Mary Wordsworth and George Wordsworth, infants by William Gillett, their next friend, - Appellants; Frederick Wood and Others, - Respondents
| Jurisdiction | England & Wales |
| Judgment Date | 20 May 1847 |
| Date | 20 May 1847 |
| Court | House of Lords |
English Reports Citation: 9 E.R. 702
House of Lords
Mews' Dig. xv. 974. Contrary view to that taken by Lord Campbell in this case (1 H.L.C. 156), supported by long list of authorities collected in Williams, Exors, 9th ed., vol. 2, 1330, note (k); and see Corneck v. Wadman, 1868, L.R. 7 Eq. 80; Marriott v. Abell, 1869, ib. 478.
Will: Construction of the word "surviving;" to what period referable.
[129] MARY WORDSWORTH and GEORGE WORDSWORTH, infants, by WILLIAM GILLETT, their next friend,-Appellants; FREDERICK WOOD and Others, -Respondents [May 17, 18, and 20, 1847]. [Mews' Dig. xv. 974. Contrary view to that taken by Lord Campbell in this case (1 H.L.C. 156), supported by long list of authorities collected in Williams, Exors, 9th ed., vol. 2, 1330, note (k) ; and see Corneck v. W'adman, 1868, L.R. 7 Eq. 80 ; Marriott v. Abell, 1869, ib. 478.] Witt: Construction of the word "surviving;" to what period referable. A testator, after various bequests, gave to his wife, for her life only, all his remaining estates, and also gave her all his capital in trade, with the three quarters of the profits arising therefrom, for her life; but nevertheless, in trust, at her death, for his then surviving children, share and share alike, " independent of the rental of his said estates, which he gave and bequeathed to his surviving female children," to be paid to them as he directed. The testator then proceeded thus: " On the decease of any of these children, should they die. without issue lawfully begotten, that share to fall to the rest, and so on to the last female child; but should they marry and have children, then Uisii share to go to the said child or children, and from my last female child to the males of my body lawfully begotten, with the same restrictions as before expressed, and to the heirs and assigns of the last of them." . One of the testator's daughters, after his death, married, and died in the lifetime of his widow, leaving children: - Held, that such children did not take any interest under the will, the word " surviving " having reference to the death of the testator's widow, and not to his own. The question in this appeal arose on a clause in the will of Mr. Joseph Wood, the maternal grandfather of the appellants, by which-after directing payment of his debt and funeral expenses, and an abstract to be made of all his property, estates, freehold, leasehold, ground rents, etc., as the property he had to bequeath-he gave and bequeathed to his son, Joseph Carter Wood, one quarter part of the profits of his 702 WORDSWORTH V, WOOD [1847] I H.L.C., 130 brewery in Westminster, and the [130] house adjoining the brewery, rent and tax free, so long as he should reside on the premises in the said house, to conduct the business; the brewery, store-houses, and other premises, to pay to his general estate ,400 per annum rent for the same, net, and clear of all taxes; and he nominated and appointed his wife, Mary Wood, and his said son, his sole executors. After other directions for renewing leaseholds held by the testator under the Dean and Chapter of Westminster, " so that the estates may be always kept renewed, that the younger children may have an equal benefit of time, and so to continue to be provided for, for ever; " and after gifts of freehold cottages to each of his sons, to give them votes for the county of Middlesex, the will proceeded as follows :- " And now I do give and bequeath to my dear wife, Mary Wood, in trust for her life only, all my remaining estates, freeholds, leaseholds, ground rents, and reversions, rent charges, plate, linen, and the household furniture in the houses at Westminster, and Park House, parish of Hayes, county of Middlesex, with the pictures, and any particular articles she may be desirous of from my estates in Devonshire: As also, I leave, give, and bequeath to my said dear wife, all my capital in trade, with the three quarters of the profits arising therefrom, for her life; but nevertheless, in trust, at her death, for my then surviving children, share and share alike, independent of the rental of my said estates, which I give and bequeath to my surviving female children, to be paid them as follows, by my executor, J. C. Wood, or his heirs and assigns ; that is to say, the whole rents and produce, share and share alike, of all such freeholds, leaseholds, ground rents and reversions, rent charges, plate, and household furniture, as before mentioned, but to have no power to sell, mortgage, or in any way whatsoever encumber the same; on the contrary, the rents of which I direct may be received by [131] my executor. J. C. Wood, and paid by him to them one month after each quarter day, that is, on the 25th of January, etc. On the decease of any of these children, should they die without issue lawfully begotten, that