King v Cleaveland
| Jurisdiction | England & Wales |
| Judgment Date | 02 July 1859 |
| Date | 02 July 1859 |
| Court | High Court of Chancery |
English Reports Citation: 45 E.R. 186
BEFORE THE LORD CHANCELLOR LORD CAMPBELL AND THE LORD JUSTICES.
S. C. 26 Beav. 26, 166; 4 Jur. (N. S.), 702; 28 L. J. Ch. 835; 7 W. R. 602. See Stockdale v. Nicholson, 1867, L. R. 4 Eq. 367. Followed, In re Philps's Will, 1869, L. R. 7 Eq. 153; Burt v. Hellyar, 1872, L. R. 14 Eq. 160. Commented on, Wing v. Wing, 1876, 34 L. T. 941. See Wingfield v. Wingfield, 1878, 9 Ch. D. 665; Keay v. Boulton, 1883, 25 Ch. D. 216; In re Thompson, 1886, 55 L. T. 86; In re Woolley [1903], 2 Ch. 208.
186 KING V. CLEAVELAND 4 DE Q. fc J. 477. [477] king e. cleaveland. Before the Lord Chancellor Lord Campbell and the Lord Justices. June 24, July 2, 1859. [S. C. 26 Beav. 26, 166; 4 Jur. (N. S.), 702; 28 L. J. Ch. 835; 7 W. R. 602. See StocMala v. Nicholson, 1867, L. R. 4 Eq. 367. Followed, In re Philpsts Witt, 1869, L. R. 7 Eq. 153; Burt v. HellyaT, 1872, L. R. 14 Eq. 160. Commented on, Wing v. Wing, 1876, 34 L. T. 941. See Wingfield v. Wingjield, 1878, 9 Ch. D. 665; Keay v. Boulton, 1883, 25 Gh. D. 216 ; In re Thompson, 1886, 55 L. T. 86 ; In re Weolley [1903], 2 Ch. 208.] Stock was bequeathed in trust for the testator's brother and the brother's wife for their lives successively, and after their decease in trust to be divided equally amongst the testator's nephews and nieces, children of the brother, then living, or their legal personal representatives. Held, that the representatives of nephews and nieces dying in the lifetime of the surviving tenant for life took shares, and that such representatives were the next of kin, and not the executors or administrators of the nephews and nieces. This was an appeal from the decision of the Master of the Rolls upon the construction of a will. Samuel Cleaveland, by his will dated the 3d of August 1841, bequeathed as follows:-" I give and bequeath to the said Richard Francis Cleaveland and John Tregonwell King, and the survivor of them, his heirs, executors and administrators, the sum of 4000 (being a part of 7000 now standing in my name in the Three and a Half per Cent. Annuities or Funds of this kingdom) upon trust, to stand possessed thereof and to pay and apply the interest and dividends thereof to and for the use and behoof of my brother Richard Francis Cleaveland and his wife Eliza Cleaveland, and the survivor of them, for his and her natural lives. And after the decease of my said brother and his said wife, then in trust to pay and apply the said sum of 4000 stock equally amongst my nephews and nieces, children of my said brother Richard Francis Cleaveland and his said wife then living, or their legal personal representatives, share and share alike." The testator died on the 31st of March 1844. Richard Francis Cleaveland and Eliza his wife had seven children, four of whom were Defendants. Two others died in 1843, in the lifetime of the testator. One of them, named Richard Francis Cleaveland, left a widow and children. The other, Henrietta Maria Cleaveland, married the Appellant George Foster St. [478] Barbe. At her death, in 1843, her father was her next of kin, and the Appellant became her administrator. The remaining child, George Cleaveland, died in 1855, leaving a widow and children. His widow was his administratrix. Richard Francis Cleaveland, the testator's brother, died in 1849, and his wife in 1857. The bill was filed by the surviving trustee of the will to have the true construction declared of the gift to the children of Robert Francis and Eliza Cleaveland. The Master of the Rolls held, that the next of kin of the nephews and nieces who died in the lifetime of the testator, or of the surviving tenant for life, were entitled to participate in the legacy. The case is reported below in the 26th Volume of Mr. Beavan's Reports (pages 26, 166). Mr. St. Barbe appealed. Mr. Selwyn and Mr. Hobhouse, for the Appellant. The words "legal personal representatives" were meant to give absolute interests to the nephews and nieces, notwithstanding their death in the lifetime of the testator or tenant for life. The gift has two alternatives. If all the nephews and nieces were living at the death of the surviving tenant for life, all .were intended to take. If some were living and some dead, the gift was meant for those living, and the legal personal representatives