Marsh v Keith
| Jurisdiction | England & Wales |
| Judgment Date | 24 May 1861 |
| Date | 24 May 1861 |
| Court | High Court of Chancery |
English Reports Citation: 54 E.R. 770
ROLLS COURT
[625] marsh . keith. May 6, 7, 24, 1861. A testator devised his estate charged with the payment of a sum to trustees and with interest at 4 per cent. The trustees were to pay the interest to persons for life, and after their deaths, to pay the money charged to their children. Held, upon the construction of the will, that the owner of the estate had a right, in the life of the tenants for life, to pay off the charge. The testator, Joseph Muskett, by his will dated in 1831, devised his freeholds, copyholds and leaseholds to his son Joseph Salisbury Muskett, his heirs, &c., subject nevertheless and he did thereby charge and make chargeable all his said manors and hereditaments thereinbefore devised and bequeathed to his said son Joseph Salisbury Muskett with the payment to John Fellowes and Joseph Sewell of 27,000 and interest for the same, by equal half-yearly payments, at 4 per cent, per annum, the first payment to be made at the end of six calendar months next after his (the testator's) death. And he directed them, and the trustee or trustees for the time being acting under the said will, to stand and be possessed of the same sum, and the interest thereof, upon the trusts and for the purposes therein and hereinafter expressed and declared of and concerning the same, that is to say:-As to the sum of 12,000, part thereof, upon trust to receive the interest thereof, so long as the said principal sum should remain a charge on the said manors and hereditaments, and after the receipt of the same principal sum, to receive the interest and dividends of the stocks, funds and securities on which that sum should be placed out or invested, and pay and apply the interest and dividends thereof respectively for the separate use of his daughter Elizabeth Yetts (since deceased, the mother of the Plaintiffs), for and during her life; and from and immediately after the decease of his said daughter, upon trust that the trustees or trustee acting under his said will should pay the interest, dividends and annual pro-[626]-duce of the said sum of 12,000, and the stocks, funds and securities on which the same might be placed out or invested, to his grandchildren, the Plaintiffs Elizabeth Marsh, Mary Marsh and Joseph Muskett Yetts, in equal shares, for and during their respective natural lives. And from and immediately after the decease of the Plaintiffs Elizabeth Marsh, Mary Marsh and Joseph Muskett Yetts, or of any or either of them, and upon the death of each one of them, then upon trust that the same trustees or trustee should pay or transfer that part or share of the said principal sum of 12,000, in which the grandchild so dying was to have a life interest, to the child, if only one, and, if more than one, to all the children of that grandchild in equal shares and proportions, so as the child or children of him or her so dying should take only that part or share of and in the said sum of 29BEAV.627. MARSH V. KEITH 771 12,000 in which his, her or their parent had a life interest, and the shares of the same children respectively of and in the same to be absolutely vested in them respectively on their respectively attaining the age of twenty-one years, and to be paid or transferred to them respectively as soon after that time, and offer the death of the said testator's said daughter and grandchildren, as conveniently could be. And as to the sum of 15,000 (other part and residue of the said sum of 27,000), upon trust that the trustees or trustee for the time being acting under his .said will should receive the interest thereof so long as the said principal sum of 15,000 should remain a charge upon the said manors and hereditaments, and after the receipt of the said principal sum, to receive the interest and dividends upon which that aum should be placed out or invested; and as to 10,000, part thereof, upon trust to pay the interest and dividends thereof to his said two granddaughters the Plaintiffs Elizabeth Marsh and [627] Mary Marsh in equal shares, but for their own sole and separate use respectively, without being in any way liable to their husband's debts respectively, or being subject to their control; and after the death of each of them respectively, then to pay and divide that sum of 5000, in which the granddaughter so dying should have a life interest, to the children of that granddaughter in equal shares, in the same way and manner, to all intents and purposes, and to be subject to the same trusts, powers and provisions in all respects, as were therein declared concerning that portion of the sum of 12,000 which was thereby provided for her children after the death of his said daughter, as if these trusts, powers and provisions had been again repeated. And as to the 5000, residue of the said sum of 15,000, upon trust to pay the same to the testator's grandson Joseph Muskett Yetts as and when he should attain the age of twenty-one years. And after giving a power of advancement to the extent of one-half of the vested or expectant share of his grandchildren and their issue, respectively, the testator thereby directed the trustees for the time being acting under his said will to lay out aud invest all moneys which they might receive in any of the funds in Great Britain, or on real securities at interest, and to vary and transpose the same, as often and in such manner as they might think proper. And the testator further declared that their receipts should be good and sufficient discharges to all intents and purposes whatsoever. And the testator further declared that, whilst his son Joseph Salisbury Muskett, his heirs and assigns, should duly and regularly pay the interest of the said [628] .sum of 27,000, at the rate and on the days thereby appointed for payment thereof, the same sum should remain and continue a charge on his said manors and hereditaments, and the trustees or trustee of the said sum should not have power to call in and compel payment thereof, but subject nevertheless and without prejudice to the right of the same trustees or trustee to call in and compel payment of the principal of the same sum, when and as it should become and be payable under the trusts thereof thereinbefore declared. The charge of 27,000 was reduced to 26,000 by a codicil. The testator died in 1832, and in...
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