabilities and the federal securities laws: a proposal for improved disclosure of climate change-related risks.
...challenge to the EPA's addition of a chemical to the section 313 list that impacted the atmosphere. In American Chemistry Council v. Johnson, (425) the court concluded that the inclusion of methyl ethyl ketone (MEK) under section 313 was improper under EPCRA. (426) The court found that MEK ......
-
Index To Book Reviews
...Society.Robert Detweiler. 445: 1991248. SAMPSON, ANTHONY. The SevenSisters: The Great Oil Companiesand the World They Shaped. HaroldL. Johnson. 425: 1561249. SERGEICHUK, S. Through RussianEyes: American-Chinese Relations.Charles B. McLane. 426: 2451250. SERVICE, ROBERT. The BolshevikParty i......
-
Name Index
...-- 387 Scovel, Cal -- 309 Scranton, Pierce E. -- 90 Seale, Elizabeth -- 373 Sedgwick, Jeffrey L. -- 258 See, Victor C., Jr. -- 177 Seeba, John -- 425 Seeley, Rodrick M. -- Sega, Ronald M. -- 162 Seidel, Cathy -- 394 Seidel, Stan -- 290 Seiler, Edward H. -- 354 Sellers, Corlis L. -- 286 Sell......
-
Pennsylvania Bulletin, Vol 46, No. 01. January 2, 2016
...No. 0915527, Public Water Supply Applicant Doylestown Municipal Authority Township Doylestown County Bucks Responsible Official Richard E. John 425 Wells Doylestown, PA 18901 Type of Facility PWS Consulting Engineer S C Engineers P. O. Box 407 Fort Washington, PA 19034 Application Received ......
-
Pennsylvania Bulletin, Vol 47, No. 04. January 28, 2017
...Public Water Supply. Applicant Doylestown Township Municipal Authority Township Doylestown County Bucks Responsible Official Richland E. John 425 Wells Doylestown, PA 18901 Type of Facility PWS Consulting Engineer S.C. Engineers, Inc. P.O. Box 407 Fort Washington, PA 19034 Application Recei......
-
Pennsylvania Bulletin, Vol 47, No. 01. January 7, 2017
...Public Water Supply. Applicant Doylestown Township Municipal Authority Township Doylestown County Bucks Responsible Official Richland E. John 425 Wells Doylestown, PA 18901 Type of Facility PWS Consulting Engineer S.C. Engineers, Inc. P.O. Box 407 Fort Washington, PA 19034 Application Recei......
-
Kansas Register, Volume 36, No. 44, November 2, 2017, Pages 1215-1242
...Judge, 3rd Judicial District Jason E. Geier, 3408 SW Westport Drive, Topeka, KS 66614. District Judge, 11th Judicial District Fred W. Johnson, 425 Commercial St., Oswego, KS Trego County Treasurer Renee Neff, 19099 210 Ave., WaKeeney, KS 67672. Succeeds Joleen Nimz, resigned. 911 Coordinati......