M' Culloch v Gregory
| Jurisdiction | England & Wales |
| Judgment Date | 13 November 1856 |
| Date | 13 November 1856 |
| Court | High Court of Chancery |
English Reports Citation: 69 E.R. 1001
HIGH COURT OF CHANCERY
S. C. 2 Jur. (N. S.) 1134.
Vendor and Purchaser. Title. Proving Will.
sk. &j. u. m'culloch v. gregory 1001 particular family, but only so much of that income as the trustees may think necessary. The result, therefore, of the entire will is this : that the whole of the income is not disposed of until the death of the surviving daughter. No child of any of the daughters could insist on receiving anything, whether principal or interest "unapplied as aforesaid," until that event. Now, in all the cases which were cited in favour of a division per stirpes, with the exception of Brett v. Hortm, and especially in the case of Hunt v. Dorset, the will contained expressions which pointed, in the opinion of the Court, to a division per stirpes. Here I find no such expressions. Then, with regard to Brett v. Horton, the reasoning which was founded on that case does not apply. If, upon the death of each of his daughters, the testator had directed the whole of the income of her share to be applied, until the period of distribution, for the benefit of her children, then the reasoning founded upon Brett v. Hort.on would apply. But, here, he has not given the whole. He has given the whole, or so much, of the income as should be thought necessary by the trustees - evidently intending that the trustees should exercise a discretion as to the amount to be applied for the maintenance, education and advancement of the children of each family - and it is not until after the death of his surviving daughter that he disposes of the unapplied portion of that income. This being so, and the gift over of the capital and of the interest " unapplied as aforesaid " being in terms which, taken [11] alone, would clearly have required a division per capita, I cannot hold that the previous direction to the trustees to apply per stirpes the whole, or so much as they should think necessary, of the income of the property, until the distribution of the capital, affords ground for presuming that he intended a division per stirpes of the capital. Besides, as it was well put by Mr. Sweet in the argument, if the testator intended a division per stirpes of the capital, why did he postpone the division of the fund till the death of his surviving daughter1? Why did he not leave the children of each daughter, upon her death and their coming of age and becoming competent to give receipts, at liberty to claim their third part of the fund 1 I must, therefore, hold that, upon the death of the testator's daughter Elizabeth, his residuary personal estate became divisible among the grandchildren per capita; and I have the satisfaction of believing that this was, most probably, the intention of the testator. Decree accordingly. [12] M'CuLLOCH v. gregory. Nov. 13, 1856. [S. C. 2 Jur. (N. S.) 1134.] and Purchaser. Title. Proving Will. A purchaser of real property, the title to which is derived under a will, is not entitled to have the will established, or to have the concurrence of the testator's heir in the conveyance to him, unless some reasonable ground exists for doubting the validity of the will. This cause now came on upon objections to the certificate of the Chief Clerk, finding that a good title was made to property purchased under a decree. The title was derived under the will of one John Thompson, who died in 1843. On Thompson's death three sheets of paper, purporting to be his will, and dated the 5th of March 1843, were offered for probate in the Prerogative Court, and opposed by the late Mr. Barnard Gregory, as the sole executor under a former will, dated in the previous mouth of February. The will of March, which was an extraordinary document both in appearance and language, is partly stated in a former report of this case, upon another point, in 1 Kay & J. 286. The devise which, it has recently been held by the Court, conferred on the three M'Cullochs estates tail was followed by gifts of legacies and annuities contained in the V.-C. xiv.- 32* 1002 m'culloch v. gregory sk. &j. is. second sheet of the will, on which there were a variety of obliterations, alterations, interlineations and erasures. The third sheet was signed by the testator and attested by the witnesses in pencil. The M'Cullochs were not originally parties to the suit in the Ecclesiastical Court, but the suit was carried on between Barnard Gregory on the one hand, and Mrs. Le Bas on the other, who, as sole next of kin of the testator, claimed to be entitled to letters of administration with the will of March annexed, there being no executors appointed by that will. Mrs. Le Bas also claimed to be heiress at law of the testator. In June 1846 the Judge of the Prerogative Court de-[13]-cided in favour of the will of March as contained in the three sheets of paper (see Gcmn v. Gi-egory, 3 De G-. M'N. & G. 777); and against this decision Mr. Gregory presented his petition of appeal ,to the Privy Council. Pending these proceedings in the Ecclesiastical Court Mr. Gregory and Mrs. Le Bas intermarried; whereupon their interests became united, and the M'Cullochs were called upon to "intervene" in the suit, which they did: .and they also filed a bill in this Court to protect the personal estate during the litigation ; to have it declared, so far as the real estate was concerned, which was the last will of John Thompson; and to have such will established and the trusts thereof carried into execution. Before any decree was pronounced a compromise was entered into by articles of agreement between the parties, by the terms of which Mr. and Mrs. Gregory were to pay the M'Cullochs 15,000 in consideration of their releasing and conveying all their estate and interest under the will; the 15,000, until paid, to remain a charge on all the real and personal estates of the testator. Some delay having arisen in payment, further proceedings were taken by the M'Cullochs to realise their charge; and, ultimately, a sale of the estate was directed by a decree of this Court in 1852. On the delivery of the abstracts the present purchaser insisted upon his right to call upon Mrs. Gregory for strict proof as to her heirship; and, upon evidence of this being furnished, objected that it was deficient. The Chief Clerk considered him entitled to the proof, and...
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