Knight v Knight
| Jurisdiction | England & Wales |
| Judgment Date | 07 August 1840 |
| Date | 07 August 1840 |
| Court | High Court of Chancery |
English Reports Citation: 49 E.R. 58
ROLLS COURT
S. C. 9 L. J. Ch. (N. S.), 354; 4 Jur. 839; and in House of Lords (sub nom. Knight v. Boughton), 11 Cl. & F. 513; 8 E. R. 1195; 8 Jur. 923. See Holmesdale v. West, 1866, L. R. 3 Eq. 485; Shelley v. Shelley, 1868, L. R. 6 Eq. 544; Ellis v. Ellis, 1875, 44 L. J. Ch. 226; In re Oldfield [1904], 1 Ch. 553.
[148] knight v. knight. Dee. 17, 18, 19, 20, 21, 1839 ; August 1, 1840. [S. C. 9 L. J. Ch. (N. S.), 354 ; 4 Jur. 839 ; and in House of Lords (sub nom. Knight v. Bmtffhton), 11 Cl. & F. 513 ; 8 E. R. 1195; 8 Jur. 923. See Holmesdale v. West, 1866, L. R. 3 Eq. 485; Shelley v. Shelley, 1868, L. R. 6 Eq. 544; Ellis v. Ellis, 1875, 44 L. J. Ch. 226; In re OUJield [1904], 1 Ch. 553.] Principles of construction, in cases of precatory words in wills, and the requisites to enable the Court to construe them as imperative. Where property is given absolutely to one, who is by the donor recommended, intreated, or wished, to dispose of it in favour of another, the words create a trust, if they are such as ought to be construed imperative, and the subject and objects are certain : thus, if a testator gives £1000 to A. B., desiring, wishing, recommending, or hoping that A. B. will, at his death, give the same sum or any certain part to C. D., a trust is created in favour of C. D. Bequest to A. B. of a residue, with a recommendation to him after his death to give it to his own relations, or such of his own relations as he shall think most deserving, or as he shall choose, has been considered sufficiently certain both as to subject . and object, as to create a trust. Where it is to be collected that the donor did not intend the words to be imperative, or if the first taker was to have a discretionary power of withdrawing any part of the tubject from the object of the wish, or if the objects, or the interests they are to take, are not ascertained with sufficient certainty, no trust is created. A testator, R. P. K., was entitled to real estates in tail male, with remainder to his cousins in tail, with remainder to himself in fee as right heir of the settlor, as to part under a settlement, made by his grandfather, and as to other part under the will of his same grandfather. R. P. K. suffered a recovery and acquired the fee-simple. He afterwards made his will, by which he devised all his estates, real and personal, to his brother T. A. K., if living at his decease, and if not to T. A. K.'s son, T. A. K. the younger, and in case he should die before the testator, to his eldest son or next descendant in the direct male line; and in case he should leave no such descendant, to the next male issue of his said brother, and his next descendant in the direct male line; but in case that no such issue or descendant of his said brother or nephew should be living at the time of his, the testator's decease, to the next descendant in the direct male line of his said grandfather, according to the purport of his will under which the testator inherited those estates which his industry had acquired, &c. He constituted the person who should inherit his said estates his sole executor and trustee, to carry the same and everything therein duly into execution, " confiding in the approved honour and integrity of his family to take no advantage of any technical inaccuracies, but to admit all the comparatively small reservations which he made out of so large a property according to the plain and obvious meaning of his words:" he then gave some small legacies, and proceeded thus : " / trust to the liberality of my successors to reward KNIGHTò'V. feNIGHT 59 any 4thers *of my old servants and tenants according to their deserts, and to their justice in continuing the estates in the male succession, according to the will of the founder of the family, my above-named grandfather." T. A. K. survived the testator. Held, that the words were not sufficiently imperative, and that the subject intended to be affected, and the interests to be enjoyed by the objects, were not sufficiently-defined to create a trust in favour of the male line, and that T. A. K. took the property unfettered by any trust in favour of such male line. Richard Knight being entitled to the manors of Leintwardine and Downton, executed an indenture of settlement,1 dated the 26th of April 1729, and made between himself and Elizabeth his wife of the [149] first part; his four sons, Eichard Knight the younger, Thomas Knight, Edward Knight, and Ralph Knight, of the second pa?t; and William Bradley and Joseph Cox of the third part: and it was tlereby witnessed that the said Richard Knight, for the love and affection which he bore to his said wife and sons, and for settling an annuity by way of jointure upon his wife in lieu of dower, and "for settling and assuring the hereditaments thereinafter mentwntd, to continue in the name and blood of the said Eichard Knight the elder, so long as it should