Jonathan Bullock and Others, - Appellants; Charlotte Dorothy Downes and Others, - Respondents
| Jurisdiction | England & Wales |
| Judgment Date | 24 July 1860 |
| Date | 24 July 1860 |
| Court | House of Lords |
English Reports Citation: 11 E.R. 627
House of Lords
Mews' Dig. iii. 2032; xv. 832, 834, 932. S.C. 25 Beav. 54. Followed in In re Ranking's Settlement Trusts, 1868, L.R. 6 Eq. 604; Mortimore v. Mortimore, 1879, 4 A.C. 448; distinguished in Stockdale v. Nicholson, 1867, L.R. 4 Eq. 369; and cf. In re Rees, Williams v. Davies, 1890, 44 Ch. D. 490.
Will - Next of Kin - Statute of Distributions - "Then" - Life Interest - Joint Tenancy - Residue - Acquiescence - Statute of Limitations - Trust.
REPORTS OF CASES heard in the House of Lords, and decided during the Sessions 1860-62. By charles clabk, Barrister -at-Law. Vol. IX. JONATHAN BULLOCK and Others, - Appellants; CHARLOTTE DOROTHY DOWNES and Others,-Respondents [June 7, 8; July 24, I860]. [Mews' Dig. iii. 2032; xv. 832, 834, 932. S.C. 25 Beav. 54. Followed in In re Banking's Settlement Trusts, 1868, L.R. 6 Eq. 604; Mortimore v. Mortimore, 1879, 4 A.C. 448; distinguished in Stockdale v. Nicholson, 1867, L.R. 4 Eq. 369 ; and cf. In re Bees, Williams v. Davies, 1890, 44 Ch. D. 490.] Will-Next of Kin-Statute of Distributions-" Then "-Life Interest-Joint Tenancy-Residue-Acquiescence-Statute of Limitations-Trust. A. D., after specific bequests to different members of his family, gave the residue to three persons, in trust to pay the dividends to his son for life, and after the son's decease to pay to any widow of the son (who was not then married) an annuity of 600 for life, and the residue to his son's children, and, in case there should not be any child of the son " then to stand possessed of the same, in trust for such person or persons of the blood of me, as would by virtue of the Statutes of Distributions of Intestates' Effects have become, and been then entitled thereto, in case I had died intestate." At A. D.'s death, he left the son and four daughters him surviving. The son married, enjoyed the dividends of the residue during life, and died without ever having had a child : Held that the word then, even if treated as an adverb of time, referred only to the time when the persons entitled would come into possession of what had been bequeathed to them; that the persons entitled were to be ascertained at the death of the testator; that the son was one of those persons, and that his right as one of the next of kin was not affected by the previous gift of a life interest in the whole of the residue, so that, on the death of the son without issue, the residue became divisible into five shares, of which his personal representatives took one, and his sisters the other four: [2] Held also (dub. Lord Wensleydale), that these shares were not taken in joint tenancy, for where there is a bequest to persons who should have been entitled under the Statute of Distributions, they take as if there had been an intestacy. During the life of the son, and till the time of filing the bill, which was 24 years after his death, all the members of the family had believed, and had done many acts on the belief (not the result of legal discussion, but a mere family assumption) that the son was not entitled to a share of the residue as one of the next of kin, but that his title to the property expired with his life estate: Held that this was not such an acquiescence in a family arrangement as prevented the son's personal representatives from enforcing their claim. Held also, that the length of time was not a bar under the Statute of Limitations, for that the will created a trust. 627 IX H.L.C., 3 BULLOCK V. DOWNES [I860] Semble the 40th Section of 3 and 4 Will. 4, c. 27, applies to legacies charged on land. The Rev. Andrew Downes, of Witham, in the county of Essex, made his will and codicil, dated respectively 19 June and 2 July 1815, and thereby, after making specific provision by gift and annuity for different members of his family, gave all the residue of his estate and effects to the Respondent, Jonathan Bullock, and two other persons, John Bullock and Thomas Wiglesworth (both of whom have since died), upon the following, among other trusts : to pay the interest of the residuary property to his son, Robert Downes, for life, and, after the son's decease, to the son's widow (if any), an annuity not exceeding 600, as the son should appoint, and to the son's children (who however took no vested interests at birth); and the will then went on, " and in case there shall not be any child or children of my said son Robert Downes, who, under the trusts aforesaid, should obtain a vested interest in the said trust monies, etc., then do and shall stand and be possessed of the said trust monies, etc., and the interest, dividends, and annual produce thereof, in trust for, and to pay, assign, and transfer the same monies, etc. unto such person or [3] persons of the blood or next of kin of me the said Andrew Downes as would, by virtue of the Statutes of Distribution of