Morris v Dillingham, et e con
| Jurisdiction | England & Wales |
| Judgment Date | 23 February 1750 |
| Date | 23 February 1750 |
| Court | High Court of Chancery |
English Reports Citation: 28 E.R. 110
HIGH COURT OF CHANCERY
morkis' v. dillingham, el e con. Feb. 20, 1750. At the Bolls. Sir J. Strange, Master of the Rolls.-Demand of interest on arrears of an annuity, waived, as not likely to prevail (1) under the circumstances.-[Supplement, 320.] The cross bill demanded interest for arrears of an annuity or rent-charge. Litton v. Litton, 1 Will. 541, and Lady Ferrers v. Lord Ferrers, Tal. 2. Against which it was argued, that interest is never given for arrears of annuity, wherever it is discretionary on consideration of the circumstances; as where it was to exhaust the fund for creditors, or to disinherit an heir at law ; both which circumstances concurred here, and several circumstances of hardship. [Vide Duke of Bedford v. Coke, ante, 116, and Supplement, p. 293, 294.] Sir John Strange. The question of interest is in some degree discretionary in the court: but not so arbitrary as to say the parties shall have interest or not just according to humour, but on the circumstances, and the determinations of the court on questions of that nature if relative to the cause ; otherwise no opinion could be framed of the rule of the court. If creditors may not be paid even their debts, if these arrears are paid with interest, that will have weight in some respect: but that does not appear in the cause, nor any thing as to hardship on an heir at law ; and till that is made part of the cause, cannot be taken notice of. The opinion of the court was reserved on the interposition of counsel for liberty to introduce those circumstances.(1) (Reg. Lib. 1750, B. fol. 667.) (1) The demand was ultimately waived. Vide Reg. Lib. 669, and Supplement, p. 320. Though Lord Thurlow, 0., did give interest on such arrears in Morgan v. 2 VES, SEN. 171, STAFFORD (EARL, of) V. BUCKLEY 111 Morgan, 2 Dick. 643, which, was a case of great delay, and where the party's remedy at law had been prevented : Lord Hardwicke, C., felt himself unwillingly bound to refuse the application in a case of as great hardship, and where the funds were amply sufficient. See Duke of Bedford v. Coke, 1 Dick. 178, and mentioned by Lord Loughborough, C.T from Lord Hardwicke's notes in Creuze v. Hunter, 2 Ves. jun. 166, 167. Vide also that case chiefly in another point. Ante, 116, 117, with the references, and an observation on this case in Supplement, p. 294.
English Reports Citation: 28 E.R. 111
HIGH COURT OF CHANCERY
Distinguished, Ex parte Winch, 1854, 5 De G. M. & G. 226. See Maharana Fattehsangji Jaswatsangi v. Dessai Kallianraiji Hekoomutraiji, 1873, L. R, 1 Ind. App. 49; In re Rivett-Carnac's Will, 1885, 30 Ch. D. 141.
