Robinson v Lowater
| Jurisdiction | England & Wales |
| Judgment Date | 27 April 1854 |
| Date | 27 April 1854 |
| Court | High Court of Chancery |
English Reports Citation: 43 E.R. 875
BEFORE THE LORDS JUSTICES.
S. C. 17 Beav. 592; 23 L. J. Ch. 641; 18 Jur. 363. Questioned, Cook v. Dawson, 1861, 30 L. J. Ch. 360; Corser v. Cartwright, 1875, L. R. 7 H. L. 741.
[272] robinson v. lowatee. Before the Lords Justices. A'pril 22, 25, 27, 1854. [S. C. 17 Beav. 592 ; 23 L. J. Ch. 641 ; 18 Jur. 363. Questioned, Cook v. Dawso-n, 1861, 30 L. J. Ch. 360; Carter v. Cartwright, 1875, L. E. 7 H. L. 741.] A testator devised lands for life, with contingent remainders over, and then devised other lands to another tenant for life, with contingent remainders over, and charged the latter lands with the payment of a mortgage on the former lands, and also with his debts generally, but gave no express power of sale. Held, that the executor took a power of sale by implication, and that after a sale of the latter lands by the executor, the devisees of the former had no equity against the purchaser in respect of the charge of the mortgage debt. This was an appeal from the decision of the Master of the Rolls, holding that the executors of a testator named Richard Sulley had power to sell an estate situate in the Sandfield, at Nottingham, and to give a valid receipt to the purchaser. By the will, which was dated the llth of June 1817, the testator devised three messuages situate in Rutland Place, Nottingham, and also four messuages situate in Knotted Alley, Nottingham, to the use of his daughter Elizabeth, for her life, with remainder to the use of all and every her children which should be living at her death, and of their respective heirs and assigns for ever, as tenants in common, with a gift over, in case his said daughter should die without leaving issue. The testator -also devised certain messuages in Nottingham, and two closes in the Sandfield at Nottingham, to the use of his son Richard Sulley, for life, with remainder to the use of his children who should be living at his decease, as tenants in common, with a limitation in the event of that remainder not taking effect. And he gave, devised and bequeathed all his hereditaments and real estate, and shares of hereditaments and real estate, situate and being at Arnold, in the county of Nottingham, and all other his real estate whatsoever and wheresoever, and all his ready money and securities for money (except for what his son-in-law John Parr might owe him at his decease), household goods and furniture, twist-net machines, chattels, personal estate, credits and effects, of what nature or kind soever, which he might die possessed [273] of, unto and to the use of his son Richard Sulley, and of his heirs, executors, administrators and assigns for ever, subject nevertheless, and he thereby charged the same with and to the payment of the sum of 200 owing to Mrs. Sarah Waplington on mortgage of his messuages so devised to his daughter Elizabeth Sulley as aforesaid, and of the legacies therein mentioned, and with and to the payment of his just debts and funeral and testamentary expenses. But if his said premises at Arnold, and his said personal estate, should not be sufficient for that purpose, then he thereby charged his two closes in the Sandfield at Nottingham aforesaid with the payment of such deficiency ; and he appointed his son Richard Sulley sole executor of his will. The testator, by a codicil to his will, revoked the devise of the real estate at Arnold to his son Richard Sulley. He died in July 1819, and his will was proved by his son Richard Sulley, who exhausted the personal estate in payment of the testator's funeral and testamentary expenses and debts, except the mortgage debt due to Sarah Waplington. He also sold the two closes in the Sandfield to a purchaser named Nathaniel 876 ROBINSON t'. LO WATER 5 DB O. M. & 0. 274. Sulley, in whom an outstanding legal estate in fee-simple in them had been and continued vested as a trustee for the testator and his heirs. The purchaser had notice of the will. The Plaintiffs, who were entitled under the will to the estate mortgaged to Mrs. Wapliugton, instituted the present suit against the persons who were entitled to the closes in the Sandfield, and who claimed under Nathaniel Sulley, praying by their bill that the Defendants might pay the mortgage debt secured on the estate devised to [274] Elizabeth, or otherwise that the Sandfield closes might be sold, and the proceeds applied in such payment. The cause came on to be heard on a motion for decree. The Master of the Rolls dismissed the bill. The Plaintiffs appealed. The case is reported below in the 17th Volume of Mr. Beavan's Reports (page 592). Mr. Craig and Mr. Batten, in support of the appeal. This is not a case in which the executor had a power to sell. It is true, that under a direction in a will that land shall be sold for payment of debts, without saying by whom, the executor takes a power of sale by implication; but that has never been extended to a case where there is no direction to sell, but merely a charge of debts. In Gosling v. Carter (1 Coll. 650), one of your Lordships held it to be a question of intention, to be collected from the whole will, whether the executor took such a power. Here the limitations of the estates render such an intention extremely improbable. In Forbes v. Peacock (11 M. & W. 630-637), the Lord Chief Baron said, "It appears to me, upon the authority of the cases cited, that where a power is given to sell property for the purpose of either paying debts or legacies, or of converting them into a residuary fund, that power must from its nature belong to the executors. The estate no doubt, in point of law, descends to the heir at law, subject to the power to sell; but the heir at law is not bound to make any distribution; that is the duty of the executors." The point has indeed been settled by the recent case [275] of Doe d. Jones v, Hughes (6 Exch. 223). In that case a testator had by his will charged all his real and personal estate with payment of his debts, and died intestate as to one estate : it was held, that this estate descended to the heir...
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