Plenty v West
| Jurisdiction | England & Wales |
| Judgment Date | 14 June 1848 |
| Date | 14 June 1848 |
| Court | Court of Common Pleas |
English Reports Citation: 136 E.R. 1227
IN THE COURT OF COMMON PLEAS
S. C. 17 L. J. C. P. 316.: in Prerogative Court, 1 Rob. Ecc. Rep. 264; in Chancery, 16 Beav.. 173. See Cutts v. Gilbert, 1854, 9 Moo. P. C. 146; Lemage v. Gooban, 1865, L. R. 1 P. & d. 61; In the Goods of De La Saussage, 1873, L. R. 3 P. & D. 44; In the Goods of Petchell, 1874, L. R. 3 P. & D. 156; In the Goods of Howden, 1874, 43 L. J. P. 29; Dempsey v. Lawson, 1877, 2 P. D. 105; Townsend v. Moore, [1905] P. 78.
[201] plenty v. west. June 14, 1848. [S. C. 17 L. J. C. P. 316 : in Prerogative Court, 1 Eob. Ecc. Eep. 264; in Chancery, 16 Beav. 173. See Cutts v. Gilbert, 1854, 9 Moo. P. C. 146; Lemage v. Gooban, 1865, L. E. 1 P. & D. 61; In the Goods of De La Saussaye, 1873, L. E. 3 P. & D. 44; In the Goods of Petchell, 1874, L. E. 3 P. & D. 156; In the Goods of Howden, 1874, 43 L. J. P. 29; Dempsey v. Lawson, 1877, 2 P. D. 105; Townsend v. Moore, [1905] P. 78.] The testator, W. B., by a testamentary paper, dated the 5th of October, 1837, and duly executed and attested, gave, devised, and bequeathed "all his estate and effects, both real and personal or mixed, to certain persons, and to the survivor of them, and the heirs, executors, and administrators of the survivor of them, in trust to divide the same between the three boys of W. West and Caroline Simmons, at their respective ages of twenty-one years; the same to be vested interests.".-A second testamentary paper, dated the 13th of April, 1838, and duly executed and attested, was as follows :-" This is the last will of me, W. B., of, &c. I give and bequeath all my estate and effects as hereinafter mentioned, viz. all my household goods at N. to Caroline, the daughter of W. and F. Simmons, for ever. I also give all my real estate, as well freehold, copyhold, or leasehold, to the said Caroline Simmons, for her life; and, after her decease, to W. West, for the term of his life; and, after both their deceases, to W. and G. West, the sons of the first-named W. West ['and () Which third party, and not the consenting attorney, would therefore have an interest in the detention of the plaintiff. 1228 PLENTY V. WEST 6C. B.202. their heirs, executors, and administrators, for ever,' b.eing struck out], or all my interest therein, during the term of their natural lives, and to the survivor of them, for their life: and then, as to all my copyhold estate of B., to the Kev. H. Budd, and his heirs, for ever, subject to the payment of 5001. to Caroline Simmons and 5001. to the said W. West first named, as soon as the said H. Budd shall come into possession thereof, or within one year after." Appended to this was a codicil, by which the testator appointed Caroline Simmons and W. West, the father, executrix and executor thereof.-A third testamentary paper, dated November, 1839, and also duly executed and attested, was as follows:-"This is the last will and testament of me, the undersigned W. B., of, &c., relating to all my freehold and copyhold lands, tenements, and hereditaments, and all my real estate1 whatsoever, which I hereby give, devise, and bequeath, to the intent that the rents, issues, and profits thereof may be divided into three equal parts, shares, and proportions,-^one third ;. whereof I give and devise to Caroline, the daughter of W. 'and F. Simmons, for her natural life, subject to an annuity of 501. per annum payable to her mother F. Simmons, during her life. Then, as to the other two thirds of the said rents, issues, and profits, I hereby direct the said annual rents and profits to be paid to all the children of W. West, or that he be permitted to receive .the annual rents, issues, and profits of my said freehold and copyhold estates, for the use and maintenance, education, &c., of all his said children until their arrival at the age-of twenty-one years." And W. West was appointed executor, " so far as the same is necessary to the performance of the trusts relating to my. real estate."-The testator died in August, 1840.-W. West, in the three several testamentary papers named, had four children, born in the testator's life-time, viz.. three sons, William, George, and Frederick, and a daughter, Ann:-Held,-first, that the instrument executed in November, 1839, was the only one which had any validity as far as concerned the legal rights of the parties:-Secondly, that Caroline Simmons (and her husband) took no legal estate or interest in the real property devised; and that W. West the father, took, at law, as trustee, an estate in fee in one undivided third part of the real estate, and an interest in the remaining two-thirds .during the^ minority of his children, determinable, as to the respective shares of his children, in the said two thirds, on their respectively attaining twenty-one :-Thirdly, that the four children of W. West took a remainder in fee, as joint-tenants, expectant on the determination of the estate of their father, in their