Earl of stafford v. buckley, Feb. 23, 1750. : [Distinguished, Ex parte Winch, 1854, 5 De G. M. & G. 226. See Maharana Fattehsangji Jaswatsangi v. Dessai Kallianraiji Hekoomutraiji, 1873, L. E, 1 Ind. App. 49 ; In re Rivett-Carnac's Will, 1885, 30 Ch. D. 141.] Annuity in fee (vide Smith v. Pybus, 9 Ves. 566, and the cases there cited, more especially the Countess of Holdernesse v. M. Carmarthen, 1 Bro. 377) granted by K. Oh. 2, out of Barbadoes duties is not a rent, nor realty; nor within the statutes either of frauds, or de donis, &c. Therefore being settled on A. " and the heirs of her body," it was held to amount to a fee-simple conditional at the common law, the remainder over being void ; and that A. having had issue, might bar the possibility of reverter. Personal estate incapable of entail. A particular sum being given for maintenance will not bar the party from being entitled to the surplus profits. Mortgages of turnpike tolls, poor's rates, and county rates, are within the statute of Mortmain. (See Knapp v. Williams, 4 Ves. 430, note; also Howse v. Chapman, ibid. 542. So is money secured by an assignment of poor's rates and county rates, Finch v. Squire, 10 Ves. 41.)-[Supplement, 321.] Richard Cantillon, in 1734, made his will (Note : Annuity charged on the Post-office (until a sum should be paid to be laid out in land) continues a personal annuity, and as such to pass by grant or transfer. 1 Brown, 377); first, reciting the provision made for his wife on their marriage, he [171] says, if there should be any deficiency in that, it should be satisfied out of his other effects : then, after giving several annuities and legacies, he says, " I hereby constitute and appoint S. and G. joint executors of " this will; praying them to see the said jointure and legacies paid" ; and directs them to take care of the education of his daughter, to whom he gives £200 per annum, until she is married with their consent, or come of age : then directs them to intai! on his daughter and her issue all the estate and effects, which should belong to him, after payment of the aforesaid jointure, annuities and legacies : but in case of her death and failure of her issue he desired them to divide moietively between his two nephews ; " My intention being that the capital be laid out and secured and the interest " be made good to my daughter for life and to her lawful heirs for ever, but hi case of " her and their failure, the same shall go to my said nephews moietively." This will was not executed according to the statute of frauds : it was made in London, but 'having gone to the Indies, and sent for back again, it was very much damaged, and several blanks in it. Lord Stafford having married the daughter with the consent of the executors, he and his wife brought this bill for the general purpose of carrying into execution the articles made precedent to their marriage, so far as they relate to the estate of the testator, in which Lady Stafford was interested; to have an account of that estate so far as it came to the hands of any of the defendants; and to have that and the real estate of testator settled, conveyed, and disposed of according to the will and articles, and for that purpose to have several questions, made doubts between the parties, determined. For plaintiff. First, what is the subject matter of the will, and the estates to be governed by the directions to carry the will into execution 1 The testator left £1000 per annum, granted by K. G. 2, out of the Barbadoes duties; as to which there are two points to be considered : first, whether it could pass by the will ? Next, if so, whether it is given : As to the first, it is a very particular case : it appears a grant of the profits arising to the crown out of the island of Barbadoes in respect to the sovereignty of the crown over that colony ; for it is not properly a rent, but a specific proportion of the produce of the island, and is paid to the crown in sugar ò being actually paid in specie, the landholder not compounding for money. The grant is in considera- 112 STAFFORD (EARL of) V. BUCKLEY ? VES. SEN. 172. tion of a surrender of a title claimed under letters patent to the Caribbee islands themselves ; Lord Carlisle having had from K. J. 1 a grant of all these islands; but the colony succeeding, objections were made to that extensive grant; which produced an accommodation, viz. a certain annual payment out of those [172] very profits arising to the crown in respect of the seigniory of the island : but that was not quite effectual to the grantee, prior charges exhausting it: therefore a new grant was made, which is now in force, to Lord Kinnovl and his heirs, introducing collateral security, directing payment to be made in case of deficiency out of any other of the King's revenue, as out of the excise, which the King might charge as much as lands of the crown, of which he was seised in fee. This grant in fee afterward came to the testator. The question is, whether this is not real estate 1 Properly speaking, it is not that, which lies in tenure; nor is it perhaps properly and strictly a rent, because that is money paid : but it is a profit apprendre out of the Caribbees, and is like tithes, which are part of the profits, and, if extraparochial, belong to the King jure coronce. It certainly savours of the realty, being paid in respect of the tenure of the land, and incident to the sovereignty, granted byletters patent of England and cannot be granted otherwise. Where a dominion is held of the crown of Great Britain, though they have laws of their own within the seigniory, yet, wherever there is a grant of the seigniory itself, or of any thing arising out of the seigniory, which passes by the King's letters patent, and must be carried into execution in this kingdom; they are governed by the laws of England; as was held in the question concerning the isle of Man, as reported by Lord Coke. Although this four and a half...
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