Lassence v Tierney

JurisdictionEngland & Wales
Judgment Date11 December 1849
Date11 December 1849
CourtHigh Court of Chancery

English Reports Citation: 41 E.R. 1379

HIGH COURT OF CHANCERY

Lassence
and
Tierney

S. C. 2 H. & Tw. 115; 14 Jur. 182. See Caton, v. Caton, 1865, L. R. 1 Ch. 144; Churchill v. Churchill, 1876, L. R. 5 Eq. 48. Confirmed, Kellett v. Kellett, 1868, L. R. 3 H. L. 160. See Savage v. Tyers, 1872, L. R. 7 Ch. 362; M'Donald v. M'Donald, 1875, L. R. 2 Sc. App. 488. Followed, In re Richards, 1883, 50 L. T. 22. See Maddison v. Alderson, 1883, 8 App. Cas. 474. Applied, In re Houghton 1884, 53 L. J. Ch. 1018. See M'Manus v. Cooke, 1887, 35 Ch. D. 691; Cooke v. Cooke, 1887, 38 Ch. D. 208; In re Crawshay, 1890, 43 Ch. D. 622. Applied, In re Boyd, 1890, 63 L. T. 92. Distinguished, In re Hancock [1901], 1 Ch. 482.

[551] lassence v. tieeney. jfm. 28, Dec. 6, 7, 10, n, 1849. j[S. C. 2 H. & Tw. 115; 14 Jur. 182. See Calm, v. Caton, 1865, L. E. 1 Ch. 144; Churchill v. Churchill, 1876, L. E. 5 Eq. 48. Confirmed, Kellett v. Kellett, 1868, L. E. 3 H. L. 160. See Manage v. Tyers, 1872, L. E. 7 Ch. 362; M'Donalil v., M'Donald, 1875, L. E. 2 Sc. App. 488. Followed, In re Richards, 1883, 50 L. T.^'C .22. See Manldisan v. AUe/rson, 1883, 8 App. Cas. 474. Applied, In re Houghton^ii-.-, 1884, 53 L. J. Ch. 1018. See -M'Manus v. Cooke, 1887, 35 Ch. D. 691 ; Coake v/ Caoke, 1887, 38 Ch. D. 208; In re Grawshay, 1890, 43 Ch. D. 622. Applied, In r(? Boyd, 1890, 63 L. T. 92. Distinguished, In re Hancock [1901], 1 Ch. 482.] ^.j u ' [f a testator leaves a legacy absolutely as regards his estate, but restricts the mode ot the legatee's enjoyment of it, to secure certain objects for the benefit of the legatee1; upon failure of such objects, the absolute gift prevails : but, if there be no sucnfjf ' absolute gift as between the legatee and the estate, and particular modes of enjoy-ment are prescribed, and those modes of enjoyment fail, the legacy forms part of the testator's estate, as not having in such event been given away from it. In the case of a will containing such a disposition, the intention of the testator is to be collected from the whole will, and not from words which, standing alone, would constitute an absolute gift. When the terms of a gift are ambiguous, leaving it doubtful whether or not an absolute interest is given, the subsequent disposition of the subject-matter of the gift, in every possible event which can arise, forms an important consideration in putting a construction on those ambiguous terms ; such a disposition being apparently inconsistent with the intention of giving an absolute interest in the first instance. By a parol ante-nuptial agreement, it was agreed that the husband should take a certain portion of the wife's property, and that the residue should be settled for her separate use. This agreement was carried out so far as related to the husband ; bat no settlement was made on the wife. The wife subsequently to her marriage fifed her bill ;by her next friend, stating these facts, and praying that her interests in certain property, consisting of real estate coming to her, might be declared accordingly. The husband, by his answer, admitted the statements in the bill. A deed was then prepared, purporting to be a settlement on the wife, in pursuance of theLagreement, and giving her a power to dispose of her property by will. This deedy though signed by the wife, was not acknowledged by her. She made a will, disposing o jier property in favour of her husband and other parties, and died. Thte husband; then filed a supplemental bill, praying, as against the heir of the wife, that the parol agreement might be carried into effect, that the want of an acknowledgment might, if necessary, be supplied, and that the will of the wife might be established as a valid execution of the power given to her by the deed. Held, first, that in a suit thus framed there was no case established in point of proof as against the heir; secondly, that the contract so entered into before marriage, there being nothing but;marriage following, could not be carried into effect under the Statute of Frauds ; and, thirdly, that the Court would not supply the want of the acknowledgment, as tending to destroy the protection which the law throws around married women. This was an appeal from a judgment pronounced by the Vice-Chancellor Wigrara, on the hearing on further directions of this suit, on the 8th June 1849. The points to which, as will be seen by the judgment of the Lord Chancellor, the discussion was substantially confined, were the following: - viz., First, the [5B2] interest which Catherine Lassence, the daughter of the testator Matthew Kantian, 1380 LASSENCE V. TIERNEY 1 MAO. & O. M3. took in the residuary real and personal eatate of her father under the terms of his will. Secondly, whether a sum of 420, 15s. 2d. Bank 3 per cent, annuities, standing; to the credit of the cause to an account entitled "The Account of the Produce of the Testator's Real Eatate," and which arose from a sale, after the death of