Palmer v Newell
| Jurisdiction | England & Wales |
| Judgment Date | 16 February 1856 |
| Date | 16 February 1856 |
| Court | High Court of Chancery |
English Reports Citation: 44 E.R. 317
BEFORE THE LORDS JUSTICES.
S. C. 20 Beav. 32; 25 L. J. Ch. 461; 2 Jur. (N. S.), 268. See Charles v. Burke 1888, 60 L. T. 381.
[74] palmer v. newet.l. Before the Lords Justices. Feb. 16, 1856. [S. C. 20 Beav. 32 ; 25 L. J. Ch. 461; 2 Jur. (N. S.), 268. See Charles v. Ewke, 1888, 60 L. T. 381.] A donor standing in loco parentis to several children executed a voluntary deed charging real estate with annuities in favour of the children and their mothers, the annuities to females being given to their separate use, and with a power of revocation. Fifteen years afterwards he executed another voluntary deed, not revoking or referring to the former, and giving annuities of smaller amounts, not secured on land, to some of the former annuitants, but not as regarded females, to their separate use. Held, that the annuities were cumulative. This was an appeal from the decision of the Master of the Rolls, reported in the 20th Volume of Mr. Beavan's Reports (page 32), holding annuities given by two voluntary deeds to be cumulative. By one of the deeds, dated the 10th of August 1838, Sir John Chichester demised a freehold estate to trustees, in trust to secure after his death an annuity of 100 for Sarah Lavallin, an annuity of 100 for her son Robert Bruce, an annuity of 52 for Sarah Benham, an annuity of 52 for her daughter Sarah Palmer Benham, an annuity of 20 for Elizabeth Hellyer, an annuity of 40 for Eliza Hellyer (the daughter of Elizabeth and William Hellyer), an annuity of 40 for Elizabeth (the eldest daughter of the said Elizabeth Hellyer); all the annuities were for the lives of the annuitants, and those to females were to be paid to their separate use. And the deed reserved a. power of revocation to the settlor, to be exercised by any deed attested by two or more credible witnesses or by his last will. The other deed was dated the 27th of June 1851, and made between Sir John Chichester of the one part, and different trustees of the other part. It recited that Sir John was desirous of securing the payment after his decease of the several annuities thereinafter mentioned. By the witnessing part he covenanted with the trustees that in case Sarah Lavallin should survive him, and her [75] son Robert Bruce should be living and under the age of twenty-one years at Sir John's death, Sir John's executors or administrators would pay to Sarah Lavallin an annuity of 150 until Robert Bruce should attain twenty-one years or die under that age (such annuity to continue whether Sarah Lavallin should remain single or marry); and further, that immediately after Robert Bruce should attain twenty-one, or die under that age (in case he should be living and under the age of twenty-one years at the decease of Sir John, and Sarah Lavallin should be then living and a spinster), or from and immediately after the decease of Sir John (in case Robert Bruce should have attained the age of twenty-one years or died under that age in the lifetime of Sir John, and Sarah Lavallin should be living and a spinster at the decease of Sir John), Sir John's heirs, executors or administrators would pay Sarah Lavallin an annuity of 100 during her life until she should marry; and further, that in cas& Sarah Lavallin should survive Sir John, and should marry, then his heirs, executors or administrators would, from her marriage, or from the decease of Sir John, or from the time when Robert Bruce should attain twenty-one years or die under that age, pay her an annuity of 50 for life ; and in case Robert Bruce should survive Sir John, and should attain twenty-one, Sir John's heirs, executors or administrators would pay Robert 'Bruce, from the decease of Sir John or from Robert Bruce's. 318 PALMER, V. NEWELL IDEOIK, *0.76. attaining twenty-one, and during the life of Robert Bruce, such annuity as was thereinafter mentioned (that wag. to say), in case Sarah Lavallin should have died or married before the covenant now in statement should come into operation, an annuity of 100 during the life of Robert Bruce; and in case Sarah Lavallin should be living and a spinster ,when the covenant should come. into operation, an, annuity of 50 duriflg the joint lives of Robert Bruce and Sarah [76] Lavallin, or until she should marry in the lifetime of the Robert Bruce ; and after the decease or marriage of Sarah Lavallin in the lifetime of Robert Bruce, an annuity of 100 during the life of Robert Bruce. And further, that in case Eliza Hellyer should be living at Sir John's death, his heirs, executors or administrators would pay her an annuity of 20 for life ; and in case Sarah Palmer Benham should be living at his decease, his heirs, executors or administrators would pay her an annuity of 20 for life. And further, that in case Elizabeth Darner (formerly Handcock) should be living at Sir John's death, his heirs, executors or administrators would pay her an annuity of 15 for life. This deed contained a proviso, that in case any of them, Sarah Lavallin, Robert Bruce, Eliza Hellyer, Sarah Palmer and Elizabeth Darner, should at any time remain more than twenty-four hours during any twelve months at the then present mansion-house of Sir John, then, and in such case and immediately thereupon, their annuities should cease. It appeared that some of the annuitants were Sir John's natural children and their mothers, and that he had stood in loco parentis to the children. The suit was instituted by Sarah Palmer' Benham and Eliza Hellyer to enforce payment of the annuities. Mr. Bagshawe, and Mr. Bagshawe, jun., for the Plaintiffs, and Mr. Piggott, Mr. Speed and Mr. Rodwell, for other annuitants, supported the decree. Mr. Ronndell Palmer and Mr. Amphlett, in support of the appeal. The evidence shews that the grantor had forgotten the first deed when he executed the second. Trifling dif-[77]-ferences in provisions are not enough to exclude the presumption against double portions. Nor is the presumption confined to cases where one of the provisions is by will. It applies generally, and to provisions by way of annuity as well as others. They...
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