King v Denison
| Jurisdiction | England & Wales |
| Judgment Date | 09 February 1813 |
| Date | 09 February 1813 |
| Court | High Court of Chancery |
English Reports Citation: 35 E.R. 102
HIGH COURT OF CHANCERY
See Cooke v. The Stationers' Company, 1831, 3 My. & K. 266; Cook v. Hutchinson, 1836, 1 Keen, 50; Wood v. Cox, 1837, 2 My. & Cr. 694; Watson v. Saul, 1859, 1 Giff. 197; Clarke v. Hilton, 1866, L. R. 2 Eq. 814; Merchant Taylors' Company v. Attorney-General,1871, L. R. 6 Ch. 515. Explained, Croome v. Croome, 1888, 59 L. T. 582. See In re West, [1900] 1 Ch. 87.
[260] king e. dexison. Feb. 5, 8, 9, 1813. [See Cooke v. The Stationers' Company, 1831, 3 My. & K. 266 ; Cook v. Hutchinson, 1836, 1 Keen, 50 ; Wood v. Cox, 1837, 2 My. & Or. 694 ; Watson v. Saul, 1859, 1 Griff. 197; Clarke v. Hilton, 1866, L. R. 2 Eq. 814; Merchant Taylors' Company v. Attorney-General ,1871, L. R. 6 Ch. 515. Explained, Croome v. Croome, 1888, 59 L. T. 582. See In re West, [1900] 1 Ch. 87.] Construction of a Devise in Fee subject to and chargeable with Annuities, upon the Intention, collected from the whole Will, a beneficial Devise, and not a Trust resulting to the Heir as to the Surplus beyond the Annuities. Frances Isaacson by her Will, dated the 29th of March 1750, beginning with a Direction, that all her just Debts shall be paid or satisfied, made the following Disposition : " I do hereby order and dispose of my Estates in the following Manner : " I give, devise, and bequeath all that my Manor or reputed Manor of Fenton, &c., " and all other my real Estate whatsoever and wheresoever unto my Cousin Mary " Altham, Wife of Roger Altham of Doctors Commons, London, Esq. and to my " Cousin. Arabella Isaacson, and their Heirs and Assigns for ever, subject nevertheless " to and chargeable with the Payment of the following Annuities hereinafter men-" tioned ; that is to say, to my Brother William Isaacson the Annuity or yearly " Sum of 100 given and devised to him by my Father's Will and also a farther " Annuity or yearly Sum of 50 which I give him during his Life : to my Sister " Sarah Isaacson the Amraity or yearly Sum of 60 given and devised to her by my " said Father's Will ; also a farther Annuity or yearly Sum of 90, which I give " her during her Life, for her sole separate and personal Use, exclusive of her lius-" band, who is to have no Power to receive, &c., the same, &c. And I do order that " the Receipts of my said Sister alone whether covert or sole, &c., shall be good and " sufficient Discharges for the same " ; and after her Decease the Testatrix gave the same Annuity of 150 to her Sister's Son Henry Creagh Isaacson for Life, and after his Decease to any other Child or Children of her Sister Sarah Isaacson living at the Death of the Testatrix and to the Survivor of such Children during their respective natural Lives, and if but one, then to such only Child [261] for his or her Life. The Testatrix gave to her Aunt Margaret Isaacson an Annuity of 100 for Life, " and after her Decease I give to my Brother Anthony Isaacson on his Life an Annuity " of 150 " which after his Decease was to be divided amongst his Children for their Lives ; and after giving another Annuity of 20 to her Cousin Catharine Isaacson she thus proceeds : " All which Annuities I will and direct shall be paid quarterly, &c., and I do hereby " charge my real Estate with the Payment thereof." The Testatrix gave her personal Estate (with a slight Exception) to Roger Altham, Edmund Byron, and Giles Alcock, their Executors and Administrators, " subject to " and chargeable with the Payment of my just Debts and the Legacies hereinafter " mentioned " ; among which were Legacies to her Brothers Anthony and William Isaacson : to her Cousin Mary Altham a Legacy of 100 : to her Cousin Arabella Isaacson 300, and to Roger Altham, Edmund Byron, and Giles Alcock 200 a-picce. IV. &B. 262. KING V. DENISON 103 The Testatrix then declared, that the Annuity