Morrell v Fisher
| Jurisdiction | England & Wales |
| Judgment Date | 05 May 1851 |
| Date | 05 May 1851 |
| Court | High Court of Chancery |
English Reports Citation: 64 E.R. 896
HIGH COURT OF CHANCERY
Followed, Harloe v. Harloe, 1875, L. R. 20 Eq. 473.
[422] morrell v. fisher. May 5, 1851. [Followed, Harloe v. Harloe, 1875, L. R. 20 Eq. 473.] A testator devised his freehold farm, called W., upon certain trusts, and bequeathed his leasehold farm at H. upon trusts for sale and payment thereout of his debts, funeral and testamentary expenses, in exoneration of his general personal estate; and, subject thereto, in trust for the trustees (who were also his executors) beneficially. There was a general residuary gift, subject only to the payment of such of the testator's debts as the proceeds of the leaseholds at H. should be insufficient to pay. Held, that the costs of suits to determine whether certain leasehold land was comprised in the devise of W., the bequest of H., or the gift of the residue, were properly payable out of the proceeds of H. This was a suit to determine the construction of the will of Mark Theophilus Wharton,(2) whereby he devised certain hereditaments by the description of "all that freehold farm called the Wick farm, in Headington," upon certain trusts; and he gave to John Fisher and James Westell, their heirs, executors, administrators and assigns, certain freehold lands, and all his leasehold farmhouse, homesteads, lands and tenements at Headington aforesaid, containing about 170 acres, held under Magdalen College, Oxford, described as being then "in the occupation of Thomas Burrows, (1) See Be Welch, 3 My. & Cr. 292; and Birch v. Cropper, 2 De G. & S. ,255; Plenty v. West, 16 Beav. 356. See also Sir E. Sugden's Essay on the Keal Property Statutes, p. 415. (2) See the will set out in Hall v. Fisher, 1 Coll. 47. 4DEG.&SM.423. HARVESi W. PALMER 89? junior," upon trust, with all convenient speed, after the testator's decease, to make sale and absolutely dispose of the said last-mentioned freehold and leasehold premises respectively, and to apply the monies arising from such sale in payment (after the discharge of incidental expenses) of all his debts and all his funeral and testamentary expenses, in exoneration, so far as the same would extend, of his personal estate, from the payment of such debts and expenses! and he gave the residue of the monies to arise from such sale unto the said John [423] Fisher and James Westell. And the testator bequeathed all his residuary personal estate unto his father, James Morrell (the Plaintiff), his heirs, executors...
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