Kerr v The Middlesex Hospital
| Jurisdiction | England & Wales |
| Judgment Date | 18 December 1852 |
| Date | 18 December 1852 |
| Court | High Court of Chancery |
English Reports Citation: 42 E.R. 996
BEFORE THE LORD CHANCELLOR LORD ST. LEONARDS AND THE LORDS JUSTICES
S. C. 22 L. J. Ch. 355; 17 Jur. 49; 1 W. R. 93. See In re Taber, 1882, 51 L. J. Ch. 723.
[576] kerr v. the middlesex hospital. Before the Lord Chancellor Lord St.. Leonards and the Lords Justices [Knight Bruce and Lord Cranworth]. Dec. 18,. 1852. [S. C. 22 L. J. Ch. 355 ; 17 Jur. 49 ; 1 W. E. 93. See In re Taler, 1882, 51 L. J. Ch. 723.] A testator by his will gave certain annuities in the following terms : " I desire that my executors shall purchase annuities for each of my two sisters, E. B. and E. F., of 100 a year each, the said annuities to be purchased in the British Funds."" After giving other annuities simplidter and legacies, the testator added, " I direct. 3DEO.M. &0.577, K.EBR V. THE MIDDLESEX HOSPITAL 997 my landed property at O. to be sold, and the produce to go to the carrying out of the aforesaid annuities and legacies; and should the produce of the said sale not be found sufficient for that purpose, I desire that the remainder shall be made up from my personal property;" and he directed the remainder of his personal property "after the above annuities and all legacies have been paid and effected," to be laid out" in the purchase of an annual income in the 3 per cent, consols," for the benefit of a hospital. Held, dissentiente Lord Justice Lord Cranworth, that the annuities to E. B. and E. F. were perpetual annuities. This was an appeal by Eliza Byrne, one of the Defendants and annuitants under the will of Sir J. De Courcy Laffan, from the decree of the Master of the Rolls, on the 12th June 1852, whereby it was declared that, according to the true construction of that will, the annuity thereby bequeathed to the Appellant was determinable upon her death. The following are the testamentary instruments under which the question -arose. " In the name of God, Amen. I, Joseph De Courcy Laffan, Baronet, of Otham in Kent, England, do make this my last will and testament, revoking and annulling -all former testamentary papers. I leave all my property, of whatever kind it may be, in England or elsewhere of which I shall die possessed, to Thomas Knox, Earl of Raufurly, in Ireland, and Charles Kerr, Esq., of the house of Fletcher, Alexander, & Co., of King's Arms Yard, London, and Henry Houndle, Esq., of the Adjutant-General's Office, Horse Guards, London, to have and to hold the same in trust for the following purposes. I leave to my well-beloved daughter-in-law, Frances Logier (daughter of my late wife and Colonel Michael Symes), and now married to the Rev. Mr. Logier, of Lausanne in Switzerland, the sum of 3000 sterling, [577] to hold the same independent of her husband, and to be disposed of by her will, properly signed and executed. I leave to my sister, Jane Symes, and the Rev. Mr. Logier, husband of the aforesaid Frances Logier, the sum of 1000 each. I desire that my executors .shall purchase annuities for each of my two sisters, viz., Mrs. Eliza Byrne, of Thurles, Ireland, and Mrs. Ellen Fitzpatrick, of Killenall, Ireland, of 100 a year each, the said annuities to be purchased in the British Funds. I leave 50 a year to my niece Mrs. Catherine Quinlan, now living at Lough near Thurles, Ireland, to hold the same independent of her husband. I leave 25 a year to each of my nieces Ellen and Susan Laffan, and also 25 a year to Joseph Laffan, children of my late brother John Laffan. I leave to Charlotte Cadogan, Marchioness of Anglesea, 1000. I leave to Isabella Sheldon, of Brailshawe, England, 100 as a mark of my affectionate esteem. I leave to Dr. Verity, physician to the British Embassy, 100 as a mark of my friendship. I direct my landed property at Otham to be sold by auction, and the produce to go to the carrying out of the aforesaid annuities and legacies; and should the produce of the said sale not to be found sufficient for that purpose, I desire that the remainder shall be made up from my personal property. I direct all my personal property in the funds of the East India Company, the Bank of England, the Dutch Funds, the Neapolitan Funds, the French Funds, the French Lyons Railway shares, the Water Company of New York, the Erie Canal Company of America, to be sold. After the above annuities and all legacies have been paid and effected, I desire the remainder of my personal property shall be laid out in the purchase of an annual income in the 3 per cent, consols for the benefit of a cancer ward in the Middlesex Hospital of London. I leave and bequeath 300 to each of my executors, and I constitute and [578] appoint the above said Earl of Raufurly, Charles Kerr, .and Henry Houndle, to be my executors and trustees." " The first codicil to my will, made and signed at Vichy in France, and which is now in the hands of Messrs. Wise Wiler of Madrid.-I leave and bequeath to my nephew, Captain R. Laffan, of the Royal Engineers, all my interest and property in -the East India Funds or Stocks. I also leave to the same Captain R. Laffan Aforesaid my estate and landed property in Otham, Kent. I leave and bequeath 50 -a year to Mrs. Catherine Quinlan, my niece. I leave and bequeath to Joseph Laffan, my nephew, 50 a year over and above what I left him in my will." Mr. Elmsley and Mr. F. Riddle, for the Appellant. The gift of the annuity being accompanied with a dedication of the estate which was to produce it (in the present case the landed property at Otham having been directed to be sold), the 998 KERB V. THE MIDDLESEX HOSPITAL 2 DB 0. M. * 0.879, annuity is thus rendered perpetual, Stokes v. Heron (12 Cl. & Fin. 161); there is also an express additional provision out of the personal estate, if the produce of the sale of the real estate should be found insufficient; and it can make no difference on the construction of this gift, that by the codicil the Otham estate is subtracted from the purpose to which by the will it was devoted. Though there are no words-of limitation in this gift, yet the absence of such words cannot derogate from the quantity of the gift...
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