Muckleston v Brown
| Jurisdiction | England & Wales |
| Judgment Date | 08 May 1801 |
| Date | 08 May 1801 |
| Court | High Court of Chancery |
English Reports Citation: 31 E.R. 934
HIGH COURT OF CHANCERY
See Podmore v. Gunning, 1832, 5 Sim. 495; Briggs v. Penny, 1849, 3 De G. & S. 547; Lomax v. Ripley, 1854, 3 Sm. & G. 77; In re Boyes, 1884, 26 Ch. D. 537.
934' MUCKLKSTON V. BROWN 6 VES. .TUN. 53. muckleston v. brown. May Gth, S'h, òò : ' ~~ , [See Podmore v. Gunning, 1832, 5 Sim. 495 ; Briggs v. Penny, 1849, 3 De G-. & S. 547 ; Lomaa; v. Eipley, 1854, 3 Sm. & G. 77 ; / re Boyes, 1884, 26 Ch. D. 537.] Bill by the heir at law against residuary devisees, legatees, and executors ; suggesting a secret trust, undertaken at the request of the testator, either not legally declared, or, if so, void as to the real estate, and written acknowledgments by the Defendants of an intended trust for charitable purposes : the will also by equal legacies to them, and some particular expressions, importing a trust. A general demurrer to the discovery and relief was over-ruled. The Bill stated, that the Plaintiffs were co-heirs at law of Isaac Hawkins ; who being seised of the manor and estates of Overseal in the county of Leicester, applied to the Defendants Isaac Hawkins Brown, and the Reverend Thomas Gisborne, and to the Reverend John Ilepworth, to act as trustees in the execution of certain trusts ; upon which he had devised or bequeathed, or proposed to devise or bequeath, all the rest and residue of his real and personal estate not otherwise disposed of ; and that they or some or one of them having agreed to take upon themselves or himself, the execution of the trusts, as Hawkins did then or should duly declare, he made his will, dated the 9th of August 1793 ; reciting, that the Plaintiffs were his co-heirs ; and specifically devising certain estates to each of them and to another person respectively in fee ; and giving several legacies : and as to all and every other his real estates whatsoever and wheresoever not before disposed of and the residue of his personal estate, subject to the payment of his debts and legacies, he gave and devised the said real and. personal estates unto his good friend and relation Isaac Hatvkins Brown, Esq., also to his kinsman the Reverend Thomas Gisborne, of, &o., and John Ilepworth, Rector of Eggington in the county of Derby, and their heirs ; and he appointed them to be executors of that his will. By a codicil, dated the 29th of November 1796, the testator reciting, that since the making his will he had purchased two [53] small farms, one at Overseal, the other at Hilton in the county of Derby, gave and devised such farm, and all his lands and estates at Hilton aforesaid to the Reverend Thomas Gisborne and his heirs for ever ; and as to the farm at Overseal he devised the same to Gisborne and Brown and to their heirs ; " upon trust for the like uses and purposes as my manor and estate at Overseal now stand limited." He then gave several legacies ; concluding with legacies to Brown and Gisborne of £1000 each ; all which legacies, or sums of money ho directed to be paid to the several legatees by the executors named in his will within twelve months after his decease. The bill farther stated, that Hepioorth died in the life of the testator in 1795 ; and the testator died upon the 6th of February 1800 ; that the Defendants entered upon and took possession of the residue of the testator's real and personal estates ; that the manor of Overseal was not specifically devised ; but was included in. and passed by the general devise of all the residue of his real estates ; that no use or purpose was by the will or otherwise declared of the same ; and it appears by the codicil, that the said manor and estates at Overseal should be held by Brown, Gisborne, and Ilepworth, upon certain trusts. The bill then stated applications to the Defendants, and their pretences, that the Plaintiffs are not entitled as co-heirs to the residue of the real estates, the same being by the will and codicil devised to the Defendants absolutely ; and charged, that it is manifest from the codicil, that the devise was to them as trustees ; and that the testator did not intend them to take any beneficial interest in the residue of his real and personal estates ; and that they were so fully convinced, that such was the purpose and intention, that they have repeatedly acknowledged the same ; particularly Gisborne in a letter to Brown ; which the bill stated ; and which, as far as it was material, was in the following terms : "It was as early as the spring of 1789, and probably earlier, that the