Monypenny v Dering
| Jurisdiction | England & Wales |
| Judgment Date | 20 July 1852 |
| Date | 20 July 1852 |
| Court | High Court of Chancery |
English Reports Citation: 42 E.R. 826
BEFORE THE LORD CHANCELLOR LORD ST. LEONARDS.
S. C. 7 Hare, 568; 20 L. J. Ch. 153; 17 Jur. 467; 16 M. & W. 418. See Parfitt v. Hember, 1867, L. R. 4 Eq. 447; Juttendromohun Tagore v. Ganendromohun Tagore, 1872, L. R. Ind. App. Sup. 78; Hampton v. Holman, 1877, 5 Ch. D. 191; In re Roberts, 1881, 19 Ch. D. 526; Whitby v. Mitchell, 1890, 44 Ch. D. 90; In re Bence [1891], 3 Ch. 250; In re Abbott [1893], 1 Ch. 57; In re Richardson [1904], 1 Ch. 346. Followed, In re Rising [1904], 1 Ch. 533.
[145] monypenny v. bering. Beforfe the Lord Chancellor Lord St. Leonards. July 17, 19, 20, 1852. [S. C. 7 Hare, 568 ; 20 L. J. Ch. 153; 17 Jur. 467 ; 16 M. & W. 418. See Parjitt v. 3r6- '/ __ Hember, 1867, L. E. 4 Eq. 447 ; Juttendmnohun Tagore v. Ganendramohun Tagwe, """ """ 1872, L. E, Ind. App. Sup. 78; Hampton v. Holman, 1877, 5 Ch. B. 191; In re Roberts, 1881, 19 Ch. B. 526; Whitbyv. Mitchell, 1890, 44 Ch. B. 90; InreBence [1891], 3 Ch. 250; In re Abbott [18931 1 Ch. 57; In re Richardson [1904], 1 Ch. "" "-*-'-+/" 346. Followed, In re Rising [1904], 1 Ch. 533.] ''ft -3 ' ^ : 'iff./.th .'?- ?J. M., by his will, devised the Maytham Hall estate, being of gavelkind tenure, to trustees upon trust to sell a competent part for the payment of debts, and subject thereto upon trust for P. M. for life, and after his decease for the first son of P. M. for life, and after his decease for the first son of such first son and the heirs male of his body, and in default of such issue, for every other sum of P. M. successively for the like interests and limitations, and in default of issue of the body of P. M., or in case of his not leaving any at his decease, for T. M. for life, and after his decease for T. G. M. the eldest son of T. M. for life, and after his decease for the first son of T. G. M. and the heirs male of his body, and in default of issue of the body of the said T. G. M., for every other son of T. M. successively for the like estates and interests, and on failure of all such issue of the body of T. M., upon trust for him, his heirs and assigns for ever; P. M. never had any children :-Held, that P. M. took an estate for life with remainder to his first unborn son, if such son had been born, and that all the remainders over were void :-Held, also, that effect was to be given to the gift over to T. M. and his sons in default of issue of the body of P. M. &c., as an independent clause, and that it was consequently valid. Although by the doctrine of cy pres or by implication, as applied to the construction of a will, an estate may be carried otherwise than in the exact form and manner indicated by the testator, yet it must always be in favour of a class or part of a class of persons intended to be provided for by the testator. 1DE O. M. & 0,1. MONYPBNNY V. DEBING 827 In construing wills effect may in certain cases be given to the general intent at the expense of a particular intent, but this is not to be done without an actual necessity. Where an estate is so limited to A. as would generally raise by implication an estate tail, but there are added limitations to the children of A. which are void for remoteness, it is not a general rule to reject these limitations as unimportant and to give to A. an estate tail, although cases may arise in which this would be done in favour of the clear intention of the testator. The cases of Pitt v. Jackson, 2 Bro. C. C. 51, and Nicholl v. Nicholl, 2 W. Bl. 1159, observed on. Where there are gifts over which are void for perpetuity, and there is a subsequent and independent clause on a gift over which is within the line of perpetuity, effect cannot be given to such clause unless it will accord with previous valid limitations. A gift over made in words comprising only one event will not be construed as made on two events, although in point of fact it may consist very reasonably of two branches, unless it is so expressed by the testator. J. M. provided by his said will that if P. M. or T. M. or any of their issue should become entitled to the Jodrell estate, then the trustees should stand seised of the devised premises upon trust for the next person entitled thereto under his will, sls if the person so succeeding to the Jodrell estate were dead: T. M. died after the date of the will, and the testator by a codicil declared that his trustees should stand seised of the devised estates upon trust for hia wife for life, and then upon the trusts declared by his will, subject to the declaration therein contained with reference to the Jodrell estate. On the death of the widow, P. M. came into possession of the Maytham Hall estate, being at that time entitled to a life estate in remainder in the Jodrell estate, the tenant for life of that estate being then living:-Held, first, that this was not such an interest in P. M. as fell within the intention of the shifting clause, and that it did not in that event come