Macoubrey v Jones
| Jurisdiction | England & Wales |
| Judgment Date | 10 June 1856 |
| Date | 10 June 1856 |
| Court | High Court of Chancery |
English Reports Citation: 69 E.R. 957
HIGH COURT OF CHANCERY
See Collingwood v. Stanhope, 1869, L. R. 4 H. L. 61; Reid v. Hoare, 1884, 26 Ch. D. 368; Domvile v. Winnington, 1884, 26 Ch. D. 387.
settlements. Portions. "Younger" Children. Accruer. Younger Son becoming Eldest. Disentailing Deed.
[684] macotibeey y. jones. June 9, 10, 1856. [See Collingwood v. Stanhope, 1869, L._K. 4 .H. L. 61; Reid v. Hoare, 1884, 26 Ch. D. 368; Domvile v. Winnington, 1884, 26 Ch. D. 387.] Settlements. Portions. " Younger" Children. Accruer. Younger Son becoming Eldest.. Disentailing Deed. A second son, becoming the eldest son in the lifetime of his father, who was tenant for Jife: with remainder, subject to trusts for younger children's portions in strict settlement, was prevented from taking an interest in the bulk of the estate by reason of a disentailing deed executed by his father and elder brother. Held, that he was entitled to a share of the portions provided for younger children, notwithstanding a proviso for accruer in the event of a younger son becoming an eldest son; the;Court being of opinion that, in being excluded by the disentailing deed, he was in effect excluded by the settlement, of which the disentailing deed was necessarily an incident, and the intention was clear to exclude none from the portions who were excluded by the settlement from taking the bulk of the estate. Peacocke v. Pares (2 Keen, 689) observed upon. It is in conflict with Spencer v. Spencer (8 Sim, 87), and not to be followed as an authority. By the marriage settlement of Benjamin Evans and Easter, his wife, then Easter Griffith, dated -June 1813, real estate was limited to the use of Benjamin, for life, with re-[685]-mainder to the use of Easter for life ; with remainder to, trustees during the lives of Benjamin and Easter and the survivor of them, upon trust to preserve conr 958 MACOUBRET t , JONES 2K. &J.686. tingent remainders ; with remainders to the use of trustees for a term of 1000-years upon the trusts thereinafter declared ; and, subject thereto, to the use of the first son of Benjamin and Easter to be begotten, and to the heirs of the body of such first son; and in default of such issue, to the use of the second and other sons of Benjamin and Easter severally, successively and in remainder; and the heirs of their bodies; with remainder to the daughters of Benjamin and Easter as tenants in common in tail, with cross-remainders in tail, with remainder to the use of Benjamin in fee. And as to the term of 1000 years, it was declared that the same was limited, upon trust that in case Easter should have issue by Benjamin any other child or children besides an eldest or only child, whether the same should be son or daughter, then the trustees at any time after the decease of Benjamin and Easter, or in their lifetime, or in the lifetime of the survivor, with their, his or her consent first had in writing, notwithstanding the coverture of Easter, should by sale or sales, mortgage or mortgages, of the term or of the premises therein comprised, raise and levy the sum of £1000 for the portion or portions of such daughter or daughters, youngest son or sons, of Easter by Benjamin to be begotten, to be paid to such daughter or daughters, youngest son or sons, in equal shares and portions, when they should respectively attain the age of twenty-one years, or day or days of marriage, which should first happen, in ease such ages or marriages happened after the death of Benjamin and Easter, otherwise, the said respective portion or portions to be raised and paid within twelve calendar months next after the decease of Benjamin and Easter. And it was thereby provided that if any such daughter or daughters, younger son or sons, should happen to die without [686] issue before his, her or their portion or portions should become payable as aforesaid, or if such younger son or sons should become an eldest son, then the portions of him, her or them so dying without issue, or becoming an eldest son respectively, should go, accrue, and be paid to the survivors of them respectively, share and share alike, when the said original portion or portions should become payable as aforesaid. There was issue of the marriage Benjamin Griffith Evans, the first son, George David Evans, the second son, who was born in 1815, and four other children. Easter died in 1828. In September 1843 Benjamin Griffith Evans joined his father in disentailing the settled estates; and by the disentailing deed such estates were released and conveyed by Benjamin Evans and Benjamin Griffiths Evans to the Defendant, Jones, for a term of ,500 years, subject to a proviso for redemption upon payment by Benjamin Evans and Benjamin Griffith Evans or either of them, of £1200 advanced by Jones in payment of a debt previously charged on the life-estate of Benjamin Evans; with remainder to the use of Benjamin Evans for life, with remainder to the use of Benjamin Griffith Evans in fee. By the settlement on the marriage of Benjamin Griffith Evans with the Plaintiff, dated December 1843, the estates were settled, subject to the terms and to the life-estate of Benjamin Evans to Benjamin Griffith Evans for life, with remainder to the Plaintiff for life, with remainder to Benjamin Griffith Evans in fee. In May 1845 Benjamin Griffith Evans died intestate and without issue. In May 1849 Benjamin Evans died, [687] having by his will devised the settled estates to his surviving children. The bill was for an account of what was due for principal and interest in respect of the £1000 secured by the term of 1000 years, and of what was due to the Defendant, Jones, for principal and interest on her mortgage ; and it prayed that proper directions might be given for raising and distributing the £1000 and interest, and that the Plaintiff might be at liberty to redeem the premises. The proceedings on the hearing are reported in Mr. Kay's Eeports.(l) Upon the cause now coming on for further consideration, a question arose whether George David Evans, having thus survived his elder brother and become the eldest surviving son of Benjamin...
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