Rancliffe (Lord), and Others, - Appellants; Parkyns (Lady)(Widow) of Sir Thomas Parkyns, and Others, - Respondents
| Jurisdiction | UK Non-devolved |
| Judgment Date | 04 March 1818 |
| Date | 04 March 1818 |
| Court | Privy Council |
English Reports Citation: 3 E.R. 1428
APPEAL FROM THE COURT OF CHANCERY.
Mews' Dig. v. 1532,1562; xv. 656. Considered in Minchin v. Gabbett, [1896] 1 I. R. 1; Wintour v. Clifton, 1856, 21 Beav. 447, at p. 454; and see In re Vardon's Trusts, 1884, 28 Ch. D. 124, at p. 130.
Father seized in fee of a manor and lands, etc. in E.; by settlement on his second marriage, limits estates tail to the sons of the marriage in his lands, etc. in E. without mentioning the manor, the ultimate remainder in the lands to himself and his heirs. The father having still the manor of E. and the reversion in fee of the lands, etc. and having two sons of the marriage, afterwards makes a will by which he devises all his manor and lands, etc. in B. and E. to his sons for life, with remainders to their sons in. tail. Expressions in the will from which, if there had been nothing to oppose that construction, it might be reasonably conjectured or concluded that the testator intended to devise immediate estates for life to his sons, not only in the manor which was his own, but in the lands, etc. in E. in which they had estates tail under the settlement, and thereby to raise a case of election. But in the will he expressly ratifies and confirms the settlement, and every thing therein contained. Held by the Court of Chancery that this was not a case of election, and the judgment affirmed in Dom. Proc,
Lord Eldon, (C.) observing that it is difficult in any case to apply the doctrine of election where the testator has a present interest in the estate devised, although it may not be entirely his own; and here he had manor, and the reversion in fee of the lands; and expressly confirmed the settlement in all its parts; and you cannot, as against that express declaration of intention to the contrary, take it by conjecture, call it demonstration plain, necessary implication, or what you will, but still only conjecture, that he does not mean to confirm.
A. by will dated 1735, devises all his real estates in these general words, to his daughter I. for life, remainder to [150] her first and other sons in fee. Marriage of I. and B. (B. having no notice of the will) and petition in 1746 to parliament for an act to enable them to make a settlement, they being minors, in which petition I. is represented as entitled in fee to certain estates which had belonged to her father A.; and act passed and settlement made on that ground. B. by settlement made in 1776, gives considerable interests to C. his eldest son by his wife I. which C. could not otherwise have in his father's life-time. Will of A. of the existence of which the parties had been before ignorant, discovered in 1799; bill in 1800 by C. claiming the estates under the will of A. his grandfather, as eldest son of I. dismissed in Chancery without costs and the decree affirmed under the circumstances; it being uncertain whether the estates in question passed under the general words in the will of A. and whether the representation to parliament might not have been correct; B. honestly believing that he was a purchaser for val. con.; so long a time having elapsed, etc.
[149] ENGLAND. APPEAL FROM THE COURT OF CHANCERY. eancliffe (lord), and Others,-Appellants; parkyns (lady), Widow of sir thomas parkyns, and Others,--Respondents [Feb. 16, 18, 20, 23, 25; March. 2, 4, 1818]. [Mews' Dig. v. 1532,1562 ; xv. 656. Considered in Minchin v. Gabbett, [1896] 1 I. R. 1 ; Wintour v. Clifton, 1856, 21 Beav. 447, at p. 454; and see In re Vardon's Trusts, 1884, 28 Ch. D. 124, at p. 130.] [Father seized in fee of a manor and lands, etc. in E.; by settlement on his second marriage, limits estates tail to the sons of the marriage in his lands, etc. in E. without mentioning the manor, the ultimate remainder in the lands to himself and his heirs. The father having still the manor of E. and the reversion in fee of the lands, etc. and having two sons of the marriage, afterwards makes a will by which he devises all his manor and lands, etc. in B. and E. to his sons for life, with remainders to their sons in. tail. Expressions in the will from which, if there had been nothing to oppose that construction, it might be reasonably conjectured or concluded that the testator intended to devise immediate estates for life to his sons, not only in the manor which was his own, but in the lands, etc. in E. in which they had estates tail under the settlement, and thereby to raise a case of election. But in the will he expressly ratifies and confirms the settlement, and every thing therein contained. Held by the Court of Chancery that this was not a case of election, and the judgment affirmed in Dom. Proc,] [Lord Eldon, (C.) observing that it is difficult in any case to apply the doctrine of election where the testator has a present interest in the estate devised, although it may not be entirely his own; and here he had manor, and the reversion in fee of the lands ; and expressly confirmed the settlement in all its parts; and you cannot, as against that express declaration of intention to the contrary, take it by conjecture, call it demonstration plain, necessary implication, or what you will, but still only conjecture, that he does not mean to confirm.] 