Loring v Thomas
| Jurisdiction | England & Wales |
| Judgment Date | 25 July 1861 |
| Date | 25 July 1861 |
| Court | High Court of Chancery |
English Reports Citation: 62 E.R. 469
HIGH COURT OF CHANCERY
S. C. 30 L. J Ch. 789; 7 Jur. (N. S.) 1116; 5 L. T. 269; 9 W. R. 919. See In re Potter's Trust, 1869, L. R. 8 Eq. 58; In re Hotchiss's Trust, 1869, L. R. 8 Eq. 643; In re Woolrich, 1879, 11 Ch. D. 667; In re Lucas's Will, 1880-81, 17 Ch. D. 793; Gibbons v. Gibbons, 1881, 6 App. Cas. 479; In re Webster's Estate, 1883, 23 Ch. D. 740; Miles v. Tudway, 1883, 49 L. T. 664; In re Chinery, 1888, 39 Ch. D. 617; In re Brown, 1889, 58 L. J. Ch. 422; In re Musther, 1890, 43 Ch. D. 572; In re Gorringe [1906], 1 Ch. 319.
Will. Construction Substitution. Alternative Gift.
1DB,&SM.4&. ' liORING V. THOMAS 469" [497] loring v. thomas. June 25, 26, NKly 2'5*l861. {S. C. 30 L. J: Ch. 789 ;. 7 Jur. (N. S.) 1116 ; 5 L. T. 269 ; 9 W. E. 919. See / rr P 'otters Trust, 1869, L. E. 8 Eq. 58; In re Hotchiss's Trust, 1869, L. E. 8 Eq. 643 ; In re Wool-rich, 1879, 11 Ch..D. 667 ; / re Lucas's Will, 1880-81, 17 Ch. D. 793; Gibbons v. Gibbons, 1881, 6 App. Cas. 479 :; In re Webster's Estate, 1883, 23 Ch. D. 740; Miles v. IWway, 1883, 49 L, T. 664; /n. re Chinery, 1888, 39 Ch. D. 617 ; In re Brown, 1889, 58 L. J. Ch. 422; J re Musther, 1890, 43 Ch. D. 572; In re-Gorringe [1906], 1 Ch. 319.] Will. Construction. Substitution. Alternative Gift. Gift of aliquot parts of a fund to the children of A., the children of B.^ the children of C. and the grandchildren of D. Provided that if any child or children of A., or B. of C., or any of the grandchildren of D., shall die in my lifetime leaving a child or children living at my death and attaining twenty-one, the child or children of each such child or grandchild so dying in my lifetime shall represent and stand in the place of his, her or their deceased parent or respective parents, and be entitled to the same share or shares which his, her or their deceased parent would have been entitled to if living at my decease. Held, 1. The word "children" could hot be read grandchildren, so as to let in as original donee the child of a deceased child of A., who never had a child living at the date of the will. 2. The words "shall die" do not import future dying, but are equivalent to "shall be dead," or " shall have died." 3. A testator may so express himself as to cause a child of a deceased child to represent and be substituted for that deceased child ; though he never intended a share for the deceased child : and held that, in this case, the proviso was large- enough to shew an intention, that a child of a child deceased at the date of the will, and for whom therefore no share was intended, should represent or be substituted for that deceased child ; and take the share which, if living at the date of the testator's death, the deceased child would have taken. Christopherson v. Nayler, and other cases of that class, distinguished ; and Waugh v.. Waugh disapproved and overruled. The material facts in this case were as follows : - Mary Williams duly made and executed her last will and testament in writing,. bearing date the 17th of November 1838, and after certain directions and devises, proceeded as follows : - " I devise, appoint and bequeath unto my friends, the Eeverend Henry Cotton, Doctor in Divinity, Archdeacon of Cashel in Ireland, the Eeverend William Lewis Davies, Principal of Elizabeth College in Guernsey, Anna, the wife of" Sir John Wentworth Loring, of Lee House in the county of Southampton, and the Eeverend Henry Nele Loring of Eumsey in the county of Southampton, clerk, all that my freehold messuage or tenement in which I now reside, with the outbuildings,,, garden and appurtenances thereunto belonging, situate and being 498] in the parish of Saint Peter in the East, in the City of Oxford aforesaid, and all other my real estate wheresoever situate, to hold the same unto and to the use of the said Henry Cotton, William Lewis Davis, Anna Loring, and Henry Nelq Loring, their heirs and assigns, upon trust to permit the Eeverend V aughan Thomas, Vicar of Yarnton, in the county of Oxford, and my sister Charlotte his wife, and the survivor of them, his or her assigns, to occupy and enjoy the same, or to receive the rents and profits thereof for and during the term of their natural lives, and the life of the longest liver of them ; and from and after the decease of the survivor of them the said Vaughan Thomas and Charlotte his wife, upon trust, with all convenient speed, absolutely to sell and dispose of the said messuage or tenement, hereditaments and premises, either together or in parcels, and either by public auction or private contract, and to convey and assure the same unto the purchaser or respective purchasers thereof, or as he, she or they shall appoint. And I direct that the said Henry Cotton, William Lewi& Davies, Anna Loring and Henry Nele Loring, and the survivors and survivor of them,,, -470 LORING V. THOMAS 1DK.