Re Nelson. Norris v Nelson (Note)
| Jurisdiction | England & Wales |
| Date | 1928 |
| Year | 1928 |
| Court | Court of Appeal |
APPEAL by the defendants (the wife and daughter of the son of the testator) from a judgment of Astbury J.
The facts sufficiently appear from the following judgments of the Court (Swinfen Eady M.R., Duke L.J. and Eve J.), which are copied from the transcript of the shorthand note.
G. H. Stutfield for the appellants.
W. R. Sheldon for the trustees of the will.
Hon. Frank Russell K.C. and C. E. Bovill for other respondents.
SWINFEN EADY M.R. (without calling upon counsel for the respondents). This is an appeal from an order of Astbury J., and the appellants are the wife and daughter of the testator's son, Arthur Hector Nelson, the point raised by the appeal being whether the trustees are now entitled to withhold the income of one-third from certain mortgagees, who have given notice requiring payment of the income to them, and in lieu of paying it to the mortgagees, apply it for the benefit of the mortgagors, the son and his wife and daughter.
Now the testator, by his will, after the death of his wife, gave one-third of the income of his residuary estate to his trustees on trust during the lifetime of his son, Arthur Hector Nelson, “to apply the income thereof for the benefit of himself and his wife and child or children or of any of such persons to the exclusion of the others or other of them as my trustees shall think fit.” What has happened is that there is one child of the marriage who has attained twenty-one, and the son, Arthur Hector Nelson, his wife, Mrs. Nelson, and the daughter who has attained twenty-one, who are the only members of the class living, have assigned by way of mortgage all their share and interest under the will, and the mortgagees now ask to have the income paid to them. It is argued on behalf of the wife and daughter, that is to say on behalf of two of the mortgagors, that, notwithstanding their mortgage, the income ought now to be withheld from the mortgagees and applied by the trustees for their benefit. In my opinion, that contention cannot prevail. It will be observed that the assignment by way of mortgage is by all the beneficiaries collectively — the son, the wife and the daughter are the only beneficiaries in esse — and they have all assigned their shares by way of mortgage, and they are the only persons entitled to the benefit of the trust.
The question raised on this appeal is unlike the...
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