Intestates' Effects, have become and been then entitled thereto in case I had died intestate." The testator died 19 October 1820, leaving a widow and five children, the ison Robert and four daughters. The son married in May 1821, and, under the oowers given him in the will, settled an annuity of 600 on his widow. The son received the interest of the residuary property during his life. He and all the rest of the family, apparently on the opinion of Mr. Wiglesworth, acted on the assumption that, in case of his death without children, the residuary property (subject to the 600 annuity) would become vested in the testator's four daughters. On this assumption, his mother advanced him sums amounting to 7500, and made a settlement on him, his executors, etc. of an additional sum. The son died in February 1832, never having had a child. He had previously made his will, appointing his wife his universal legatee, and, with two other person% his executrix and executors. After his death, the executors of the father went on upon the same assumption as before, and paid the dividends of the residuary property to and among the four daughters, and transferred to them and their children some portions of the capital. In 1856 the son's widow and his executors filed a bill against the surviving executor of Andrew Downes and the other necessary parties, praying that the trusts of the will of Andrew Downes might be carried into effect, that accounts might be taken, and the estate applied in a due course of administration, and that the son's widow might be declared entitled to one-fifth part of the residue of the testator's estate. Answers we're put in, and, among other things, the benefit of the Statute of Limitations was claimed. The cause was [4] heard before the Master of the Rolls, who, by a decree, made on the 1st May 1858 (25 Beav. 54), declared that, " on the death of Robert Downes without issue, the residuary property became divisible, in equal shares, among the next of kin of the testator, Andrew Downes, living at his death," and that the Plaintiffs, as executrix and executors of Robert Downes, were entitled to one-fifth share; and the necessary inquiries and accounts were directed. The appeal was against this decree. Sir H. Cairns and Mr. Follett (Mr. H. W. Busk waa with them) for the Appellants.-The proper construction of this will is, that the gift over can only arise on the death of the son and the failure of the son's issue. The word then, as used in this will, refers alone to that time, and, consequently, indicates only, as next of kin of the testator, those who bore that character at the son's death without issue. The most recent decision on this subject, Wharton v. Barker (4 Kay and Joh. 483), where this case itself was cited, is perhaps the most applicable. There a residue was given to two daughters-as to one half, to Mary; as to the other, to Sarah, with cross-remainders, and in case both should die without issue, " then I direct my trustees to pay one-half to the person who shall then be considered my next of kin and personal representative, agreeable to the Statute of Distributions; and the other half to the persons who shall then be considered the next of kin and personal representative of my late wife, agreeable to the order of the Statute of Distribu- 628 BULLOCK V. DOWNES [i860] IX H.L.C., 6 tions." The two daughters survived the testator; both died without issue. It was held that the persons entitled were to be ascertained at the death of the surviving daughter, although there the statute [5] itself was most distinctly referred to. Nevertheless it was not held there to do more than designate the persons who were to take. It is admitted that the decisions do not appear to be uniform, but, when examined, it will be found that where, as in the present case, the expression used implies a future time, the objects of the gift over must be ascertained at the failure of the life estate, Jones v. Colbeck (8 Ves. 38), Miller v. Eaton (Sir G. Coop. 272), Clapton v. Bulmer (5 Myl. and Cr. 108), Long v. Blackall (3 Ves. 486), Holloway v. Holloioay (5 Ves. 399), Briden v. Hewlett (2 Myl. and K. 90), Butler v. Bmhnell (3 Myl. and K. 232), Withy v. Mangles (10 Clark and Fin. 215), Holloway v. Radcliffe, where the distinction between words having a future or a past signification, is strongly remarked on by the Master of the Rolls (23 Beav. 169). Gundry v. Penniger (14 Beav. 94; 1 De G. M. and Gord. 502), Gable v. Cable (16 Beav. 507), Wheeler v. Addams (17 Beav. 417), do not affect this case, for they depend on the particular words of each will. But assuming that the son was to be included among those entitled to a share of the residue, as next of kin, the class being ascertained at the death of the testator, and there being no expression to indicate the nature of the interests taken, if, is clear that he took, as if all the persons to take had been named in the will, that is as one of five joint tenants, Richardson v. Richardson (14 Sim. 526), and nothing...
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