Ripley v Waterworth. [HIGH COURT of CHANCERY]
| Jurisdiction | England & Wales |
| Judgment Date | 26 July 1802 |
| Date | 26 July 1802 |
| Court | High Court of Chancery |
English Reports Citation: 32 E.R. 172
HIGH COURT OF CHANCERY
See Franklin v. Bank of England, 1826, 1 Russ. 589; Wellman v. Bowring, 1830, 3 Sim. 335; Randall v. Randall, 1835, 7 Sim. 279; Holloway v. Clarkson, 1843, 2 Hare, 524; Hardey v. Hawkshaw, 1850, 12 Beav. 555; Chatfield v. Berchtoldt, 1872, L. R. 7 Ch. 197; Davies v. Games, 1879, 12 Ch. D. 817; Davis v. Davis, [1894] 1 Ch. 403.
t,q ripley v. waterworth. July 22d, ZGth, 1802. [See Franklin v. Bank of England, 1826, 1 Ruas. 589 ; Wellman v. Bowring, 1830, 3 Sim. 335 ; Randall v. Randall, 1835, 7 Sim. 279 ; Holloway v. Clarkson, 1843, 2 Hare, 524; Hardey v. Hawkshaw, 1850, 12 Beav. 555; Chatfield v. Berchtoldt, 1872, L. R. 7 Ch. 197; Davies v. Games, 1879, 12 Oh. D. 817; Davis v. Davis, [1894] 1 Ch. 403.] Upon the construction of a deed for the purpose of a partnership real estate held to be converted out and out, into personal. The interest in an estate pur auter vie to a man, his executors, administrators, and assigns, beyond the debts, belongs to those, who are entitled to the personal estate. The executor was therefore held a trustee for the residuary legatees. The usual decree was made in this cause for an account of the personal estate of the testator William Marsh Mears, received by the Defendant, the executor, &c.; and inquiries were directed, among others, what interest the testator had in a freehold estate and sugar-houses, and in leasehold estates, in the pleadings mentioned ; and what pews or seats he had in St. Thomas's church or chapel ; and whether they were to be considered as real or personal estate. 7 VES. JUN. 426. RIPLEY V. WATERWORTH 173 The Master by his Report as to the freehold estate and sugar-houses stated, that the testator was seised in fee of three undivided eighth parts of the said estate and sugar-houses ; and that by indentures of lease and release of the llth and 12th of May 1790, the same with the remaining five-eighth parts were conveyed to the Defendants William Tennant and Thomas Holland, their heirs and assigns for ever, to the use of such person or persons and for such estate or estates as Stephen Waterworth, the testator William Marsh Hears, and Margaret Woods, should together appoint and in the mean time [426] as to the testator's three-eighth parts to the use of the testator for the purpose of carrying on the trade in partnership with Waterworth and Margaret Woods, or with such other persons as they should agree to admit as partners ; and, in default of such appointment, upon trust that Tennant and Holland, or the survivor of them, or the executors or administrators of such survivor, should upon the decease of the shortest liver of Waterworth, Woods, and the testator, or upon the dissolution or cessation of such partnership by any one or more of the said partners, sell the whole of the said sugar-houses and premises, and apply the monies arising from such sale (after paying off the ineumbrances thereon, if any) in discharging such of the joint debts of the partnership as the joint stock of such partnership might fall short of paying and pay the residue between the said three partners in the proportions following : to the testator, his executors, administrators, or assigns, three-eighth parts ; and the remaining five-eighth parts between the other two partners ; and the indenture contained a proviso, that in case there should be no such appointment, as aforesaid, then upon the decease of the shortest liver of the said three partners the two survivors if they should think proper, or such survivor as might think proper, might have and take the part or share of such shortest liver as well of the said sugar-house and premises as of the implements, utensils, and fixtures, therein described at the prices following : viz. of such buildings, additions, and improvements, as may hereafter be erected or made thereon, at such price as may be laid out in building or making the same ; and of the sugar-houses and premises as then enjoyed, with the implements, &c., at the rate of 3200 for the whole ; upon condition, that such price should be paid to Tennant and Holland within six months after the decease of such shortest liver. [427] The Report farther stated, that by indentures of lease and release, dated the 1st and 2d of February 1792, other messuages and buildings adjoining the sugar-houses were conveyed to Tennant and Holland and their heirs to the same uses. The Master did not find, that any appointment was made by the three partners; and after the testator's death, which happened on the llth of October 1792, Waterworth gave notice according to the proviso, that he elected to become the purchaser of the testator's three-eighth parts of the premises ; which he purchased accordingly. The Master stated his opinion upon the circumstances, that the testator had a chattel interest in the said freehold estate and sugar-houses. The Report also stated, that Thomas Mears, the testator's late father, was at his death possessed of a lease of four houses with warehouses and other buildings and a piece of ground