Remnant v Hood
| Jurisdiction | England & Wales |
| Judgment Date | 20 November 1860 |
| Date | 20 November 1860 |
| Court | High Court of Chancery |
English Reports Citation: 45 E.R. 674
BEFORE THE LORDS JUSTICES.
S. C. 30 L. J. Ch. 71; 6 Jur. (N. S.), 1173; 3 L. T. 485. See Wood v. Wood, 1867, L. R. 4 Eq. 53; Henty v. Wrey, 1882, 19 Ch. D. 503; 21 Ch. D. 357.
[396] eemnant v. hood. Before the Lords Justices. Nov. 5, 6, 20, I860. [S. C. 30 L. J. Ch. 71; 6 Jur. (N. S.), 1173 ; 3 L. T. 485. See Wood v. Wood, 1867, L. E. 4 Eq. 53 ; Henty v. Wrey, 1882, 19 Ch. D. 503; 21 Ch. D. 357.] A testator directed that an estate should be settled on S. T. for life, with remainder to his sons successively in tail, remainder to his daughters successively in tail, and that the settlement should contain a power to S. T. to charge the estate with any sum not exceeeing 2000 for the portions of his younger children. S. T. by deed charged the estate with the sum of 2000 for the portions of his younger children, to be raised within three months after his decease, and to be equally divided between them. There were five younger children, daughters, two of whom died in 2DBQ.F. ft J. SOT. REMNANT V. HOOD 675 S. T.'s lifetime minors and unmarried, another attained twenty-one and died in his lifetime, and two attained twenty-one and survived him. Held, that the representatives of the daughter who attained twenty-one and died in the father's lifetime were entitled to a share in the fund. Whether the representatives of the daughters who died minors in the father's lifetime were also entitled to shares, qiuere. Per the Lord Justice Turner, sernble, they were not. On the death of the father a moiety of the .3000 was paid to one of the two surviving daughters, and interest on the other moiety was paid to the other surviving daughter for more than thirty years. Held, that this did not estop the owners of the estate from denying her right to receive so much as a moiety of thu capital This was an appeal by the Plaintiff from a decree of the Master of the Bolls, the question in dispute being, whether a child who attained twenty-one and married, but died in the lifetime of her parents, had attained an indefeasibly vested interest in a sum raiaable for portions. Sir Nathaniel Thorold, by will dated the 23d of March 17G3, devised certain real estates to trustees upon trust to settle and assure them by such deeds as counsel should'advise to the use of Samuel Canale and his assigns during his life, with remainder to trustees to preserve contingent remainders, with remainder to the use of the first and other sous of Samuel Canale successively in tail male, with remainder to his daughters successively in tail male, with divers remainders over. The will contained the following direction :-" Also my will is and I do hereby direct that in such settlement shall be inserted and contained proper powers enabling them the said Samuel Oanale, George Thorold, &c., as [397] and when they shall respectively come into and be in possession of my said manors, messuages, lands, tenements and hereditaments, to grant such leases thereof as have been usually made and granted, and also to limit any of my said messuages, lands, tenements and hereditaments whereof he shall then be in the actual possession, not exceeding one-third part thereof, or any rent charge not exceeding the clear yearly rents of one-third part thereof, in jointure to their respective wives, with proper powers of distress and entry in case of non-payment thereof, and also a term of years for better securing such rent charge. And likewise a power enabling them respectively so in possession to charge my said estates with any sum not exceeding 2000 for the portion of his and their younger children respectively, and all such clauses as are usual for the safety and indemnity of the trustees." Th& testator died in 1764. Samuel Canale, in compliance with a direction in the will, obtained an Act of Parliament naturalizing him and enabling him to assume the name and arms of Thorold. He entered into possession of the devised estates, but no settlement of them was ever made in pursuance of the directions in the will. In 1771 Samuel Thorold intermarried with Aim Anderson, and by an indenture of settlement, dated the 29th of August 1771, made previous to and in contemplation of the marriage, Samuel Thorold, in exercise of the power of jointuring given to him by the will of Sir Nathaniel Thorold, appointed to the wife for her life certain parts of the estate by way of jointure, and covenanted to make, in certain events, a further provision for her by way of jointure. And in exercise of the power of charging portions, Samuel Thorold charged all the testator's estates of which he was in actual possession [398] (subject to the jointure) "with the sum of 2000 for the portion or portions of the daughter or daughters, younger child or younger children of the said Samuel Thorold on the body of the said Ann Anderson lawfully to be begotten, to be raised and levied within three calendar months after the decease of the said Samuel Thorold by such ways and means as shall be expedient in that behalf, and to be forthwith paid and payable in manner following (that is to say), if there shall be an eldest or only son and one such daughter or younger child, the same to be raised and paid for the portion of such only daughter or younger child ; and if there shall be two or more such daughters or younger children, then the said sum of 2000 to be equally divided between them, share and share alike, for the portion and portions of all and every such daughters or younger children." There was issue of the marriage a son and six daughters. 