share to fall to the rest, and so on to the last female child; but should they marry and have children, then the'ir share to go to the said child or children, and from the last female child to the males of my body lawfully begotten, with the same restrictions as before ex-pressed, and to the heirs and assigns of the last of them. But, be it remembered, that my dear daughter, Mrs. Eliza Johnstone, is exempt from any benefit arising from this my will, the said Mrs. Johnstone having had her share of my property at her marriage, namely, an annuity of 200 per annum, which I do hereby likewise provide for, to be paid quarterly, from my share of three-quarters of the profits of the Westminster brewery; but I should recommend my executors to make a sinking fund immediately after my death, to raise a sum of 4000, which, when raised, I desire may be paid to Captain Hope Johnstone, and so redeem the annuity, that the estate may be free to fulfil my desires and requests, in this my last will and testament contained." A memorandum, signed by the testator, at the foot of the will, contained the following :-" If my executors should think proper to buy up Eliza Johnstone's annuity, the 4000 so paid must be secured by trustees to the said Eliza Johnstone, for her whole and sole use and benefit, independent of her husband, and at her death to her children." The will was dated the 23d of October, 1827; * the [132] testator died soon afterwards, leaving Mary Wood, his widow, Joseph Carter Wood, his eldest son and heir at law, and four younger sons and seven daughters. The testator, at the date of his will and at his death, was owner of a brewery in Westminster, and seized of a freehold farm and lands in Devonshire, a dwelling house and some land at Hayes, Middlesex, both in his own occupation, and divers tenements and ground rents in Westminster and at JBermondsey : also, possessed of divers leasehold public houses, and other tenements and ground rents in and about Westminster, some holden on lease for years, absolute or determinable on lives, from the Dean and Chapter of Westminster. Of the properties in and near Westminster, * The will being found not to have been attested so as to pass real estates, Mr. J. C. Wood, the testator's eldest son, in whom they consequently became vested, executed, in conjunction with others of the children and their mother, certain indentures, dated in 1831 and 1832, in such manner as to effectuate the testator's intentions. 703 I H.L.C., 133 WORDSWORTH V. WOOD [1847] part was held in connection with his trade of a brewer, and was treated by him as part of the capital employed in the trade; other part was not so connected, but held by himself or by undertenants, and forming part of his estate, independent of his trade. Georgiana, one of the testator's daughters, married Mr. Charles F. F. Wordsworth, in 1834, having previously attained the age of twenty-one years; no settlement or agreement for a settlement was made, and she died in April 1837, during the lifetime of the testator's widow, leaving her said husband, and the appellants, her only children, surviving her. In March 1839, the appellants, by their next friend, filed their bill in Chancery against the widow and J. C. Wood, and the other sons and the daughters of the testator, and other parties, stating (amongst other things) to the effect hereinbefore stated, and praying that the trusts of the will might be performed under the direction of the Court; and that the rights and interests of the appellants might be declared and ascertained, and that the usual accounts might be taken, etc. To that bill the respondents, three of the testator's [133] younger sons, demurred for want of equity, and for multifariousness. The Master of the Rolls, before whom the demurrer came to be argued, allowed it for want of equity, the counsel for the respondents having abandoned the demurrer for multifariousness (2 Beav. 25). The Lord Chancellor, upon appeal, affirmed the order of the Master of the Rolls, but gave no costs (4 Myl. and C. 641). This appeal was against both orders. Mr. Hodgson for the appellants : - This appeal is entitled to indulgence, although brought against two consecutive judgments of the Master of the Rolls and the Lord Chancellor. It arose on the construction of a will more than ordinarily obscure, being drawn unfortunately in language peculiar to the testator, of whose intention, however, to make provisions for all his daughters, transmissible to their children, there can be no -doubt-as was observed by the Master of the Rolls. The appeal was advised by Sir W. Follett, of whose assistance the appellants are unhappily deprived. It appears by the will that part of the testator's large property, freehold and leasehold, was held by him in connection with his trade of a brewer, and was treated by him as part of his capital employed in that trade; other parts, held by himself or his tenants, were considered by him as distinct from and independent of his trade; he calls them...
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