Robert Barker against Giles and Smith
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1795 |
| Date | 01 January 1795 |
| Court | High Court |
English Reports Citation: 88 E.R. 374
IN THE COURTS OF KING'S BENCH, CHANCERY, COMMOM PLEAS, AND EXCHEQUER.
S. C. affirmed, 3 Bro. P. C. 104 (2nd ed.). Applied, Doe d. Littlewood v. Green, 1838, 4 M. & W. 245.
[157] case 72. robert barker against giles and smith. Friday, 4th June. [S. C. affirmed, 3 Bro. P. C. 104 (2nd ed.). Applied, Doe d. Littlewood v. Green, 1838, 4 M. & W. 245.] A devise of " all my real and personal estate to A. in trust to pay debts and legacies, the residue to be laid out in lands to the use of B. and C. and the survivor of them, their heirs and assigns, for ever, equally to be divided between them, share and share alike," creates a joint-tenancy.-S. C. Gas. in. Ch. 15. S. C. 2 Eq. Ab. 536. S. C. 2 Peer Wms. 280. S. C. 3 Bro. P. C. 297. This was a bill brought by a surviving legatee to have an execution of a trust. The case was as follows : Robert Barker, seised in fee of the lands in question, by will devised " all his real and personal estate to, &c. in trust to sell the same, and thereout to pay his debts and legacies ; and the residue (if the same amounted to no more than four hundred pounds) to be laid out in lands to the use of A. for life, remainder to Robert Barker his nephew in fee ; and the surplus above four hundred pounds to be also laid out in lands to the use of the testator's nephews Jerom Barker and Robert Barker, and the survivors and survivor of them, their heirs and assigns for ever, equally to be divided between them, share and share alike." This will was made in the year 1716, and about four years afterwards the testator died, and left a considerable personal estate sufficient to pay all his debts and legacies ; but Jerom Barker, one of the legatees, died in the life-time of the testator. And now the plaintiff, as surviving legatee, exhibited this bill against the executors and heir at law of his uncle Robert, to have an account of the real and personal estate of the said testator, and to have conveyance of the real estate. The trustees by their answer submitted to account, and to execute the trust out of the residue of the estate, after debts and legacies paid. (c) Post 167, 181. 10 Mod. 230. 1 Bro. P. C. 450.-See also Davers v. Dewes, .S Peer. Wms. 46. Carrick v. Erringlon, 3 Peer. Wms. 362. (d) 3 Peer. Wms. 49. 9 MOD. 158. EASTER TERM, 11 GEO. 1. IN CHANCERY 375 The question was, how this trust should be executed; for that the heir at law to the testator claimed a moiety of the estate by descent; and this depending upon the construction of this will, what estate the legatees took by this devise; for if it was a tenancy in common, and one...
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