676 REMNANT V. HOOD 2 DB 8. F. 4 J, 399. The son died in the lifetime of Samuel Thorold his father, an infant and without having been married, and in consequence of his death the eldest daughter Ann Eliza, upon the death of the father in 1820, became tenant in tail of the devised estates under the will. In 18212 she re-settled them, reducing herself to an estate for life, and died m 1848. Two others of the daughters died in the lifetime of Samuel Thorold their father, infants and without having been married. Theodosia, another of the daughters, married Leonard Gibbons, attained twenty-one, and afterwards died in the lifetime of Samuel Thorold her father. The other two daughters married, attained twenty-one, [399] and survived their father Samuel Thorold, who died on 19th of January 1820. Sometime after Samuel Thorold's decease, a moiety of the 2000 was paid to one of the surviving daughters, or to her husband in her right, as her share of the fund settled upon the younger children. The sum of 50 was also paid to the other surviving daughter, Mrs. Moye, or to her husband in her right, in respect of her share of the settled fund, and she, or her husband in her right, received interest on 950 as the residue of her share during the remainder of her life. She died on the 16th of September 1853. The Plaintiff, who had become entitled by assignment to the residue of Mrs. Moye's share of the settled fund, after deducting the 50 paid on account, filed the bill in this cause in April 1857, to have that residue raised and paid to him, and claimed to be entitled to 950 in respect of this residue, insisting that the fund became vested in the two daughters who survived their father Samuel Thorold. The Defendants, who were interested in the estates subject to the charge, on the other hand insisted that the daughter who married, attained twenty-one, and died in the lifetime of the father, had a vested interest in the fund, and that the Plaintiff therefore was entitled only to one-third of the fund, after deducting the 50 paid on account. The title of the Plaintiff' was at first wholly denied, but on the llth of March 1858, nearly a year after the institution of the suit, the persons acting on behalf of the infant tenant in tail of the estate subject to the charge offered to pay the Plaintiff one-third of the 2000 (de-[400]-ducting the 50 paid on account) and to pay the costs of all parties to the suit up to that time. The Plaintiff declined this offer. The Master of the Rolls, on the 28th of June 1859, decided (27 Beav. 74) that the Plaintiff was entitled only to one-third of the 2000, and gave him his costs of suit up to the llth of March 1858, but ordered him to pay the subsequent costs of the suit, on the ground of his having proceeded after an offer of all he was entitled to. His Honour allowed one set of costs in respect of each distinct interest in the estate. Thus, for instance, only one set was allowed in respect of a life-estate which was vested in John Hood, one of the Defendants, subject to two mortgages, one vested in the Clerical, Medical and General Life Assurance Society and the Defendants Hargrave and Hue their trustees,, and the other in the Defendant Harriet Margaret Cookson, and the sum allowed on taxation in respect of these costs was to be applied in the first place in paying the costs of the assurance society and their trustees, as being the first incumbrancers. The Plaintiff appealed. Mr. Roundell Palmer and Mr. F. T. White, for the Appellant. Apart from the question on the construction of the instruments, we contend that the payment of interest to Mrs. Moye for thirty-three years on the footing that she was entitled to a moiety ind not merely to a third, establishes her title to the larger share as against the estates paying it; Lord Teynham v. Web\ (2 Yes. sen. 198); Clifton, v. C'ockhurn (3 M. & K. 70); Pickering v. Pickering (4 M. & C. 289, 304). If the case be one to which the Statute of Limitations is applicable our title is made complete by the lapse of time. [401] Now, as to the construction of the instruments. The whole gift is woven up with the direction to raise at the death of the father, and no time personal to the legatees is mentioned, which distinguishes this case from an important class of cases in which two periods are named, one of which is personal to the legatee. The cases on the subject are summed up...
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