Newman v Newman
| Jurisdiction | England & Wales |
| Judgment Date | 08 November 1858 |
| Date | 08 November 1858 |
| Court | High Court of Chancery |
English Reports Citation: 53 E.R. 880
ROLLS COURT
S. C. 4 Jur. (N. S.) 1030; 7 W. R. 6.
[218] newman . newman (No. 1). Nov. 8, 1858. [S. C. 4 Jur. (N. S.) 1030; 7 W. K. 6.] South Sea stock and £3, 5s. per cents, held, on the context, to pass by the expression " surplus money." A testatrix bequeathed specific sums of South Sea stock and £3, 5s. per cents, to her 26BEAV.219. NEWMAN V. NEWMAN 881 sister for life, and, at her death, she left " this money in trust to her niece " to pay certain legacies, which did not exhaust the whole. She authorized her sister and niece (who were her executrixes) to sell out the residue of " her money" in the £3, 5s. par cents, over the sum she had mentioned, for payment of her debts, and proceeded: "then, if there is any surplus money, I give it to my niece." Held, that the niece took the surplus of both the funds. The testatrix Lucy Hibbert bequeathed as follows:-" To my dear sister, Mrs. Ann Newman, I leave the interest of £2777, 4s. in the South Sea stock and £2650 in the £3, 5s. per cents, for her sole use during her life, and at her death I leave thin money in trust to my niece Lucy Newman to pay the following legacies : "-" To my niece Lucy Newman I leave £1777, 4s. in the South Sea stock and £650 in the £3, 5s. per cents." [She then gave other legacies of South Sea stock and £3, 5s. per cents., but which did not exhaust the whole, and proceeded as follows :]-" I do empower my sister Mrs. Ann Newman and my niece Lucy Newman, after my death, to sell out any of the residue of my money in the £3, 5s., over the sum I have mentioned, for the payment of my funeral expenses, probate of will and any debts I may owe; then, if there is any surplus money, I give it to my niece Lucy Newman for her sole use. I appoint my sister Mrs. Ann Newman and my niece Lucy Newman executrixes." The question was, whether there was any intestacy in respect of the surplus of the South Sea stock and £3, 5s. per cents. Mr. Bathurst, for the Plaintiff: First. The testatrix having given Lucy Newman a specified portion of the two funds, it is inconceivable that she could have in-[219]-tended her to take any further portion of them. 2dly, the words " surplus money " will not pass the South Sea stock or the £3, 5s. per cents.; Ommanney v. Butcher (Turn. & Euss. 260). 3dly, the " surplus money " must be restricted to the residue of the £3, 5s. per cents., which alone the testatrix authorized the sale of. Mr. Henry Stevens...
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