Monypenny v Bristow
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1830 |
| Date | 01 January 1830 |
| Court | High Court of Chancery |
English Reports Citation: 39 E.R. 339
HIGH COURT OF CHANCERY
S. C., 1 L. J. Ch. (N. S.), 88.; see Phillips v. Homfray, 1883, 24 Ch. D., 464.
[117] monypenny v. bristow. liolh. Dec,. 21, 1830; L. C., Nor. 1C, 18,1831; Jan. 25, 1832. [S. C., 1 L. J. Ch. (N. S.), 88. ; see Phillip v. Hoinfray, 1883, 24 Ch. D., 464.] The rule of law, that the title to land cannot be tried in an action for money had and received, does not apply to cases where only the past-gone rents of lands are in question. Where a codicil in its dispositive part is applicable solely and expressly to the property previously devised by the will, it has not the effect of republishing that will, so as. to carry after purchased property, notwithstanding a more general intent indicated in its recital. The widow of a testator, with the acquiescence of his heir, was let into possession of certain freehold houses, under an erroneous supposition that they passed by the will along with other property, in which a life interest was devised to her ; and before the error was discovered or her right disputed she died. On a bill filed by the heir against her personal representative, praying the delivery of title deeds and an account, it was held, that the suit was maintainable for the rents received during her continuance in possession; that as the defence of the Statute of Limitations was not raised upon the pleadings, the account should be taken from the time when the Plaintiff's title first accrued; and that the Plaintiff was not at liberty to set off the amount of such rents against payments made by the widow in her character of executrix, those payments being, by virtue of a special trust, a primary charge upon, the estates, of which, subject to the widow's life interest, the Plaintiff was devisee. James Monypenny by will, bearing date the llth of February 1804, and duly attested, after confirming his marriage settlement, whereby certain lands were settled on his wife for her jointure, gave and devised to his said wife, as a further provision, certain lands in the parishes of C and T for her life ; he then gave and devised certain other lands in the parishes of G and M to his brother Thomas Monypenny for life, with remainder to the second son of the said Thomas for life, and to his first and every other son in tail; and he devised certain other lands in C unto his brother Robert Monypenny for life, with remainder to the son of the said Robert for life, and to his first and every other son in tail; and he gave and devised his house, called Maytham Hall, and the rest, residue, and remainder of his real estate whatsoever, in possession, reversion, remainder, and expectancy, except as before devised, unto his brothers Phillips Monypenny, Robert Mony-[118]-penny, and Thomas Monypenny, and their heirs, upon trust, within six months after his decease, to sell or dispose of so much of his said last devised estates as should be sufficient to pay off and discharge all his just debts and legacies, and also his funeral and testamentary expenses, it being his express will and desire that his personal estate should be wholly freed and dis- 340 MONYPENNY V. BRISTOW 2 BUSS. & M. 119. charged from all payments and demands whatsoever; and subject thereto he devised the same to his brother, Phillips Monypemiy, for life, with remainder to his first and every other sou successively, in tail male, with divers remainders over; and he gave, devised, and bequeathed to his said brother Phillips Monypenny, his heirs, executors, aud administrators, all his real, copyhold, and leasehold estates in or near the town of Birmingham, and in the parish of Hackney. The testator, by a codicil, bearing date the 25th July 1818, which was duly executed and attested, and which he declared to be a codicil to his will, and desired might be taken as a part thereof, after reciting the devise which by his will he had made of the lands in the parishes of C and T to his wife for life, continued as follows :-"And whereas I am desirous of making a more liberal provision for my said wife, and that she may enjoy the whole of my lands, tenements, and real estates for the term of her natural life, and take my personal estate absolutely, now, therefore, I do hereby confirm the said hereinbefore recited devise; and I do further give and devise unto my said wife, during her life, all those my lands, &c., in the parishes of G and M, and also all those my lands, &c., in C aforesaid" (which the testator recited he had by his said will devised to his brothers Thomas and Robert, and their children respectively); "and I direct that the estate for life, hereby devised to my said wife in my said lands, [119] and situated in the several parishes of G-, M, and C, shall vest in possession immediately after my decease, and take precedence of the several estates thereof respectively devised or limited by my said will." The testator then, after the decease of his wife, gave and devised the said lands, &c., so thereby devised to her for life, to such and the same persons, for such and the same estates, and upon such and the same trusts respectively, as would have taken the same by virtue of his said will; and after reciting that by his said will he had given and devised his house called Maytham Hall, and also all the rest, residue, and remainder of his real estate whatsoever, in possession, reversion, remainder, or expectancy, except as before devised, unto his three brothers and their heirs upon trusts therein expressed, he revoked the said last recited devise; and thereby gave and devised his house called Maytham Hall, and all other his real estate whatsoever which he had by his said will devised to his said three brothers upon the trusts therein mentioned, unto Robert Mouypenny, William Forbes, C. Willis the elder, and C. Willis the younger (whom he also named his executors), and their heirs, upon trust, after his decease, to soil and dispose of such parts thereof as might be necessary for raising and paying his debts, legacies, fnneral and testamentary expenses, and the expenses of their executorship, it being his express will and desire that his said real estate should alone stand charged therewith, and that his personal estate should be freed and discharged therefrom; and subject thereto, upon trust for his said wife during her life, and after her decease upon such and the same trusts as were declared of the real estate by his said will devised to the said Phillips Monypenny, Thomas Monypenny, and Robert Monypenny, and their heirs by his said will, immediately subsequent to the power of sale in that behalf contained. [120] The will then proceeded thus:-"And whereas by my said will I have given, devised, and bequeathed to my said brother Phillips Monypenny, his heirs, executors, and administrators, all and every my real, copyhold, and leasehold estates in or near the town of Birmingham, and in the parish of Hackney; now I do hereby revoke the same devise and bequest, and do hereby give, devise, and bequeath all and every my said estate, so given to the said Phillips Monypenny as hereinbefore lastly recited, unto my said wife for the term of her natural life; and immediately after the decease of my said wife, I give and devise the same unto my brother Phillips Monypenny, his heirs, executors, and administrators, absolutely for ever." In a subsequent part of the same codicil the personal estate was given to Mrs. Monypenny, clear of debts and legacies; and it was provided that whatever debts and...
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