Jones v Jones
| Jurisdiction | England & Wales |
| Judgment Date | 30 May 1846 |
| Date | 30 May 1846 |
| Court | High Court of Chancery |
English Reports Citation: 67 E.R. 984
HIGH COURT OF CHANCERY
S. C. 10 Jur. 516. See Bradford v. Brownjohn, 1868, L. R. 3 Ch. 714; Hayward v. Pile, 1870, L. R. 5 Ch. 218; In re Marquees of Bute, 1884, 27 Ch. D. 216.
[440] jones v. jones. May I, 2, 6, 30, 1846. [S. C. 10 Jur. 516. See Bradford v. Brownjohn, 1868, L. K. 3 Ch. 714; Hayward v. Pile, 1870, L. E. 5 Ch. 218; In re Marquess of Bute, 1884, 27 Ch. D. 216.] On a devise of successive interests in leases for lives or years, where the testator directs that the leases are from time to time to be renewed, without more, the fines 5HAKE,4fl. JONES V. JONES 985 and expense of renewal are to be borne by the tenant for life and remainder-man, or parties successively entitled, in proportion to their actual enjoyment of the estate, and not in proportion to an extent of enjoyment to be determined speculatively, or by a calculation of probabilities. There is no difference in the rule as to the apportionment of fines for renewal between the devisees of successive interests in the estate, whether the leases are for lives or for years. If the testator provides a specific fund for the renewals, or directs that the renewals shall be raised or borne by the parties in a certain manner, or in certain proportions, such direction supersedes the general rule ; but if trustees, having power to direct the manner in which the fines shall be raised, do not exercise the power, the Court will pursue the general rule which would be adopted in the absence of any direction as to the manner of providing for the fines. Whether there is any difference in the rule of apportionment in cases where the parties take successive interests under wills, and in cases where such interests are taken under settlements by deed, qwxrel Whether trustees, having power to raise the fines out of the rents and profits, or by mortgage, or otherwise, as they should think fit, might so act as to throw the burden on the parties, in proportions different from those in which it would be distributed by the general rule of the Court, quayre ? Where the tenant for life pays the whole fine on renewal, he will have a lien on the estate for the proportion which shall ultimately appear to be chargeable on the remainder-man, or parties entitled in succession; and where the remainder-man renews, or the renewal is effected by means of a mortgage of the estate, the tenant for life may be required to give security to the remainder-man for a proportionate part of the fine, calculated upon the assumed duration of the life interest; and,if that interest should endure longer than such assumed period, he may be required to give further security, without prejudice in either case to the actual amount which, at the determination of his interest, shall appear to be his due proportion of the fine. W. Jones, by his will, dated in June 1803, gave, devised and appointed all his freehold and copyhold lands and hereditaments Unto the use of trustees, upon trust to convey, settle and assure the same to the use of his great-nephew, William Jones, and his assigns, during the term of 99 years, if the said William Jones should so long live, without power to commit waste, remainder to the use of the first and every other son of the said William Jones, severally and successively, according to their respective seniorities in tail male, with remainder over and with reversion to the testator's own right heirs. And the testator gave, devised and bequeathed to the [441] same trustees, the Rectory of Newport, in the county of Monmouth, and the great tithes in the parishes of St. Woollos and Bettws, held by lease from the Bishop of Gloucester, for the lives of the persons in such lease named, or to be held at the time of his decease by any renewed lease or leases, and the manor of Peterstone and the rectory and tithes of Peterstone, and all other the premises in the same county held by lease from the Dean and Chapter of Bristol, for the term of years in such lease mentioned, or to be held at the time of his decease by any renewed lease of the said premises, and all other lands and tenements of or to which he was then, or at the time of his decease, seised, possessed or entitled for any lease or leases for lives or years, to hold the said manors, rectories, hereditaments and premises, unto and to the use of the said trustees, their heirs, executors, administrators and assigns, according to the nature and quality of the same premises respectively, in trust, by such assignments and assurances as counsel should advise, to settle the said leasehold premises so that the same might be possessed, held and enjoyed by the said trustees, their heirs, executors, administrators and assigns, upon trust, by and out of the rents, issues and profits of said leasehold hereditaments and premises, yearly and every year, and in all other times and seasons, duly to pay, satisfy and perform the rents, reservations, covenants