the testator and twfore the institution of the suit, of part of the testator's real estate to the Blackwall Railway Company, was to be considered as real or personal estate. Thirdly, whether J. G-. Lassence, the husband of Catherine Lassence, and two of the Defendants, were entitled to the benefit of a devise of real estate made to them by the will of Catherine^ Lassence, this will purporting to be executed in pursuance of an alleged ante-nuptial parol agreement, that her property should be at her own disposal, and also in pursuance of a power given to her by an indenture, dated the 21st October 1843,, signed by Catherine Lassence subsequently to her marriage, but not acknowledged by her, as required by the Act for Abolishing Fines and Recoveries. The following statement of the facts of the case will shew the manner in which the several points just stated arose. Matthew Kannan, who died in January 1823, by his will, dated the 14th June^ 1821, after directing the payment of all his just debts, funeral expenses, and the charges of proving his will, gave his residuary estate and effects to his wife and two other persons (whom he afterwards named executrix and executors), as trustees for certaia purposes; and then, after directing the payment of several pecuniary and specific legacies, gave, devised and bequeathed as follows :-" I [553] give and bequeath to my only daughter Catherine Read, wife of Joseph Read, of Tottenham Court Road,. in the county of Middlesex, stockbroker, the residue and remainder of my property,, wheresoever and whatsoever, to receive the interest thereof during her lifetime, both in funds, houses, and the interest of money arising from any other source, &c., without being subject to any control or restraint from her present or any future husband, for her sole use and purpose, her receipts alone to be taken as legal for the money she receives. It is also my will that she shall not have any power to dispose of any part of my property during her life, unless for the purpose of transferring it from one stock to another, or of disposing or selling any houses, or monies in the funds, for the sole purpose of investing it in some other concern or purchase^ which may be deemed more eligible than where it is already placed out, but this must be done with the entire consent of the executors and executrix. It is also my will that the whole property shall be divided between her children after her decease, share and share alike, in the following manner-viz., that the males shall have one-half of the property bequeathed to them when they arrive at the age of twenty-three years, and to receive the interest of the other or remaining half of their shares during life, and to equally divide it amongst their children after their decease, or to the next relation, or to their husbands ao long as they live, if they should have no issue. I also wish the property or share coming to the females to remain invested where it was placed, if secure, or, if not deemed so, to be placed in any other way the executors may deem proper, without incurring risk of its being lost or misplaced, and to receive the interest only during their Kves, without being subject to any restraint or control from their husbands. And if it can be proved that they shall [554] even attempt to dispose or sell their life interest in it, it is my will that the property do go over to their brothers, and that they shall be entirely deprived of it; after their decease, their part of the property to be divided, share and share alike, between their children, and if they have no issue, among their husbands during their lifetime, then to go to the nearest relation on their mother's side. It shall and may be lawful to and for the said trustees, or the survivor or survivors of them, or the executors or administrators of such survivor, in case of the death of any of them, or his or their desire to be discharged from the trusts reposed in them before the accomplishment of the said several trusts, to nominate one trustee or trustees for the purposes aforesaid to keep up the number of the said trustees, with like power to them, and such new trustee or trustees, in ease of their death, or wish to be discharged from the said trusts, to keep up the same number of trustees, and each trustee to be only accountable for his own act and deed." Catherine Read had four children, three of whom died in the lifetime of her husband Joseph Read, infants and unmarried, and the fourth of whom died shortly after him, also an infant and unmarried. Joseph Read died in April 1833, having, by 3 MAO. ft.O. BM. LA8SENCE V. TIERNEY 1381 his will, given all his property to his wife for her own use and benefit, and appointed her his sole executrix. On the 12th Augast 1834 Catherine Read became the wife of J. G. Lassence. There were no children of this marriage; and previously to filing ~the bill next hereinafter mentioned, Catherine Lassence took out administration to her four children by Joseph Read, all then deceased. On...

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