Phillipson v Kerry
| Jurisdiction | England & Wales |
| Judgment Date | 20 June 1863 |
| Date | 20 June 1863 |
| Court | High Court of Chancery |
English Reports Citation: 55 E.R. 247
ROLLS COURT
[628] phillipson v. kerry. June 9, 20, 1863. If a voluntary deed fail to carry into effect the intentions of the parties, it cannot be reformed, except with the consent of the donor. Voluntary deed set aside after the deaths both of donor and donee. This suit was instituted by Charles G. W. Phillipson, the executor and the legatee of Miss Courtail, against the executors of his uncle Charles Burton Phillipson, to set aside a deed of gift dated the 7th of January 1857, from Miss Courtail in favor of Charles Burton Phillipson. Mr. Selwyn and Mr. Kay, for the Plaintiff. Mr. Baggallay and Mr. Bevir, for Mr. Kerry. Mr. G. L. Russell, for the other executor. Mr. Selwyn, in reply. Taker v. Taker (31 Beav. 629) was cited. [629] Jvme 20. the master or the rolls [Sir John Romillyl. This is a suit to set aside a voluntary deed executed by Elizabeth Sophia Courtail, on the ground that the nature and effect thereof were not properly explained to her when she executed it. In the year 1851 a sum of £4275, 4s. 9d. £3 per cent consols, being the residue of the estate of Isabella Susanna Frances Albert, was transferred into the name of the Accountant-General, the trusts of which were to pay the dividends thereof to Elizabeth Sophia Courtail for her life, and after her death, to be divided amongst her children, and in default of children, as she should by deed or will appoint, and in default of appointment, to her next of kin. At this time she was unmarried and about forty years old: at this time she was also residing with Mrs. Mary Burton Phillipson, and she continued to do so until the death of that lady, after which she resided with Charles Burton Phillipson, the son of her friend. The instrument complained of bears date the 7th of January 1857, it purports to be and is a deed of gift of all the sums of stock above mentioned to Charles Burton Phillipson. The mode by which it was effected was this:-She executed two deeds-poll of that date; by the first she exercised the power of appointment given to her by the will of Susanna Frauces Albert in favor of herself. The second deed, which is that complained of, after reciting that, by virtue of the will of Mrs. Albert and the appointment, Miss Courtail was entitled for life to the residuary estate and to it absolutely in case she should die without leaving any child, and that the residue consisted of the £4275, 4s. 9d. consols in Court, proceeded in the following terms:- " Now know ye and these presents witness that the [630] said Elizabeth Sophia Courtail doth hereby give and grant the said sum of £4275, 4s. 9d. £3 per cent, consolidated Bank annuities, so standing in the name of the said Accountant-General of the High Court of Chancery as aforesaid and absolutely appointed to the said Elizabeth Sophia Courtail under the deed of appointment bearing even date herewith, to Charles Burton Phillipson, of 8 Euston Place, New Road, in the county of Middlesex, gentleman, his executors and administrators, for his and their own absolute use and benefit." After the execution of this deed, Miss Courtail continued to reside with Charles Burton Philiipson and his family until his death, which took place on the 26th July 1861. Shortly after this, Miss Courtail went to reside with Mr. Phillipson's widow, she then made a will in favor of the Plaintiff Charles G. W. Phillipson, and she gave 248 PHILLIPSON V. KERRY 32 HEAV. 831. instructions to Messrs. Lovell & Co. to file a bill to set aside the deed in question, and she died on the clay on which it was filed, viz., the 17th of November 1862. She received the dividends on the stock up to the date of her decease. The present bill was filed by the Plaintiff, as her legal personal representative. The question is, whether this deed of gift of the 7th January 1857 can stand. There is this singularity in...
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