into operation :-Held, secondly, on P. M. *fterwar9fe\cbming into possession of the Jodrell estate on the death of the tenant for life, that then the Maytham Hall estate went over and became vested in the trustees of J. M.'s will:-Held, thirdly, on the construction of the clause generally, that its operation was not confined to one shifting, but that it operated toties quoties as regarded the parties named in it. The Jodrell estate was limited under the will of E. J. to the use of M. J. for life, with remainder to the use of the sons and daughters of M. J. successively in tail, with remainder to the use of S. M. for life, with remainder to her sons and daughters in tail, with remainder to P. M. son of J. M. for life, with remainders to his sons and daughters in tail, with remainder to T, M. another son, of the said J. M. for life, with remainders to his sons and daughters in tail, with divers remainders over. The will contained a proviso that if P. M. and T. M. or either of them, their or either of their issue or any other son or sons of the said J. M. or his or their issue, should become entitled to an estate of freehold or inheritance in possession of or in the Maytham Hall estate belonging to R. M., " so aa to be in the possession or in the actual receipt of the rents and profits thereof," then and in that case the estates devised by her will should shift from the person so becoming entitled in manner therein mentioned. At the date of the will R. M. was entitled to the Maytham Hall estate, partly in fee and partly as tenant in tail. The Maytham Hall estate was subsequently disentailed and devised and so came to the son of T. M. (who was then entitled in possession to the Jodrell estate), by limitation as a purchaser, and not by inheritance or under the original limitations existing at the date of the testator's will. Whether, looking at the dealing with the Maytham Hall estate, it became vested in T. M. in such a manner as to make the Jodrell estate go over. Qiuere. This was an appeal by certain of the Defendants from two orders made in the suit, the one by the Vice-Chancellor Wigram, dated the 7th May 1850, and [146] the other by the Vice-Chancellor Knight Bruce, dated the 18th of July 1851. A very full report of the case, as heard by the Vice-Chancellor Wigram, will be found in the seventh volume of Mr. Hare's Reports, page 568; and it is therefore hoped that the following preliminary statement, though in a much more condensed 828 MONYPENNY V. DEKING a DE 0. M. fc 0.147. form than would otherwise have been deemed necessary, will be found sufficient to render the argument and judgment now reported intelligible to the reader. James Monypenny, of Greenwich, on whose will and codicil the questions in the suit mainly arose, was at the [147] date of his will seised in fee of certain estates in Kent, of gavelkind tenure, called the Rolvenden or Maytham Hall estates. The property had become vested in him as tenant in tail on the death of his eldest brother Robert Monypenny of Rolvenden, and he suffered a recovery to bar the entail. James Monypenny, by his will, dated the llth February 1804, after devising portions of his real estates, gave and devised a part of the estates above mentioned, called the Maytham Hall estate, and all the residue of his real estates, to trustees upon trust to sell a sufficient part to pay his debts and certain legacies, and subject to the above to stand seised of all and every his said real estates, " upon trust to permit and suffer my said brother Phillips Monypenny to receive and take the rents, issues and profits thereof for and during the term of his natural life without impeachment of waste, and from and immediately after his decease upon trust for the first son of the body of the said Philips Monypenny for and during the term of his natural life, and from and immediately after his decease upon trust for the first son of the body of such first son and the heirs male of his body, and in default of such issue, upon trust for all and every other the son and sons of the body of my said brother Phillips Monypenny, severally and successively according to seniority of age, for the like interests and limitations as I have before directed respecting the first son and his issue; and in default of issue of the body of my said brother Phillips Monypenny, or in case of his not leaving any at his decease, upon trust for my said brother Thomas Monypenny, for and during the term of his natural life without impeachment of waste, and from and immediately after his decease, upon trust for Thomas Monypenny (afterwards Thomas Gybbon Monypenny the father of the Plaintiff), the eldest son of my said brother [148] Thomas Monypenny, for and during the term of his natural life without impeachment of waste, and from and immediately after his decease, upon trust for the first son of the body of the said Thomas Monypenny, son of my said brother Thomas Monypenny, and the heirs male of his body, and in default of issue of the body of the...
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