and agreements reserved and contained by and in the then subsisting indentures of lease of the said lands and tenements respectively, or which by and in the several leases to be from time to time renewed or taken thereof, as is 986 JONES V. JONES 5 HAKE, 442. thereinafter mentioned, should be reserved and contained on the lessees' part to be paid and performed, and by and out of the rents, issues and profits, or by mortgage of the said leasehold lands and tenements, or by such other ways and means as should be advisable in that behalf, forthwith to raise such sum and [442] sums of money as should be sufficient to defray the fine and fines and other charges of renewing the said lease or leases, or any future lease or leases to be granted to them or him for life or lives, or for any term of years, when and as often as there should be occasion, or as such leases had usually been renewed, and from time to time to renew the said several leases accordingly, for which purposes it should and might be lawful to and for the said trustees, their heirs, executors, administrators and assigns, when and so often as there should be occasion, or when and so often as the usual course for the renewal of the said leases should require, to surrender the subsisting leases, or the leases to be thereafter taken of all or any of the premises, and to take new leases of the same premises; and subject to the aforesaid several trusts for the providing for the renewals of the leases of the said leasehold premises, such trusts should by the settlement thereby directed to be made or declared of the said premises, as would best and nearest correspond with the uses and trusts thereinbefore directed to be limited or declared of and concerning the fee-simple hereditaments thereinbefore devised, so as the same leasehold ^premises should and might from time to time be held or enjoyed by the person or persons who for the time being should by virtue of or under the settlement thereinbefore directed to be made as aforesaid, be entitled to the possession or the rents, issues and profits of the said fee-simple hereditaments, or as near thereto as the nature and quality of the said estates and the rules of law and equity would permit; but in the intended settlement it was to be provided that, for the effect or purpose of transmission, the said leasehold premises should not vest absolutely in a son of any person thereby made tenant for ninety-nine years, if he should so long live, of the said fee-simple hereditaments, until such child attained the age of twenty-one years; and also, that if such of the said leasehold pre-[443]-mises as were or should be held for a term or terms of years, should not, under the trusts thereinbefore contained, vest absolutely in some child or grandchild of his said nephew, the said trustees, their executors, administrators and assigns, should stand and be possessed of and interested in the said leasehold premises, in trust for his nephew, the said John Jones, his executors, administrators and assigns, for his and their use and benefit. And the testator declared that such intended settlement should contain a power for the trustees, their executors, &c., to lease the premises comprised in the said lease or leases, for any period not exceeding twenty-one years, without fine; a provision for applying a competent part of the rents and profits to the maintenance of the persons for the time being entitled under the settlement; for the investment of the surplus, upon the trusts thereinafter declared, of the residuary personal estate; and a power of jointuring; and such further and other clauses, declarations and agreements conformable to the spirit, true intent and meaning of that his will, or the settlement so to be made as aforesaid, as the said trustees or the survivor of them, or the executors, administrators or assigns of such survivor, should think proper. And the testator gave to the same trustees, their executors, &c., all other his personal estate whatsoever, not specifically bequeathed, upon trust, to call in and convert and invest the same in the purchase of other lands as therein mentioned, and to settle and assure such other lands to the uses thereinbefore declared of and concerning the said devised lands and hereditaments, or as near thereto as the nature of the estates, the deaths of the parties, and other intervening circumstances would then admit of; and the testator appointed the same trustees to be executors of his will. The testator died in April 1805. William Jones, his [444] great-nephew, was then seven years of age. The trustees entered into possession of the estates, and accumulated the rents, profits and income of the freehold and leasehold estates, and the residuary personal estate to a large amount. The trustees, also, in May 1808, executed indentures of lease and release for the purpose of settling the estates according to the trusts of the will. Under subsequent appointments the Defendants, John Jones and William Vaughan...
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