Perkins v Micklethwaite
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1714 |
| Date | 01 January 1714 |
| Court | High Court of Chancery |
English Reports Citation: 24 E.R. 386
Chancery Division
[274] de term S. hillarii, 1714. Case 65.-perkins versus micklethwaite. (1714.] One devises portions to his children, A. B. and C., and if any die before twenty-one or marriage, the portion of the child so dying to go to the survivor : one of the children dies in the life-time of the testator; this is not a lapsed legacy, but shall go over to the surviving children.(l) One Micklethwaite, who was the defendant's father, had two sons, Thomas and Joseph, and also two daughters, and made his will, giving thereby £1500 to his youngest son Joseph, and £1000 to each of his two daughters, and directed, that if any of his three younger children should die before their age of twenty-one or marriage, then the portion of him, or her, so dying, should go over to the survivors, and gave his real estate to his eldest son chargeable with these portions. One of the daughters died within age, and before marriage; Joseph the younger son died also within age, and before marriage, in the life-time of his father the testator. [275] The father lived to have another son, whom he named Joseph; and afterwards wrote a codicil at the bottom of his will, by which he confirmed the will, thereby taking notice, that since the last, it had pleased God to give him another son, and gave a legacy of £500 a-piece to his son Joseph, and his surviving daughter, over and above what he had given them by his said will. Upon this cause's coming on first before Lord Chancellor Harcourt, touching the share of the deceased daughter's portion, viz. whether, upon the death of the son Joseph the share of the said deceased daughter, that was vested in Joseph, should survive with Joseph's portion 1 His Lordship decreed it should not; (2) because the portion of the deceased daughter became vested in distinct shares in the surviving children, and there were no words for creating a jointenancy of these shares [qucere autem, for a devise over to two or more is a joint devise of course, unless there be words to sever the jointenancy]. But, The other points, being reserved, were argued now before Lord Chancellor Cowper; and whereas it was objected, that by the death of Joseph in the life-time of the testator, his father, the £1500 portion given to him became a lapsed legacy, and should sink into the estate: Lord Chancellor said, it was improper to call this a lapsed legacy, but it was a portion given over, and should...
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