testator " explained his intentions and wishes upon the subject in question to me. To the " best of my recollection the testator stated, that he proposed to bequeath to his " heirs at law in certain proportions the estates he had inherited ; and, after providing " for Miss Wilkinson, and, I presume, for any specific [54] legacies, to bequeath the " whole residuum of his estates real and personal to his executors, not however for CVED. JUN. 55. MUCKLESTON V. BROWN 935 " their private emoluments, but in full confidence, that conformably to his intentions " they would have laid out the whole of it in charity or for charitable uses : I think, " those were the precise terms : and am. certain, they fully explain his meaning. " He then mentioned the other executors ; and proposed to me to be a third ; to " which I assented, and assured him, I would faithfully perform according to his " intentions my share of the trusts (for so I considered it), if it should ever devolve " upon me. He said, we must repay ourselves out of the residuum, all expences " incurred in executing his intentions. 1 understood him also to mean, that we were " not to have any specific legacies. I have a faint recollection, that he said, we might " keep what we thought fit for our trouble : but I did not hear him. say any thing, " that would have authorised me, even supposing he had left me no specific legacy, " to retain for rny own use, had I been so disposed, any thing material; and I have " no idea, 1 should have thought it right to have taken any thing. I. understood " him to have had public charities, primarily at least, in his own view ; though I " do not say, exclusively. Though I cannot absolutely recollect his using the word " ' private,' I am particularly sure, that appropriating to private charity whatever " we might find ourselves legally excluded from assigning to public charities would " fulfil the spirit of his intention. I expressed my wishes to him, that his will " should specify, that the bequest was not intended for our private emolument, " but for charity : but he intimated decidedly, that it would not be done without " invalidating the bequest. Whether he distinctly named the mortmain (9 Geo. II. " c. 36) or other statutes, as those, which in that case would destroy the bequest, " I cannot say positively. 1 asked him to give me some information as to the parti-" cular kind of charity, to which he would have his executors appropriate part or " the whole of his bequest : but he always replied, that we should be the best judges, " or to that import. I requested written directions. His answer did not excite " in me any hope, that he would give any. He once said, it would be very largo : " approaching £200,000. Many years after the original disclosure of his intentions " he expressed a wish, that a farm he had [55] purchased should go to the benefit " of the descendants of the family, from which he purchased ; and said he must do "something for the poor of Barton; talking of settling £12 a-year or some such " sum. His conversation afterwards threw no farther light upon his intention." The Bill then set forth a statement, drawn out by the Defendant Brown, of his conversations with the testator, and his opinion of the intention ; the material parts of which are, as follows : "February 10th, 1800. The first time I saw him after Mrs. Hawkins's death " he said, he intended to leave the residue of his real and personal estate to mo and " Gisborne ; giving reason to suppose, we should have discretionary powers as to the " application ; unless we received particular directions ; which I expected. I " considered it to be his intention, that a considerable part was to be disposed to " charitable uses, and another part, perhaps considerable, was to be given in private " donations, not only to those, who wore objects of charity, but to persons, who had " claims upon his generosity ; one of whom ho described ; and all of whom I hoped " he would have mentioned in some papers of his own writing ; and that a third " part I might legally reserve to my own use ; though it was never my intention to " do so ; because he said, I might keep what I pleased to myself. The impression " upon my mind was not altered by subsequent conversations, except in the " following particulars. He told me, he had made another will ; but had not made " any alterations (except as to executors). He told me, he intended to leave me a " specific legacy ; which I guessed to be £"1000. In one conversation 1 said to him, " the real estate might be affected by the Mortmain. Act. Ho said, it was...
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