Powys v Blagrave
| Jurisdiction | England & Wales |
| Judgment Date | 05 August 1854 |
| Date | 05 August 1854 |
| Court | High Court of Chancery |
English Reports Citation: 43 E.R. 582
BEFORE THE LORD CHANCELLOR LORD CRANWORTH.
S. C. 2 Eq. Rep. 1204; 24 L. J. Ch. 142; 2 W. R. 700. See Barnes v. Dowling, 1881, 44 L. T. 810; In re Williames, 1884, 52 L. T. 43; In re Hotchkys, 1886, 32 Ch. D. 420; In re Cartwright, 1889, 41 Ch. D. 535; In re Freeman [1898], 1 Ch. 32.
[448] powys v. blagrave. Before the Lord Chancellor Lord Cranworth. July 26, August 2,5, 1854. [S. C. 2 Eq. Eep. 1204 ; 24 L. J. Ch. 142 ; 2 W. R. 700. See Barnes v. Dmvling, 1881, 44 L. T. 810; In re Williames, 1884, 52 L. T. 43; In re Hotchkys, 1886, 32 Ch. D. 420; In re Cartumght, 1889, 41 Ch. D. 535 ; In re Freeman [1898], 1 Ch. 32.] A Court of Equity will not interfere at the instance of a remainder-man, in cases of permissive waste, either by injunction or to give satisfaction against an equitable tenant for life in possession. Testator by his will directed his trustees, after payment of the expenses of keeping his estates in repair, and all such costs as "my said trustees shall expend or be put unto by means of the trusts hereby reposed in them," to pay out of the overplus rents and profits certain sums, and, after payment thereof, to pay the rents to A. and B. successively for life, with remainder to trustees to preserve, with remainder to the first and other sons of B. successively in remainder, and the several heirs male of the bodies of such sons. On a bill filed by the trustees, at the instance of one of the remainder-men in tail, against the second tenant for life, for the purpose of making him accountable for permissive waste : Held, that the costs of the trustees whose bill was dismissed, ought to be paid out of the cot-pus, and not out of the rents and profits of the estate. This was an appeal by the Defendants Anthony Blagrave and John Henry Blagrave from a decree of the Vice-Chancellor Wood, in a cause in which the trustees of certain real estates were the Plaintiffs and John Blagrave, the tenant for life of the estates, and the Appellants, the tenants in tail in remainder, were the Defendants. The questions raised by the appeal were, first, whether a tenant fqr life in possession was accountable in equity at the instance of a remainder-man for permissive waste ; and, secondly, whether, upon the true construction of the will, certain costs of the trustees who raised the question were payable out of the rents and profits, or out of the can-pus of the estates. The Vice-Chancellor decided that a Court of Equity had no means of interfering in cases of permissive waste by a tenant for life, and that the costs in question were payable out of the corpus of the estate. The following extract of the will of the testator, under which the question arose, together with the facts which are material to be stated, are taken from the report of the case in the first volume of Mr. Kay's Reports, page 495. John Blagrave by his will bequeathed to his wife Anne Blagrave one undivided moiety of certain leasehold hereditaments absolutely, and also gave her for life [449] (subject to the provisoes thereinafter mentioned) his mansion, park and appurtenances at Calcot, desiring her to dwell there; and, immediately after her ceasing to inhabit and dwell therein, the said house and park to go to his trustees thereinafter named and their heirs, in the same manner as they would go in case his said wife was dead; and he gave and devised to John Blagrave and John Simeon, their heirs, executors and administrators, all and every his freehold and leasehold messuages or tenements, lands, tithes and hereditaments, at Reading, and also all other his real estate wlatsoever and wheresoever in trust, to pay certain annuities and debts as therein mentioned; and from and after payment thereof, and " the expenses of keeping my said estate in repair, and all such costs as my said trustees shall expend or be put unto by means of the trusts hereby reposed in them on trust to pay out of the overplus rents and profits " certain sums for maintenance and jointure, and after payment thereof, then in trust to pay the rents of all his said freehold and leasehold estates unto the said John Blagrave during his life to his own use; and from and 4DEO. M. *0.0. POWYS V. BLAGBA.VE 583 after his decease then to stand seised of the testator's real estate to the use of John Blagrave the younger, eldest son of the said John Blagrave, during his life, with remainder to trustees to preserve contingent remainders, with remainder to his sons successively in tail male, with remainder to Thomas Blagrave, second son of the testator's niece Frances Blagrave, for life, with remainder to trustees to preserve contingent remainders, with remainder to his sons successively in tail male, with remainder to Anthony Blagrave for life, with