Poad against John Watson the Elder and John Watson the Younger
| Jurisdiction | England & Wales |
| Judgment Date | 30 May 1855 |
| Date | 30 May 1855 |
| Court | Court of the Queen's Bench |
English Reports Citation: 119 E.R. 990
IN THE COURT OF QUEEN'S BENCH AND EXCHEQUER CHAMBER
S. C. 25 L. J. Q. B. 396; 2 Jur. N. S. 1135; 4 W. R. 615. Applied, Collier v. Walters, 1873, L. R. 17 Eq. 262; In re Townsend's Contract, [1895] 1 Ch. 721.
[606] poad against john watson the elder and john watson the younger. [Wednesday, May 30th, 1855.] Testator, in 1794, devised lands at H. to trustees and their heirs, in trust for the use of his daughter for life, and after her decease upon trust and to the use of the heirs of her body, remainders over; and that, if his daughter should marry, her husband should not meddle, and her receipts should be sufficient discharges to the trustees. After bequeathing certain legacies, to be paid twelve months after his decease, testator bequeathed all his personal estate to the said trustees, in trust to sell and apply the proceeds to the payment of the said legacies and of his debts, so far as the same would extend. He then devised as follows : " I do hereby order anil direct, that the surplus of the rants and profits of ray real estates by me hereinabove devised, over and above what shall be laid out" by the said trustees in maintenance of my said daughter during her minority, shall be applied during her minority " in and towards further payment of the said " several legacies and debts; "and, in case the provisions by me above made" for the payment of the legacies and debts "be insufficient for that purpose," "I do hereby charge all and singular the said lands," &c. "at H. aforesaid with and to the payment of such deficiency." "And also that it shall and may be lawful for " the trustees, " by and out of the same premises hereby devised to them respectively, to deduct and reimburse him and themselves respectively all such loss, costs, charges and expences as ho or they or any of them shall pay, sustain, expend or be put unto for or by reason of the performance of this my will, or the trusts hereby in them reposed, or the management and execution thereof respectively, or any other thing in anywise relating thereto."--The trustees, finding 3001. due to them on their trust account, borrowed that sum, and, in 1802, mortgaged the lands at H. for the terra of one thousand years, by way of security. This was paid off in 1803, but the term was never surrendered.-In 1842, the elaughter and her husband mortgaged the premises; and the term of 1802 was assigned in trust for the mortgagee. The daughter having died, her son and heir at law brought ejectment.-Held, by the Queen's Bench, that the legal estate was in tha trustees under the will, and, consequently, that the plaintiff's action failed.-Held, by the Exchequer Chamber affirming the judgment of the Queen's Bench, that the legal estate was not in the plaintiff; Williams J. grounding his judgment, not specially on the estate being in the trustees, but generally on the existence of the term. [S. G. 25 L. J. Q. B. 396; 2 Jur. N. S. 1135; 4 W. R. 615. Applied, Collier v. Walters, 1873, L. R. 17 Eq. 262; In re Townsend's Contract, [1895] 1 Ch. 721.] A writ of ejectment was issued, on 5th May 1854, at the suit of the above named claimant, directed to the above named defendants, who are in possession of certain messuages and hereditaments at Hartoft, in the county of York. The defendants appeared to the writ: and, Martha Rooke and Thomas Morley Rooke having been allowed to appear and defend the possession of the said property, a case was stated for the opinion of the Court, under the provisions of the Common Law Procedure Act, 1852. The case was substantially as follows. [607] Robert Wilkes, being seized in fee of certain messuages and hereditaments, including the premises in question, on 4th September 1794 duly made his will, the material part of which was as follows. "First: I give and devise unto my brother in law Gawin Pickering, and my good friend the Reverend Robert Skelton," "all those my freehold messuages, farms, lands, tithes, hereditaments and premises whatsoever, with the appurtenances thereto belonging, situate "&c. (setting out all the premises of which he was seized in fee), " to hold to them and their heirs for ever: in trust riavertheless and for the only e KL. * BL. 608. POAD V. WATSON 991 proper ue and behoof of my daughter Elizabeth Wilkes, for and during the terra of her natural life, without impeachment of waste: from and immediately after her decease then upon trust and to the use and behoof of the heira of the body of my said dtughter lawfully to be begotten: and, for want of such heirs, or in case of failure of such issue by my said daughter, then upon trust and for the use and behoof of my brother John Wilkes, and his assigns, for and during the term of his natural life and, from and after his decease, then upon this further trust^and to and for the only proper use and behoof of my six nephews and nieces following " (mentioning them by name) " as tenants in common and not as joint tenants, their respective heirs and assigns for ever; and, in case my said daughter shall at any time happen to marry, it is my express will and mind that her husband shall not intermeddle with or have any disposing power over the estates herein by me given in trust for my said daughter, but that her own receipt and receipts alone, notwithstanding her coverture, shall, from time to time, be full and effectual discharges to my said trustees for [608]| all moneys, rents and effects paid and accounted for by them to my said daughter. The testator then bequeathed legacies to several persons "to be paid at the end of twelve calendar months next after my decease. And, as to all the rest, residue and remainder of my penonal estate and effects, whatsoever and wheresoever, I give and bequeath the same to the said Gawin Pickering and Robert Skelton, in trust to sell and dispose of the game and the moneys to arise by such sale and disposition thereof to be by them paid and applied in and towards the payment of the several legacies above mentioned, and of all my just debts, so far as the same will extend: and it is my will, and I do hereby order and direct, that the surplus of the rents and profits of ray real estates by me hereinabove devised, over and above what shall be laid out and expended by my said trustees in the maintenance and education of my said daughter during her minority shall in like manner be paid and applied by the said trustees, during her minority, in and towards further payment of the said several legacies above mentioned and of my just debts: and, in case the provisions by me above made for payment of the said several legacies above mentioned, and of all my debts, be insufficient for that purpose then and in such case, and in order to supply the deficiency, I do hereby charge all and singular the said lands, tenements and hereditaments at Hartoft aforesaid with and to the payment of such deficiency: And I do hereby make, ordain, constitute and appoint the said Gawin Pickering and Robert Skelton joiiit executors of this my will in trust for my said daughter Elizabeth Wilkes; and I likewise nominate them, the said Gawin Pickering and Robert Skelton, to be tutors and guardians of my said [609] daughter during her minority. And, lastly, my will and mind further is, and I do hereby expressly declare, that...
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