respective shares of the undivided two thirds of the real estate :-Fourthly, that Henry Budd and W. Simmons and Frances his wife, took no legal estate or interest in the real property devised. This was a case sent from the court of Chancery, for the opinion of this court. On the 5th of October, 1837, William Budd, formerly of Burghclere, in the county of Southampton, and late [202] of Newbury, in the county of Berks, since deceased, duly made and published his last will, in his own handwriting, dated the 5th of October, 1837, and executed and attested in such manner as was then by law required for rendering valid devises of freehold estates of inheritance; and thereby gave, devised, and bequeathed all bis estate and effects, both real and personal, or mixed, unto and to be divided equally between, the three boys of William West, and Caroline Plenty, then Caroline Simmons, at their respective ages of twenty-one years, the same to be vested interests. . On the 13th of April, 1838, the said testator made and executed, in manner then required by law, two other testamentary instruments, both in his own handwriting, and both written on one and the same sheet of paper. These instruments (with the signatures and attestations thereto) are as follows :- " This is the last will of me, W. Budd, late of Burghclere, in Hants, but now of Newbury, in Berks, gentleman. I give and bequeath all my estate and effects as hereinafter mentioned, namely, all my household goods [203] at Newbury, to Caroline, the daughter of William and Frances Simmons, for ever. I also give all my real estate, as well freehold, copyhold, or leasehold, to the said Caroline Simmons, for her life; and, after her decease, to William West, of Speen, ironfounder, for the term of his life; and, after both their deceases, to William and George West, the sons of the first-named William West, for all my interest therein, during the term of their natural lives, and to the survivor of them, for their life; and then, as to all my copyhold 6C.B.2M. PLENTY V. WEST 1229 estate at Burghclere, to the Rev. Henry Budd, of White Roothing, in Essex, and his heirs, for ever, subject to the payment of 5001. to Caroline Simmons, and 5001. to the said William West first named, as soon as the said Henry Budd shall come into posses sion thereof, or within one year after: The words in the twelfth and thirteenth lines 'and their heirs, executors, and administrators, for ever,' being first drawn through with the pen as erased. Dated, this 13th of April, 1838. " W. budd (L.S.). " Signed, sealed, published, and declared by the testator William Budd, as and for his last will, in the presence of us, who, at his request, in his and each other's presence, have hereunto set our hands, the 13th day of April, 1838, B. C., H. G., H. G., junior. " Of this my will,, I appoint the said Caroline Simmons, and William West, the father, executrix and .executor: As witness my hand and seal, the day and year above written. '.'-'" "W. budd (L.S.). "B.C., H. G., H. G,, junior." . [204] In November, 1839, the. testator made and executed, in manner then required by law, one other testamentary instrument, in his own handwriting. This instrument (with the signature and attestation thereto) was as follows :- "This is the last will and testament of me, the undersigned William Budd, of Newbury, in the county of Berks, gentleman, relating to all my freehold and copyhold lands, tenements, hereditaments, and all my real estate whatsoever; which I hereby give, devise, and bequeath to the intent that the rents, issues, and profits thereof may be divided into three equal parts, shares, and proportions,-one third whereof I give and devise to Caroline, the daughter of William and Frances Simmons, for her natural life, independent of any husband she may hereafter marry, and for which her receipts alone shall, from time to time, notwithstanding her coverture, be a sufficient discharge; subject, nevertheless, to an annuity of 501. per annum payable to her mother, Frances Simmons, during her life, independent of her present or any other husband, payable quarterly, and for which her receipt alone, notwithstanding her coverture, shall, from time to time, be a sufficient discharge. Then, as to the other two-thirds of the said-rents, issues, and profits, I hereby direct the said annual rents and profits to be paid to all the children of William West, of Speenhamland, iron- founder and engineer, or that he be permitted to receive the annual rents, issues, and profits of my said freehold and copyhold estates, for the use and maintenance, educa tion, and putting forth in the world, of all his said children, until their arrival at the age of twenty-one years. I appoint the said William West executor of this my will, so far 205] as- the same is necessary to the performance of the trusts relating to my real estate. - "W. budd (L.S.). "Signed, sealed, and published by the said testator, in the presence of B. W., B. C., R. G." The testator died in August, 1840...
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