Re Champion. Dudley v Champion

JurisdictionEngland & Wales
Date1893
Year1893
CourtCourt of Appeal
[COURT OF APPEAL] In re CHAMPION. DUDLEY v. CHAMPION. [1891 C. 677.] 1892 July 13, 14. 1892 Nov. 15. NORTH, J. LINDLEY, BOWEN, and A. L. SMITH, L.JJ.

Will - Construction - Devise of House and Land “now in my own occupation” - Land subsequently acquired by Testator and, occupied by him with the House - Subsequent Codicil confirming Will - Wills Act (1 Vict. c. 26), s. 24 [Revised Ed. Statutes, vol. viii., p. 34] - Mortgage of subsequently-acquired Land by Testator's Heir - Sale by Mortgagee - Right of Beneficiaries under Will to follow Purchase-money.

A testator by his will made in April, 1873, devised a freehold cottage with all the land thereto belonging, described as “now in my own occupation,” to two trustees upon trust for his wife during her life and after her death for his children, who were five in number, in equal shares. In September, 1873, the testator purchased two fields adjoining the cottage and occupied them with the cottage till his death. In 1877 he made a codicil by which he substituted his wife and his two sons as trustees and executors of his will, and confirmed his will in other respects. The testator died soon after the execution of the codicil, and the will and codicil were proved by his widow and one of his sons, who was his heir-at-law. In 1885 a deed was executed by the widow and the heir-at-law by which, in consideration of £75 expressed to have been advanced to the widow and the heir-at-law, the heir-at-law “as beneficial owner” conveyed the two fields purchased by the testator in 1873 to Chapman, a solicitor, in fee by way of mortgage. Chapman had notice of the contents of the will and codicil, but was advised that the two fields did not pass by them, but descended to the heir-at-law. In 1890 Chapman, under his power of sale as mortgagee, sold the two fields for £300 freed from the mortgage. An action having been brought by the testator's three daughters against the heir-at-law and Chapman:—

Held (affirming the decision of North, J.) (1.), that on the true construction of the will and codicil the two fields passed to the trustees with the cottage; (2.) that the Plaintiffs had a right to adopt the sale and to follow the purchase-money in the hands of Chapman; but that Chapman was entitled to retain his costs of the sale as mortgagee, and any part of the mortgage money which he could shew to have been advanced for the purposes of the trust estate.

CHARLES CHAMPION, by his will, dated the 9th of April, 1873, in which he described himself as “of the Orchard Cottage, Holmwood, in the parish of Dorking,” after directing the payment of his debts, funeral, and other expenses, gave and devised “the whole of my said freehold Orchard Cottage, with all the land, outbuildings, and appurtenances thereto belonging, situate, lying, and being in the said parish of Dorking, and now in my own occupation,” to Frederick Child and H. E. Turner, his executors and trustees thereinafter named, to have and to hold the said freehold cottage and premises, upon trust to permit his wife, Mary Champion, to have full possession, management, and control “of the whole of my said freehold cottage, land, outbuildings, and appurtenances thereto belonging,” in any way or manner she might think proper during the time of her natural life. And from and after her decease the testator did thereby empower and direct his said executors or executor for the time then being to sell the said cottage and premises as therein mentioned, and that the money arising from the said sale, after deducting all legal and necessary expenses, should be applied in aid of his residuary estate as he should thereinafter direct. He also gave and bequeathed to his said executors and trustees the whole of his personal estate and effects, wheresoever and whatsoever, which he should die possessed of or entitled to, or which should or might in any way be due, owing, or belonging to him at the time of his decease, upon trust that his executors or executor for the time then being should permit his said wife to select any part or the whole of his household furniture and other effects for her use and benefit during her life, and the remaining part thereof (if any) sell and convert into money, and collect, get in, and receive all such part of his personal estate as did not consist of money and securities for money, and invest the same as therein mentioned, and the interest and profits arising therefrom pay over to his said wife from time to time as the same should become due, so that she might have the sole and full benefit of the profits and interest arising “from the whole of both my real and personal estate” during her life. And after her decease he thereby empowered and directed his said executors or executor for the time being to sell and convert all that part of his personal estate and effects selected and reserved for the use and benefit of his said wife in her lifetime, and collect and get in all moneys, either placed out on security or any money due to his estate, “as also the money arising from the sale of my real estate before named”; and, after deducting all reasonable and necessary expenses, to divide the whole residue between and among all his children in equal shares and proportions, share and share alike to whom, or to their respective legal representatives, he gave and bequeathed the same as their own proper moneys for ever. And the testator thereby appointed the said Frederick Child and H. E. Turner to be joint executors and trustees of his will.

On the 27th of September, 1873, the testator purchased the fee simple of two fields adjoining the Orchard Cottage mentioned in his will; and thenceforth during the remainder of his life he occupied those two fields as appurtenant to the Orchard Cottage.

On the 22nd of October, 1877, the testator made a codicil to his will in the following terms: “I, Charles Champion, of the Orchard Cottage, Holmwood, in the parish of Dorking, declare this to be a codicil to my last will, dated the 9th of April, 1873. Whereas I have by my said will devised and bequeathed my real and personal estate, and given certain powers, to Frederick Child and H. E. Turner as trustees, and appointed them executors; now I revoke my said will, so far as the said Frederick Child and H. E. Turner are objects thereof, and substitute my wife, Mary Champion, and my sons, Caleb Champion and Clement Champion, in their place. And I declare that my said will shall take effect in the same manner as if the names of the said Mary Champion, Caleb Champion, and Clement Champion had been originally inserted throughout the said will instead of the names of Frederick Child and H. E. Turner. And I confirm my said will in other respects.”

The testator died on the 27th of October, 1877, and his will and codicil were, on the 27th of December, 1877, proved by Mary Champion and Caleb Champion, power being reserved to make a grant of probate to Clement Champion.

Up to the date of the issue of the writ in the action Clement Champion had not acted in the trusts of the will.

The testator left surviving him his widow, Mary Champion, and five children — viz., the two sons, Caleb Champion and Clement Champion (of whom the former was his heir-at-law), and three daughters, all of whom were married when this action was commenced. They and their respective husbands were the Plaintiffs.

The testator had in his lifetime mortgaged Orchard Cottage, and the land originally belonging thereto, to a Mr. Benecke.

On the 14th of July, 1885, a deed was executed between Caleb

Champion of the first part, Mary Champion of the second part, and J. J. Chapman of the third part. This deed contained a recital that Chapman had already advanced to Caleb Champion and Mary Champion £75, and that it had been agreed at the time the advance was made that the sum, with interest, should be secured to him in manner thereinafter appearing. And it was witnessed that, in pursuance of the agreement and in consideration of the £75, Caleb Champion and Mary Champion thereby covenanted with Chapman to pay the £75 on the 14th of January, 1886, with interest in the meantime, and also so long after that time as the £75, or any part thereof, should be owing, to pay interest thereon half-yearly. And it was further witnessed that for the consideration aforesaid Caleb Champion, as beneficial owner, did thereby convey to Chapman the two pieces of land at Holmwood, which the testator had purchased in September, 1873, to hold to Chapman in fee simple, subject to a proviso for redemption on payment of the £75, with interest, on the 14th of January, 1886.

On a plan contained in a prior deed these two pieces of land were coloured pink, and in the same plan the Orchard Cottage and the land originally attached thereto were coloured...

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