Moss v Cooper
| Jurisdiction | England & Wales |
| Judgment Date | 27 February 1861 |
| Date | 27 February 1861 |
| Court | High Court of Chancery |
English Reports Citation: 70 E.R. 782
HIGH COURT OF CHANCERY
S. C. 4 L. T. 790. See In re Fleetwood, 1880, 15 Ch. D. 605; In re Stead [1900], 1 Ch. 237.
Will. Absolute Request. Secret Trust.
[352] Moss v. cooper. Feb. 27, 1861. [S. C. 4 L. T. 790. See In re Fleet-wood, 1880, 15 Ch. D. 605 ; In re Stead [1900], 1 Ch. 237.] Will. Absolute Bequest. Secret Trust. A testator, desiring to apply his residuary real and personal estate to charity, was-.-. advised that he must give it absolutely to the legatees, and his will was accordingly U. &H.353. MOSS V. COOPER 783 drawn with an absolute gift of the residue to G., S. and 0. The instructions for the will were in the handwriting of G., who also prepared a statement, containing a list of the legacies given by the will, followed by a memorandum that the testator had suggested that, after the residuary legatees had retained 25 each for their own use, the residue might be divided in a particular way for the benefit of certain charities. The statement also contained a detailed account of the testator's property, consisting chiefly of land. This statement, and a copy of the will, were communicated by G. to S. and 0., and received by them without any express acceptance or refusal of the trust. S. afterwards told the testator that he would endeavour to carry out his wishes. 0. preserved silence on the subject to the last. G. having died before the testator : Held, that there was primd facie evidence that G. was authorized by the testator to make the communication, and was known or believed by both S. and 0. to be so authorized ; and, therefore, that the legatees could not take for their own benefit. In order to fix a legatee with a secret trust it is not necessary that there should be a bargain before the execution of the will. The only distinction between a will made on the faith of a previous promise, and a will followed by a promise, is that, on a gift to A. and B. on the faith of a promise by A., the trust is fastened on the gift to both ; but if the will is first made and communicated only to A., his acceptance of a secret trust will affect his own gift only, and not the gift to B. Where a testator intends to fix a secret trust on an absolute gift, and that intention is communicated without the testator's authority to the legatees-qucere, whether their subsequent silence would not'be a sufficient acceptance of the trust to exclude them from the beneficial enjoyment of the gift. John Hill, of Derby, surgeon, by his will, dated the 25th of October 1856-after bequeathing a number of- legacies to charitable institutions, payable out of such part of his personal estate as was legally applicable to the payment of charitable bequests, legacies of 25 each to the Rev. James Gawthorn, Wm. Sedman and James Owen, and certain other pecuniary legacies-directed his trustees to stand possessed of the residue of his real and personal estate, upon trust to divide the same equally between the said James Gawthorn, Wm. Sedman and James Owen, their respective executors, administrators and assigns. James Gawthorn died in the lifetime of the testator, and the testator died in September 1857. The Plaintiffs, one of whom was the testator's heir at law, and both of whom were among his next of kin, [353] alleged that the residuary gift to Sedman and Owen was made upon a secret trust for charity, which had been tacitly, or otherwise, accepted by the legatees ; and that the gift entirely failed, the charity legacies given by the will being sufficient to exhaust the pure personalty. The Rev. James Gawthorn was the minister of a Congregationalist chapel in Derby and a confidential friend of the testator. In 1853 the testator gave instructions to his solicitors, Messrs. Barber & Currey, for his will, which was prepared in their office (in the absence of Barber), and contained gifts of the whole real and personal estate to various charities. On the 20th of October 1856 Gawthorn had an interview with Barber, and informed him that the testator wished to have some alterations made in his will, and promised to call and give instructions for the alterations. On the 27th of October the testator and Gawthorn called on Barber and gave him a paper of instructions for the amendments, which was in Gawthorn's handwriting. This paper contained a list of charity legacies to the amount of 1950 and personal legacies to the amount of 300. Then came a summary of the testator's property as follows: - Derbyshire Bank ..... 1000 Furniture, &c. ..... 250 St. Alkmond's ..... 600 Green Lane ...... 200 Friar Gate ...... 800 Bridge Street ..... 500 784 MOSS V. COOPER 1J. &H.354. Brook Street ..... 250 Boulton ...... 400 [354] Uttoxeter ...... 800 Cannock Railway (query) .... 300 Mortgage, Gregory ..... 300 Bridge Street ..... 550 And the paper concluded thus :- "All the residue, in confidence, to three individuals, on the express understanding that each of them may retain 20, and no more, to his own use, and divide all the remainder equally among all the above-named societies or institutions. The three individuals to be ." Barber's evidence, as to what took place on this occasion, was as follows :- " I read over the names and descriptions of the charitable institutions and charities with the testator and Gawthorn, and corrected some of them. On the said James Gawthorn having left the testator with me, I called his attention to the memorandum that the residue was to be given in confidence to three individuals, not then named, to retain 20 each, and divide the remainder amongst the charities mentioned ; and I informed the testator that he could not devote the produce of his real estate, or of mortgages, to charitable purposes ; but that, if he wished to prevent litigation, he must give it absolutely, and unconditionally, to the legatees, so that they could put the residue in their own pockets. I suggested an increase in a legacy of 20 to his housekeeper; and he replied that the legatees could do that. The testator then gave the names of the residuary legatees, and the instructions were then finally completed, in pencil, by me, from the mouth of the testator himself, no other person being present. The material pencil alterations [355] were as follows :-The housekeeper's legacy was increased from 20 to 25; there were added "to the list of pecuniary legacies- Eev. James Gawthorn ..... 25 W. Sedman ...... 25 J. Owen ...... 25 A direction was inserted that the charity-legacies were to come out of personalty. The residuary bequest was first altered so as to make the different charities take ' according to their legacies,' and the trust was then struck out, and the names of Gawthorn, Sedman and Owen were introduced as residuary legatees. The will of the testator was, accordingly, prepared in my office from the aforesaid instructions, and, when copied, was sent to the testator, at his house, to look over. "On Saturday, the 25th day of October 1856, the testator called upon me, and brought with him the will. Previously to his execution of the will, I read it over to him, and particularly called bis attention to the absolute gift of the residue ; and asked him if it...
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