Potter v Baker
| Jurisdiction | England & Wales |
| Judgment Date | 05 March 1852 |
| Date | 05 March 1852 |
| Court | High Court of Chancery |
English Reports Citation: 51 E.R. 105
ROLLS COURT
[273] potter v. baker. Feb. 26, 27, 1851. A testator directed the investment of his property in the funds, and bequeathed to A. B. JE50 per year for her and her three children ; and, after her decease, the " money " to be paid to each of them as they attain the age of twenty-one ; but, if either of them died, to be paid to the survivors. Held, upon the context, that this f ave not a life annuity, but such a sum in the funds as would produce .£50 a year, ere there is a simple bequest of an annuity, it implies no more than a gift for life, unless there is something else in the will to enlarge the gift. Thu question depended on the will of a testator, who expressed himself as follows :- "In the first place, I appoint Mr. Thomas Baker and Mr. Edward Wallis my joint executors; that, as [274] soon as possible after my decease, that my freehold house, known by the Red Lion in Parliament Street, Westminster, in the county of Middlesex, be let on lease, at the option of my executors, for the space of twenty-one years or thirty-one years, which they may be able in proportion to get the most money for. In the next place, I leave each of them, my executors, .£10 each. And all the money arising from goodwill, fixtures, plate, china, glass and all other effects R. IV.-4* 106 POTTER t'. BAKER It BBAV. 271. producing from my said freehold, and after all my just debts and funeral expenses are paid, these my executors shall put the money into the funds, to the best advantage for them who I shall hereafter name. The first is my daughter Mary Ann Wisehart; I give to her £50 per year, and to be paid her half-yearly, as long as she lives, and her receipt only shall be a discharge to my executors; and after her decease, then that £50 per year shall go, one-half to Elizabeth Luckhurst and the other half to Mary Ann Ballard, who now resides with me here, who I shall name after. " The next place, I give to Elizabeth Luckhurst, of No. 10 Brook Street, Lambeth, -£50 per year for she and her three children; and after her decease, the money shall be paid to each of them as they attain the age of one and twenty; but if either of them die, to be paid to the survivors. " In ;the next place, I give all my remaining property to Mary Ann Ballard, whatever it might produce, either from the rent of the house, or money in the funds ; and she shall remain in the house till it ia let, if she thinks proper; and after one year, I wish the house to be sold to the best bidder, and the money to be put in the funds, and Mary Ballard to receive the produce of it, and the money to be divided, after her decease, amongst her four children, or any more she [275] might in my lifetime, share and share alike, as they come to the age of one and twenty." The testator died in 1823, and in the same year Elizabeth Luckhurst married John Potter. By the decree of the Vice-Chancellor of England it was declared that the annuities of £50 each were not payable out of the real estate of the testator; but, by an order of the Lord Chancellor, on appeal, dated the 2d of May 1831, it was declared that the goodwill and rent of the premises in the hands of Thomas Baker and Edward Wallis were subject to the charges created by the testator's will. Elizabeth Potter died in 1848, and her children, who had sold their interest to Henry Scarth, joined him in the present petition which insisted that, by the will and assignments, Henry Scarth was entitled to an annuity of £50 per annum in perpetuity, charged on the real estates of the testator. The Petitioner asked to have the annuity raised and paid or secured to him, in such manner as directed by the will, and for that purpose to have such a sum of £3 per cents, as would be sufficient to produce an annuity of £50 per annum, raised by sale or mortgage of the freehold house, and transferred to him Henry Scarth. Mr. Turner, Mr. Selwyn and Mr. Wakefield, in support of the petition. This is not a gift of a life annuity of £50 a year, but a bequest of so much of a fund as will produce it. Stokes v. Heron (12 Cl. & Fin. 161), Robinson v. Hunt (4 Beavan, 450)...
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