at Copperas Hill, of another lease of three houses and a warehouse in Paradise Street and Manesty Lane, and another lease of houses and parcels of land in Park Lane and Frederick Street, all in Liverpool, to Thomas Mears, during the lives of three persons and the life of the survivor, and after the decease of the survivor to Thomas Mears, his executors, administrators, and assigns, during the farther term of twenty-one years. Thomas Mears died about December 1773, intestate ; leaving the testator, and Mary Ripley deceased, the late wife of the Plaintiff, and the Defendant Catharine Mercer, his only children and next of kin. The testator took out administration to his father. In 1776 the testator agreed with the Corporation of Liverpool for a renewal of the lease of the premises at Copperas Hill- and accordingly by indentures, dated the 18th of January 177(i, the Corporation in consideration of 40 demised in the testator, as sole administrator of his father, his executors, administrators, and assigns, those premises for three [428] lives and the life of the survivor, and after the death of the survivor to the testator, his executors, administrators, and assigns, for the further term of twenty-one years, at the yearly rent of 12s. (id. The Report farther stated, that the testator purchased the interest of Mercer and Ripley and their wives in the premises at Copperas Hill; who by indentures, 174 EIPLEY V. WATERWORTH 7 YES. JTIN. 429. dated the 1st of May 1788, assigned, conveyed, and released, all their interest respectively, to hold to the testator, his executors, administrators, and assigns, in such manner as Mercer and Ripley in right of their wives were entitled. The testator having also in 1784 agreed for a renewal of the premises in Paradise Street and Manesty Lane, upon a fine of 67, by indentures of lease and release, dated the 19th of January 1784, the Corporation made a similar demise to him of those premises; and he also purchased the interests of his sisters in those premises; and in 1788 in the same manner renewed the lease, as to those premises. By indentures, dated the 31st of March 1791, the Corporation of Liverpool made a similar lease of a piece of land, called the Sandhole with other premises in Liverpool to the three partners, as tenants in common ; which premises were hy a memorandum indorsed to be held as to three-eighths by the testator, three-eighths by Waterhouse, and two-eighths by Margaret Woods. The Master then having stated his approbation of contracts for the sale of part of the property, certified his opinion, that the testator had a chattel interest in the said several leasehold estates. The Eeport also stated, that the testator had two seats in St. Thomas's Church in Liverpool, one of which descended to him as heir-at-law, of his maternal grandfather, who was one of the original proprietors of the church, and as such had the seat allotted to him ; and [429] the other descended to the testator as heir-at-law of his father ; who purchased it; and the Master stated, that both the said seats were to be considered as freehold estate. Exceptions were taken to the Report by the Defendants Mercer and his wife, and William Ripley, an infant, stating as to the said freehold estate and sugar-houses, that the Master ought to have certified, that the testator had a fee-simple estate ; and that the money received by the sale belonged to his heir-at-law ; and, as to the leasehold estates for lives, that the Master ought to have certified, that the testator had a real or descendible estate and interest of freehold in the said several leasehold estates ; and that the same belonged to, or descended upon, the heir-at-law. The residuary legatees, the Defendants Stephen and Frances Waterworth, contended, that the leasehold estates, having passed by the will, which was not attested by three witnesses, were to be applied, as personal estate disposed of by the residuary clause, and not as upon an intestacy. In that point they were opposed by the next of kin. Mr. Mansfield and Mr. R. Smith, Mr. Richards and Mr. Holist, the Solicitor General [Sutton], and Mr. Bell, for different parties in support of the Exceptions. The question upon the first exception is, whether this is a trust of real estate for the heir-at-law ; or whether by the deeds, that were executed, it was converted into personal estate. It is to be considered real estate at the death of the testator, upon this short principle ; that what was not at that time absolutely converted either in Law or Equity, but merely to answer a particular purpose, for which a conveyance was to be made, remains real estate. [430] Fr any particular purpose, to which the produce is destined, it must of course be personal estate : but as between the representatives it remains real. This case, though the question arises upon deeds, is like the late cases upon...
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...(1835) 7 Sim 271 at 287–288 [ 58 ER 841 at 847]; Cookson v Cookson (1837) 8 Sim 529 at 548 [ 59 ER 210 at 217]. 51 Ripley v Waterworth (1802) 7 Ves Jun 425 at 451–452 [ 32 ER 172 at 182–183]; Townsend v Devaynes (1808) in Montagu, A Digest of The Law of Partnership (1815), vol 1, appendix a......