&SM.499. Tiis or her executors, administrators and assigns, shall stand possessed of the monies -to arise and be produced by the sale of such hereditaments and premises upon the trusts following, that is to say, as to one-fourth part thereof upon trust to pay and divide the same equally between all and every the children of my deceased aunt Dorothy Davies, late of the town of Southampton aforesaid; as to one othe* fourth part thereof upon trust to pay and divide the same equally between all and every the children of my deceased aunt Elizabeth Besson, late of Greenwich, in the county of Kent, by her first husband, Captain Nutt, of the Royal Navy; as to one other fourth part thereof, upon trust to pay and diride [499] the same equally between all and every the children of'my deceased uncle Francis Cobke, late of the City of London, esquire; and as to the remaining fourth part thereof, upon trust to pay and divide the same equally between all and every the grandchildren of my deceased aunt Mary Dixon, late of Greenwich aforesaid. Provided always, and I hereby declare, that in - ;ase any child or children of the said Dorothy Davies, Elizabeth Besson or Francis Cooke, or the grandchild or grandchildren of the said Mary Dixon, shall die in my lifetime, leaving any child or children who shall be living at my decease, and who shall live to attain the age of twenty-one years, then and in such case it is my will that the child or children of each such child or grandchild so dying in my lifetime shall represent and -stand in the place of his, her or their deceased parent or respective parents, and shall be entitled to the same share or shares in the monies to arise by sale of the said freehold hereditaments which his, her or their deceased parent or parents would 'have been entitled to if living at the time of my decease, and such share to be divided between or among such children, if more than one, in equal proportions, and if there shall be only one child then to go" to such only child. Provided also, and my will is, that until such sale or .sales the rents and profits of the said messuage or tenement, hereditaments and premises, or of such part thereof as shall from time to time remain unsold, shall be paid unto the person or persons who under the trusts hereinbefore contained would be entitled to the monies arising therefrom." And the testatrix appointed her sister, Charlotte Thomas, sole executrix of her will. The testatrix departed this life on the 22d of October 1842, without having altered or revoked her [500] will, and possessed of considerable real and personal estate; and her will was, on the 17th of November 1842, proved by the said Charlotte Thomas. Charlotte Thomas was the heiress at law and sole next of kin of the said testatrix. By deed-poll under the hand and seal of Henry Cotton, dated the 14th of February 1844, Henry Cotton duly renounced and disclaimed all and every the estates, devises and bequests, trusts, powers, authorities and discretions by the will - of Mary Williams respectively devised and bequeathed to and expressed to be reposed .and vested in him jointly with the said William Lewis Davies, Anna Loring and Henry Nele Loring, or otherwise. The children of Dorothy Davies and Francis Cooke, and the grandchildren of Mary Dixon, in the will of Mary Williams respectively mentioned, were very numerous, and they were all born prior to the date of the will. Some of the said children and grandchildren were dead at the date of the will, leaving children who survived the testatrix, and attained the age of twenty-one years. The last-mentioned children were also very numerous, and they, their representatives and assigns, - claimed to be interested in three-fourth parts or shares of and in the monies to arise from the sale of the real estate by the will directed to be sold, and of and in the residuary personal estate of the testatrix; and they, or some of them, had disposed of or otherwise dealt with the interests which they respectively claimed therein. Such of the children of Dorothy Davies and Francis [501] Cooke and of the grandchildren of Mary Dixon as were alive at the date of the will survived the testatrix; and they, their representatives and assigns, claimed to be entitled to three-fourth parts of the said monies and residuary personal estate, to the exclusion of the children of such of the children of Dorothy Davies and Francis Cooke, and of the grandchildren of Mary Dixon as were dead at the date of the will; and they, or some of them, had disposed of, or otherwise dealt with, the interests which they respectively claimed in the said monies and residuary personal estate...
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