please Almighty God," &o.; and to the end that the hereditaments might be settled and established to and for the uses, intents, and purposes, and upon ana under the powers, provisoes, limitations, and agreements after expressed, be, the said R. Knight, conveyed the manors of Leintwardine and Downton, and the hereditaments therein described, to trustees, to the use of himself for life; and after his decease, to the use, intent, and purpose, that his wife might receive the annuity therein mentioned, with powers of distress and entry, and subject to the annuity, and the remedies for the recovery thereof, to the use of Richard Knight the younger and bis assigns for life; with remainder to the use of the trustees, to preserve contingent remainders; with remainder to the use of the first, second, third, fourth, fifth, sixth, and all and every other sons of the body of the said Richard Knight the younger, on the body of his then wife to be begotten, and the heirs male of such sons; with remainder to the use of the sons of the body of the said Richard Knight the younger, begotten on the body of any other wife in tail male; with remainder to the use of his son Thomas for life ; with remainder to the sons of Thomas successively in tail male; with remainder to the use of his son Edward and his assigns for his life; with remainder to the sons of Edward successively in tail male; with [150] remainder to the use of his son Ralph and his assigns for life ; with remainder to the sons of Ralph successively in tail male; with remainder to the use of the right heirs of Richard Knight, the settlor himself; the deed contained powers of jointuring and leasing. Richard Knight, by his will dated the 27th day of October 1744, devised his real estates to trustees, to the uses, trusts, intents, and with and upon and under the same powers, provisoes, limitations, and agreements as he had theretofore settled, conveyed, and assured the manor of Leintwardine; and he directed the residue of his personal estate to be laid out in the purchase of lands, to be settled to the same uses. The testator died on the 6th of February 1745, leaving his four sons surviving him. Richard, the eldest son, died in 1763, without leaving any issue male. Thomas, the second son, who died in 1764, was the father of the testator Richard Payne Knight and of Thomas Andrew Knight. Edward, the third son, who died in 1780, was the grandfather of the Plaintiff John Knight, and of the Defendant Thomas Knight. Ralph, the fourth son, died in 1754, leaving two sons, both of whom died long ago without issue male. (See the pedigree in the next page.) The eldest son, Richard Knight, enjoyed the estates until his death in 1765, and was succeeded by his nephew Richard Payne Knight, who held the estates until his death in 1824. Richard Payne Knight being tenant in tail of the estates, suffered common recoveries thereof, and having thereby barred the entail, became the owner thereof in fee. [181] On the 3d of June 1814 he made his will. At that time, his nearest relation, and the next male descendant from Richard Knight his grandfather, was his brother Thomas Andrew Knight, who had an only son, Thomas Andrew Knight, the .younger; after his brother and nephew, the next male descendants from Richard 60 KNIGHT V. KNIGHT 1BEAV.U2. Knight the grandfather, were the Plaintiff John Knight and his sons, and the Defendant Thomas Knight and his song.(l) The will was expressed as follows:-" I give and bequeath all my estates, real and personal (except such parts as are hereinafter excepted), to my brother Thomas Andrew Knight, should he be living at the time of my decease; and if not, to his son Thomas Andrew Knight the younger; and in case that he should die before me, to his eldest son or next descendant in the direct male line; and in case that he should leave no such descend-[152]-ant in the direct male line, to the next male issue of my said brother, and his next descendant in the direct male line ; but in case that no such issue or descendant of my said brother or nephew shall be living at the time of my decease, to the next descendant in the direct male line of my late grandfather, Richard Knight of Downton, according to the purport of his will, under which I have inherited those estates which his industry and abilities had acquired, and of which he had therefore the. best right to dispose; subject, nevertheless, and liable in every case to the following reservations and deductions out of the rents and profits thereof, which I give and bequeath to the purposes and in the manner following, viz.: in the first place, I give and bequeath the sum of £300, to be distributed, within one month after my decease, among the poor of the several parishes of Downton, Harrington, Aston, Elton, Leinthall, Starkes, and the northern division of Leintwardine, all in the county of Hereford, in such portions to each individual pauper or poor family as my executor, or such person as he shall appoint for that purpose, shall think...
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