of 150 given to her Brother William Isaacson for his Life, should after his Deathfgo to his Children, and after their Deaths One Moiety of it to her Sister Sarah Isaacson, and after her Death to her Children, Hying at the Decease of the Testatrix. The Will then proceeded thus : " And as to tlhe other Moiety of the same Annuity, together with the surplus Profits " of my said real Estate to be computed from the Time of my Decease, I give to my " Brother Anthony Isaacson for his Life and after his Death to such of his Children " as shall be living at the Time of my Death and to the Survivors and Survivor of " them during their respective natural Lives ; and my farther Will is, that after " the several Deceases of my [262] said Sister and her Children the said annual " Sum of 150 fend the 75 as aforesaid given to her, and them, shall go to my said " Brother Anthony for Life, if he shall be then living, and if he be dead, then to such " of his Children and the Survivor and Survivors of them that shall be living at my " Death ; and in. ease of his and their Deaths first happening then my Will is that the " whole Eents and Profits of my said real Estate shall go and be paid to my said Sister " Sarah Isaacson during her Life, if she shall be then living, and if she shall be dead, " then to be paid to such of the surviving Child or Children of my said Brother " and Sister that shall be living at the Time of my Decease for his, her, or their natural " Life or Lives only." The Testatrix appointed Roger Altham, Edmund Byron, and Giles Alcock, Executors. By a Codicil, dated the 12th of April 1752, the Testatrix gave a few Legacies ; declaring, that she did thereby charge and subject her real and personal Estate with the Payment thereof ; adding, " but it is my Desire that my personal Estate shall " bo first applied in ease and Exoneration thereof and of the other pecuniary Legacies " in my Will mentioned wherewith I have charged rny personal Estate with the " Payment in Manner therein expressed." The Testatrix died in 1752, leaving Anthony Isaacson, her eldest Brother, and Heir at Law, surviving. All the Persons, to whom Annuities were given, being dead, the Heirs at Law of the Testatrix claimed her real Estates on the Ground, that they were devised to Mary Altham and Arabella Isaacson for particular Trusts only ; which being satisfied, the Heir was entitled by way of resulting Trust.* For the Purpose of trying this Question an Ejectment was brought by the Devisees against the Heirs, and a Verdict was given for the Devisees, sub-[263]-ject to the Opinion of the Court of King's Bench. The Case was argued on the 13th of November 1812; when the unanimous Judgment of the Court was, that the Devisees were entitled to recover, and the Verdict ought to stand. The Bill was then filed by the Heirs at Law ; praying a Declaration, that they were entitled to! the whole beneficial Interest in the Estate devised to the Defendant Arabella Denison, formerly Isaacson, arid Mary Altham ; a Conveyance of the legal Estate, and an Injunction. The Defendant Arabella Denison by her Answer stated, that she was at the Time of the Decease of the Testatrix an Infant of the Age of Seventeen Years. The other Defendants demurred to the Bill for Want of Equity. Upon this Demurrer and a Motion for an Injunction, the Cause came on. Sir Samuel liomilly, Mr. Hargrave, and Mr. Benyon, for the Plaintiffs, the Heirs at Law. In Order to constitute a Devisee a Trustee, it is not indispensably necessary, that the Words " in Trust" should be employed : if the Intention appears, that the Devisee shall be^a Trustee, that is sufficient according to the Doctrine of Lord Hard-wicke in the important Case of Hill v. The Bishop of London (1 Atk. 618); and that Intention is manifest upon the whole Frame of this Will. The Terms " subject " to and chargeable with " arc synonymous with " in Trust."...
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