Parker v Sowerby
| Jurisdiction | England & Wales |
| Judgment Date | 14 June 1854 |
| Date | 14 June 1854 |
| Court | High Court of Chancery |
English Reports Citation: 43 E.R. 531
BEFORE THE LORD CHANCELLOR LORD CRANWORTH AND THE LORDS JUSTICE.
S. C. 23 L. J. Ch. 623; 18 Jur. 523; 2 W. R. 547; 2 Eq. Rep. 664.
[321] parker v. sowerby. Before the Lord Chancellor Lord Cranworth and the Lords Justices. June 14, 1854. [S. C. 23 L. J. Ch. 623; 18 Jur. 523; 2 W. R. 547 ; 2 Eq. Rep. 664.] A testator bequeathed to his wife an annuity payable out of part of his real estate, and he devised other real estate to trustees upon trust on the youngest of his nephews and nieces coming of age to sell and to divide the proceeds among his nephews and nieces: the testator gave to the trustees an express power to lease and also a general power to manage, and to cut timber for the purpose of repairs at their discretion. Held, that the widow was bound to elect between the annuity and her dower. Held, also, that in order to raise a case of election against the widow, it must be shewn from the will that the husband intended to dispose of the property subject to dower in a manner inconsistent with the right to dower; and that the power to lease given to the trustees was a sufficient evidence of such intention ; further, that the powers to manage and to cut timber were inconsistent with the right to dower. This waa an appeal from an order made by Vice-Chancellor Kindersley, dated the 4th June 1853, and the question raised was whether Sarah Monkhonse, the widow of the testator in tie suit, was or not bound to elect between her dower and thirds out of the testator's real estate, and the benefits given to her by his will. John Monkhouse, the testator, was, at the time of making his will and at his death, entitled to a freehold estate in fee-simple situate at Low Braithwaite in Cumberland of the yearly value of 70, and to freehold and copyhold estates situate at Sowerby Row and Longlands in the same county of the yearly value of 70 : all these estates were subject to the rights of his widow to dower and thirds thereout. 532 PAEKBB V. SOWERBY 4 DE O. M. fc a. 322. By his will, dated the 15th August 1853, the testator devised as follows ;-"I give to John Pollock, son of Thomas Pollock, my nephew and heir at law, all my estate at Low Braithwaite in the parish of Hisket in the county of Cumberland, he paying unto my wife 40 a year by two equal payments so long as she remains my widow, but if she marry again then my will is only 10 a year from the said estate during her life. And I do hereby appoint Joseph Sowerby, John Simpson, and William Scott, trustees under this my will, unto whom I give full power to act in conformity to this [322] my will. All my estate at Sowerby and my estate at Longlands I give into the hands of my trustees, to have power to let the same till all my nephews and nieces be of the age of twenty-one years. I give to my sister Margaret Parker 10 a year to be paid to her in addition to the 4s. a week left her by my father Isaac Monkhouse during her life, the other part of the rents to pay my just debts should any bonds or notes stand against me at the time of my death : then, after the youngest of my nephews and nieces is of age, then my will is that the estates be sold by my trustees to the best advantage, and the price thereof to go in equal shares share and share alike amongst all my nephews and nieces, Joseph Parker and John Pollock excepted : should Margaret Parker be living, then my trustees to secure her 10 a year during her life, and after her decease to be divided as above : my trustees to take to themselves reasonable expenses for their trouble; no wood to be cut or sold but what may be wanted for necessary repairs of the buildings, which I leave to the discretion of my trustees : if my wife should have a child or children by me born after my decease, this will is of no effect, as such child will be heir to all I have, and if more than one, share and share alike." The testator died in the year 1837, leaving Sarah Monkhouse, his widow, him surviving The widow died on the 14th February 1847, having received from the trustees of the will her dower and thirds in respect of the estates at Sowerby Row and Longlands, and having also received out of the rents of Lower Braithwaite the annuity of 40 given her by the will. In December 1849, the present suit was instituted by the nephews and nieces of the testator for the purpose of carrying into effect the trusts of the testator's will: the bill charged that Sarah Monkhouse was bound to elect between the annuity of 40 and her dower and thirds out [323] of the estates at Sowerby Row and Longlands, and that she ought to be deemed to have elected to take the annuity, and an account was prayed accordingly. The question thus raised came on to be determined, upon the hearing on further directions, before the Vice-Chancellor Kindersley, who made an order, dated the 4th June 1853, declaring that the widow was bound to elect, and that she must be deemed to have elected the annuity, and that the trustees of the testator's will were not entitled to be allowed the sums paid by them in respect of dower (1 Drewry, 488). Against this order, John Simpson and William Scott, the surviving trustees of the testator's will, appealed ; and the case now came on before the full Court of Appeal. Mr. Swanston and Mr. Bagshawe, jun., in support of the appeal. There is no inconsistency between the provisions made for the wife in this will and her right to dower. The Vice-Chancellor was apparently of this opinion, but thought he was bound by decisions to the effect, that a devise in trust to lease indicates an intention so to dispose of the estate that the wife's enjoyment of dower is inconsistent with it. It is submitted, however, that a power to lease cannot of itself warrant this conclusion, and that so to hold is to depart from the true application of the principle of the general rule, that an intention must be collected...
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