remainder to trustees to preserve contingent remainders, with remainder to his sons successively in tail male, with divers remainders over. And the will contained the following provisoes : " Provided always, and my will is, that from and after pay-[450]-ment of everything charged on my real and personal estates, the aaid John Blagrave and the said John Simeon, their executors and administrators, shall stand possessed of my undivided moiety of the said leasehold messuages, lands, tithes and estates in Heading aforesaid in trust, out of the rents and profits thereof, to keep such parts thereof as I let at rack rents in good repair; and from time to time to pay the overplus thereof to such and the same person and persons as shall from time to time be entitled to the rents and profits of my real estates: Provided always, and my will is, that it shall not be lawful for my said trustees, or any other person or persons who shall be in possession of my several estates under and by virtue of this my will, to cut any oak timber from off any part of my estates, not even for repairs; but that the person or persons who shall from time to time be in possession of my said estates, or entitled to the rents and profits thereof, shall purchase scantle oak timber for such repairs as oak will be wanting." The testator died in 1787 ; his widow was also now dead. John Blagrave survived his co-trustee, and died in 1827, leaving his son, John Blagrave the younger, his heir at law, who thereupon entered into possession of the devised estates as tenant for life thereof. John Blagrave the younger had no issue. Thomas Blagrave was dead without issue, but Anthony Blagrave was living and had a son named John Henry Blagrave who was the first tenant in tail under the will. By decrees in two other suits, concerning these estates, which came on together on the 28th of April 1847, Lord Justice Knight Bruce, then Vice-Chancellor, granted an injunction, to restrain cutting timber and other waste by John Blagrave the younger on the estates, [451] and one of the questions in those suits being the duration of the trusteeship under the will, His Honour directed a case to be sent to the Court of Exchequer to inquire of what estate the said John Blagrave (who was the heir of the surviving trustee as well as tenant for life as aforesaid) was seised in the freehold hereditaments under the will. The case will be found reported on these points in 1 De G-. & S. 252, and 4 Exch. 550, where the will of the testator is stated at length, and from the latter report it appears that the question sent to the Exchequer was answered by a certificate, that John Blagrave the younger was seised in fee-simple of the said hereditaments. By an order made in the said suits, dated the 13th January 1851, Henry Phillip Powys and Cecil Monro were appointed trustees of the testator's will jointly with John Blagrave the younger, and the said hereditaments were vested in the three for an estate in fee-simple in joint tenancy upon the trusts of the will. Henry Phillip Powys and Cecil Monro now filed the bill in this suit against John Blagrave the younger, Anthony Blagrave and John Henry Blagrave, and others, as Defendants, stating the above facts and stating as follows: " Since they were appointed such co-trustees as aforesaid, the Plaintiffs have ascertained and the fact is, that the said estates have been allowed to fall and are very much out of repair, and that the dilapidations thereon are daily increasing, and the Defendants the said Anthony Blagrave and John Henry Blagrave, as the persons entitled in remainder to the estates, insist that under the trusts of the said will the Plaintiffs and the said Defendant John Blagrave (as such trustees as aforesaid) are bound to put and keep the estates in repair, and have called upon and required, and are still calling and requiring the Plaintiffs accordingly, to put the [452] same estates, or cause the same to be put into, and to keep or cause the same to be kept in a proper state of repair ; and the Plaintiffs have made, or caused to be made, repeated applications to the said Defendant John Blagrave the younger (who is so as aforesaid in possession or receipt of the rents and profits thereof) to comply with such requisition ; but he declines so 584 POWYS V. BLAGRAVE 4 DE 0. M. te Q. M3. to do, insisting that he is under no obligation to comply therewith, and that the Plaintiffs have no right to interfere, inasmuch as he contends that the trusts contained in the said will to keep the said estates in repair ceased upon the death of the said John Blagrave the elder, and that he, the said Defendant John Blagrave the younger, is under no liability whatever in reference to keeping the same estates in repair, except as tenant for life thereof; whereas the Defendants Anthony Blagrave and John Henry Blagrave, as such...
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