Mostyn (Thomas) v Mostyn (Robert John)
| Jurisdiction | England & Wales |
| Judgment Date | 14 July 1854 |
| Date | 14 July 1854 |
| Court | House of Lords |
English Reports Citation: 10 E.R. 857
House of Lords
Mews' Dig. xv. 860. S.C. 23 L.J. Ch. 925; and below, 3 De G. M. and G.140; cf. Grant v. Grant, 1870, L.R. 5 C.P. 380, 727; In the goods of Brake, 1881, 6 P.D. 217.
Will - Mistake in the Name of Legatee.
[155] THOMAS MOSTYN- Appellant; KOBEKT JOHN MOSTYN,-Respondent [July 6, 7, 10, 14, 1854.] [Mews' Dig. xv. 860. S.C. 23 L.J. Ch. 925; and below, 3 De G. M. and G. 140; cf. Grant v. Grant, 1870, L.R. 5 C.P. 380, 727; In the goods of Brake, 1881, 6 P.D. 217.] Will-Mistake in the Name of Legatee. A Testatrix, who, without professional assistance, made her own will, named Robert John M. (the eldest son of her brother) her Executor. She then created two annuities, of 50 each, in favour of two persons, and made a gift to a third, but in terms which left it doubtful whether the gift was of that specific sum, or of an annuity to that amount; she then proceeded thus: " My dear nephew, John Henry M. of H., Surgeon, but late of Calcott Hall the above bequests to fall into his hands and should he not marry to be divided equally between Samuel M. John M. and Mary D " (formerly Mary Margaret M., but then a married woman), " all of them late of Calcott Hall, must receive each 50, the residue to fall into my above-named Executor's hands," There was a son, Thomas, born between Samuel and Mary, but there was no son named only John; the second nephew, John Henry, died unmarried; the others survived him. Held, affirming a decision of the Master of the Rolls, and of Lord Justice Turner (Lord Justice Knight Bruce having dissented), that Thomas was not entitled to any share of the residue. Barbara Sheldon, by a Will, written entirely by herself, dated 24th November 1824, but not executed till 2d December in that year, devised, among other things, as follows: " I direct all my just debts, being made as moderate as possible, by my nephew, Robert Mostyn, of Calcott Hall, North Wales, Flintshire, who I here nominate my executor, who will of course be liable to the folio-wing bequests. I leave to my cousin, Mr. Thomas Lemon, the sum of fifty pounds a year for his life, and also the same sum of fifty pounds a year to his sister, Mary Lemon, for her life. I also bequeath, to my dear, long-tried friend, Margaret English,-when I look back, and recollect the number of years that she has expended more than that sum of fifty pounds upon me, her unworthy friend, I feel ashamed in now, yes, in now writing so shabby a sum. [156] The above Margaret English now resides at St. John's Green, Colchester, Essex. My property in this house to be taken as marked out. My dear nephew, John Henry Mostyn, of Holywell, surgeon, but late of Calcott Hall, Flint shire, North Wales, the above bequests to fall into his hands; and should he not 857 V H.L.C., 157 MOSTYN V. MOSTYN [1854] marry, to be divided equally between Samuel Mostyn, John Mostyn, and Mary Davies, all of them late of Calcott Hall, must receive each fifty pounds; the residue to fall into my above-named executor's hands." The testatrix died on the 6th December 1824. A brother of the testatrix, named Samuel Mostyn, had formerly lived at Calcott Hall, but he died in her lifetimeL He left five children, Robert John Mostyn, John Henry Mostyn, Samuel Johnston Mostyn, Thomas Mostyn, and Mary Margaret Mostyn (Mrs. Davies); but there never was a son named tmly John. The younger children resided at Calcott Hall till the death of their father, when Robert John Mostyn, the eldest son, took possession of the house; the others then went tx reside elsewhere. The Will was proved in March 1825, by Robert John Mostyn. John Henry Mostyn died in 1835, unmarried. Of the three persons alleged to be annuitants, Margaret English died in 1828, and Thomas Lemon in 1844. Mary Lemon still survived. On the 20th October 1852 Thomas Mostyn filed his claim in Chancery against Robort Henry Mostyn, for two undivided third shares of the residue of the estate of Mary Sheldon, contending that Margaret English, as well as Thomas Lemon, was an annuitant of 50, and not a mere legatee of a sum of money to that amount; and that on the death of each of these annuitants the capital fund required to produce the annuity became vested, as residue, in the three persons who* were to take on the death of John Henry Mostyn unmarried; and he further contended that [157] he was one of those persons, although erroneously named in the Will as John Mostyn. The claim came on for hearing before the Master of the Rolls, on the 14th of February 1853, when it was ordered to be dismissed, but without costs. The case was taken before the Lords Justices Knight Bruce and Turner, who were divided in opinion; and so the judgment in the Court below stood affirmed (3 De Gex Macn. and Gord. 140). The present appeal was then brought to this House. Mr. Anderson and Mr. W. R. A. Boyle, for the Appellant.-The testatrix has here made a mistake in the Christian name of the Appellant; but the whole context of the Will shows that she intended to' benefit him. John Henry is the only person whose name is correctly given in the Will. He was the favourite object of the testatrix's bounty; but if he died unmarried, she meant that the property should go to the younger nephews and the niece. Robert was provided for by his father's fortune; the others were not, and .therefore were naturally objects of her bounty, next after her favourite, John Henry. At the time of the date of the Will, and of the death of the testatrix, the eldest son, Robert John, actually resided at Calcott Pall; the others had quitted it; and she describes them as " late of Calcott Hall." That is a. material fact, and affords a clear and undoubted key to the intention of...
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Mostyn v Mostyn
... ... [S. C. 5 H. L. C. 155; 23 L. J. Ch. 925.] A testatrix, after appointing her nephew, Robert M., her executor, bequeathed life annuities, and directed "the above bequests to fall into the s of" her nephew, John Henry M., late of C. Hall; but if he should not marry, to be divided equally between Samuel M., ... five children born in the following order, Robert John M., John Henry M., Samuel Johnson M., Thomas M., and Mary M., but no nephew named John M. Held, affirming decree of the Master of the Rolls ... ...