Marker v Kekewich
| Jurisdiction | England & Wales |
| Judgment Date | 08 May 1850 |
| Date | 08 May 1850 |
| Court | High Court of Chancery |
English Reports Citation: 68 E.R. 372
HIGH COURT OF CHANCERY
S. C. 3 Mac. & G. 311; 42 E. R. 280. See In re Marquess of Bute, 1884, 27 Ch. D. 217. See also Marker v. Marker, 1851, 9 Hare 1.
[291] marker v. kekewich. May 8, 1850. [S. C. 3 Mac. & G. 311; 42 E. E. 280. See In re Marquess of Bute, 1884, 27 Ch.D. 217. See also Marker v. Marker, 1851, 9 Hare 1.] Limitation of estates to successive tenants for life, with remainders in tail, subject to a term vested in trustees, the trusts of which were, in the first place, by cutting and selling timber of full growth, or by demising, mortgaging or selling the estate (except the mansion-house), for all or any part of the term, or by all or any of the said ways or any other reasonable ways, to raise £30,000, and pay the same to the parties therein mentioned : Held that, as between the tenants for life not impeach-able for waste and the remainder-men, the corpus of the estate must bear the charge; and that the interest of the charge must be paid by the tenant for life in possession, who, in the meantime, was entitled (as part of the profits of the estate) to the timber, which, as such tenant for life, he had a right to cut. The trustees of the term in such a case have not an unlimited discretion to raise the charge in such a manner as they may think fit; and it does not follow that, because their discretion in the mode of raising the charge has been honestly exercised, the charge will be left to be finally borne by those parties upon whom their act might chance to throw it. To a bill by one of the successive tenants for life under the limitation, against the trustees of the term and the tenant for life in possession, to restrain the trustees from raising the £30,000 by sale or mortgage of the estate, until the timber of full growth (of which it was alleged that a large quantity was standing on the estate) had been cut and applied towards that purpose, demurrers were allowed. By an indenture of the 16th of October 1844 Margaretta Marker, in consideration of her natural love and [292] affection for her sons and their issue, and her daughter, conveyed to Sir J. Kennaway and E. Stephens, and their heirs, certain manors, messuages and lands in Somerset, Devon and Dorset, including the mansion and grounds of Combe, in Devonshire, to the use of S. J. Kekewich and J. Pulman, for a term of one thousand years, without impeachment of waste, save only the cutting and felling of ornamental timber as thereinafter mentioned; and, subject to such term, to the use of Margaretta Marker, the settlor, for her life, without impeachment of waste, save as aforesaid; remainder to the use of Henry William Marker for life without impeachment of waste, save as aforesaid; with remainder to the use of Henry Williain. Putt Marker for life without impeachment of waste, save as aforesaid; remainder to the use of the first son of the body of Henry William Putt Marker, and the heirs male of the body of such first son; and, for want of such issue, to the use of the second, third and every other son of the body of the said Henry William Putt Marker, severally and successively, and the heirs male of the body and respective bodies of such son and sons; and, for want of such issue, to the second, third and every other son of the body of Henry William Marker, severally and successively, and the heirs male of the body and the respective bodies of such son and sons; and, for want of such issue, to the use of Thomas John...
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