1428 RANCLIFFE (LORD) V. PARKYNS [1818] VI DOW. [A. by will dated 1735, devises all his real estates in these general words, to his daughter I. for life, remainder to [150] her first and other sons in fee. Marriage of I. and B. (B. having no notice of the will) and petition in 1746 to parliament for an act to enable them to make a settlement, they being minors, in which petition I. is represented as entitled in fee to certain estates which had belonged to her father A.; and act passed and settlement made on that ground. B. by settlement made in 1776, gives considerable interests to C. his eldest son by his wife I. which C. could not otherwise have in his father's life-time. Will of A. of the existence of which the parties had been before ignorant, discovered in 1799 ; bill in 1800 by C. claiming the estates under the will of A. his grandfather, as eldest son of I. dismissed in Chancery without costs and the decree affirmed under the circumstances ; it being uncertain whether the estates in question passed under the general words in the will of A. and whether the representation to parliament might not have been correct; B. honestly believing that he was a purchaser for val. con.; so long a time having elapsed, etc.] The case made by the bill as amended in 1800, which will be found more particularly stated in the Lord Chancellor's judgment, was generally and in substance as follows : By articles made in 1707 on the marriage of Sampson Parkyns, eldest son of Sir Thomas Parkyns, and Alice Middlemore, Sir Thomas and Sampson covenanted to settle certain premises in Great or East Leake, and Thorpe in Glebis or in the Clotts, in the County of Nottingham, to the use of Sampson for life, then to the use of Alice for life, remainder to the use of the first and other sons of the marriage in tail male, remainder to the right heirs of Sir Thomas. The marriage took place: Sampson died leaving a son Thomas; and afterwards, in 1716, a settlement was made in .pursuance of the articles, conveying to Thomas an estate [151] in tail male in the premises. In 1730 Thomas suffered a recovery of the manor, mansion-house, and estate, in Leake, and of the estate in Thorpe. In 1731, Thomas, who had married Elizabeth Woodroffe, and his wife mortgaged the estates both in Leake and Thorpe to Cornelius Farr, for 2500; and, in 1735, for 400 more, making in all 2900; and in the same year, 1731, Thomas, by articles, in consideration of his wife Elizabeth having joined him in a fine to secure the mortgages, and for other considerations, covenanted to settle the estates to the uses therein mentioned, and particularly to give a portion of 4000 to the daughter or daughters of the marriage charged on the Thorpe estate. In 1732, a settlement was made in pursuance of the articles by which the manor, mansion-house, and estate in Leake, and the estate in Thorpe, were settled, subject to the mortgage, to the use of Thomas Parkyns for life, remainder to the use of his wife Elizabeth for life ; and then, as to the manor and premises in Leake, remainder to their first and other sons in tail male, remainder to trustees for a term of 500 years, to pay thereout 1500 to Harriet Parkyns, afterwards the wife of Richard Farrer, only sister of Thomas, remainder to Thomas in fee : and, as to the Thorpe estate, remainder to trustees for a term of 1000 years to raise thereout 4000 for a daughter's portion if only one, if two or more 5000 for their portions, remainder to Thomas in fee: and there was a proviso that, in case Thomas died without discharging the mortgage, or leaving at his death sufficient assets to discharge it; the 1500 for [152] Harriet was not to be raised; and in case Thomas in his life-time should advance the sum, or any part of it, that should be a satisfaction in whole or pro tanto. Thomas and Elizabeth had only one child, a daughter, Jane, the mother of the Plaintiff, the late Lord Rancliffe; and Thomas being, as the bill represented, seised in fee of the reversion of the estates in Leake and Thorpe, and of an estate in fee in a mansion-house and lands in Leake, in a manor, mansion-house, and lands in Sutton Bonnington, and estates in Buckminster and Sawston, and in a new river share, made a will dated 9th May, 1735, directing his estates in Buckminster and Sawston to be sold by his executrix for payment of his debts, devising a small estate to Daniel Woodroffe, a brother of his wife; and then devising " all his other real estates not therein-before mentioned," to his wife Elizabeth for life, remainder to Francis Lewis, in trust for his daughter, Jane, for life; and then for her first and other sons and their...
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