of those who were dead. [479] They referred to and commented upon Tidwell v. Arid (3 Madd. 403); Re Parleys Trust (4 K. & J. 188); Btme, v. Cook (M'Cl. 168); Gorbyn v. French (4 Ves. * DE G. * J. 80. KING V. CLEAVELAND 187 418); OmUhurat v. Garter (15 Beav. 421); Christaphersm v. Naylar (1 Mer. 320); Tytherleigh v. Harbtm (6 Sim. 329); Jarvis v. PomJ (9 Sim. 549); Hinchliffe v. JFest wood (2 De G. and Sm. 216); Be Crawford's Trusts (2 Drew. 230); Dixon v. Divan (24 Beav. 129); Doody v. #%ms (2 K. & J. 729). Mr. Amphlett and Mr. C. Hall, for the executor of the father of Mrs. St. Barbe, who was her next of kin. The words " share and share alike " shew that legal personal representatives are not meant in their ordinary sense, and that the next of kin are entitled. They referred to and commented upon Walker v. Marquis of Gamilm (16 Sim. 329); Cotton v. Cotton (2 Beav. 67) ; Stwke v. Palmer (7 Hare, 225); RoUnsonv. Smith (6 Sim. 47). Mr. Seed, Mr. Lloyd, Mr. Martelli, Mr. Osborne, Mr. Wickens and Mr. Harrison appeared for other parties. Judgment reserved. the lord chancellor. Although the Appellant George Foster St. Barbe appeals only against that part of the decree of the Master of the Rolls by which he was excluded from the one-seventh of the fund in controversy, which by the decree [480} would go to the next of kin of his deceased wife Henrietta Maria, one of the nieces of the testator, I think that we are bound to say whether we agree with His Honour in that part of his decree by which he directs that the fund shall be divided into sevenths, to go among the four nephews and nieces who survived the two tenants for life and those who answer the designation of the " legal personal representatives " of the three others, two of whom died in the lifetime of the testator, and one died after his death, and before the death of the surviving tenant for life. During the argument it was suggested that the four who survived the two tenants for life are entitled to the whole of the fund. This depends upon the construction to be given to these words, " And after the decease of my said brother and his said wife, then in trust to pay and apply the said sum of 4000 stock equally amongst my nephews and nieces, children of my said brother Richard Francis Cleavelaud and his wife then living, or their legal personal representatives, share and share alike." Stopping at the words "then living," unquestionably the claim in favour of the four surviving nephews and nieces would prevail; and so it would be if the words " or their legal representatives " could be considered words of limitation unnecessarily added. But, looking at the whole of the will, I think it quite clear that the testator designates the two classes of legatees who should both take directly, and neither of them by representation; first, the nephews and nieces living at the death of the surviving tenant for life; and, secondly, the persons who should answer the description the "legal personal representatives" of the nephews and nieces dying before the surviving tenant for life. There certainly is no antecedent to which the word "their" before "personal representatives," can be grammatically referred, but [481] the meaning of the testator seems to have been that the fund should 1)6 divided among the nephews and nieces who should be alive at the death of the surviving tenant for life and the representatives of those who should have died before that time. To construe the words " their legal personal representatives " as words of limitation is to deprive them of all power whatever. The testator could hardly have intended that if a nephew or niece should die in the lifetime of one of the tenants for life, leaving children, those children should take nothing under the will; and when it is considered that these legal personal representatives were to take " share and share alike," not in any fiduciary capacity, but beneficially, it seems impossible to suppose that the words " or their legal personal representatives," can be referred to the " executors or administrators " of the nephews and nieces living at the death of the tenant for life. The construction of the will, by which the testator is supposed to have created two classes of legatees, seems to me to be, according to the intention of the testator, to be gathered from the language he has employed, and is, I think, fully...
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