Rogers v Gibson
| Jurisdiction | England & Wales |
| Judgment Date | 25 June 1750 |
| Date | 25 June 1750 |
| Court | High Court of Chancery |
English Reports Citation: 27 E.R. 1157
HIGH COURT OF CHANCERY
See Torre v. Browne, 1855, 5 H. L. C. 571.
[485] gibson v. Lord montfort, June 25, 1750. rogers v. gibson. [See Torre v. Browne, 1855, 5 H. L. C. 571.] Devise of real, leasehold, copyhold, and personal estate to trustees, their executors, &c., first for payment of annuities, &c., upon a deficiency of the personalty; " and " as concerning all the rest, residue," &c., in trust for the children of A. but if she die without issue, then to B. and C. The intermediate profits pass by this residuary devise. (See the Supplement, p. 203.) Not necessary, the word " heirs " should have been inserted to carry the fee, for trustees have a fee when the purposes of the trust cannot be answered otherwise. Trust of copyhold deviseable without surrender. But otherwise, as to copyholds of which the testator had the legal estate. Lands agreed to be purchased after the will, and before the first codicil, pass by such codicil, operating as a republication. Q ? Whether a codicil relating in its terms only to personal estate, and yet executed according to the statute of frauds, can operate as a republication of a will as to real estate after purchased. See Piggott v. Waller, 7 Yes. 98. As to rents and profits directed, or held to be accumulated, et e contra. Difference of the word " residue," with relation to real estate, or to personalty. Trust of copyhold-(S. C. Amb. 93. See 4 Ves. 288.) Mr. Shepherd by his will gave all such worldly estate, as it pleased God to bless him with, as follows : All and singular his freehold, leasehold, copyhold, and also personal estate of what kind soever to trustees, their executors, administrators and assigns, in trust to and for several uses; to pay several respective annuities, sums 1158 gibson d. months (lord) i ves. sen. 486. and legacies by and out of the produce of the personal estate ; if that should happen to be deficient, then to pay the same by and out of the rents, issues, and profits arising by the real estate : and as for and concerning all the rest, residue and remainder of the real and personal estate of what nature and kind sover, after provision being made for the payment of the legacies, &c., he gives to such child or children, as his daughter should have lawfully begotten, whether male or female, equally to be divided between them; if his daughter should die without such issue of her body lawfully begotten, then to two other persons equally to be divided between them share and share alike. In another clause in the will he directs and orders, that upon the death or deaths of all and every person or persons, to whom annuities for their lives were given, such annuities as should fall in from time to time, should go back to the residue of the real and personal estate, and go to those in remainder over. By a codicil he adds, provided his daughter die without issue; but if she should leave a child or children, such annuities as fell in should be divided among them share and share alike. He executes another codicil, reciting that whereas he had by his last will of such a date given and devised to. his executors a sum of money in trust for A. and another in trust for B. he revokes those legacies, and desires, that writing should be a further part of said last will and testament. Before the last codicil he had made a purchase of some lands. Two questions were now made, beside what related to the copyhold. One concerning the surplus rents and profits of the real estate after satisfaction of the particular charges on it created by the will, till such time as the person to whom he devised on contingency, viz. a child of the daughter, came in esse : whether they were to go either as part of the residue to attend the several limitations of that residue, or to the first taker of that residue, or to the heir at law 1 the other question was, whether the after-purchased lands should pass by the will 1 [486] I* was insisted, the whole being given away, there can be no resulting trust for the heir : great pains being taken to prevent an intestacy as to any part. Though the heir wants not the intent of the testator, if it rested on that alone, yet, when a question is doubtful, what is comprised in the residue, what the testator designed, is material in deciding it. This residue consists of a compound fund of several ingredients. In the clause .of annuities falling in, the word residue cannot mean simply that estate the testator possessed at his death ; speaking of what it is supposed to have happened after his death ; it being the residue of the profits out of which these annuities are to be paid. In other branches of the will he has industriously affected an accumulation of the produce of different parts of his estate; for in a legacy to a particular person he has taken care the interest should be accumulated from time to.time; a fortiori his design was the same as to the residue intermediate. He considered his estate not as consisting of the inheritance exclusive of the rents and profits during the contingency. Devise of rents and profits gives the estate itself, Co. Lit. Had he said so in terms, there would have been no doubt; and here are words sufficient for that. Most cases of accumulation depend on the particular circumstances; as did Hopkins v. Hopkins and others, before his Lordship. (1 Ves. sen. 268.) It was sometime before such a devise to a person not in esse was allowed; but now it is. It must be admitted, the estate in the mean time will descend : on the other hand it must be allowed, one may direct the profits for the person unborn, where he has devised his estate by way of trust; because that limitation must be within a life in being; and there is sufficient to shew, that was his intent. Besidw generally would not in case of real estate have the same construction as of personal: in the latter it meaning every thing, however arising, as a lapsed legacy, or any thing not particularly mentioned, or given on contingency : not so as to real estate (see Durour v. Motteux, 1 Ves. sen. 321, and Supplement, p. 157), as the intermediate profits of an estate to take effect on a future contingency would descend: but here the testator has shewn he intended to comprehend all the profits under the residue : and as the heir admits, that giving the personal estate gives the profits of it, by mixing both he shews his intent, the intermediate profits of the real should go the same way. Next, the after-purchased lands pass by the codicil; it being a republication, executed according to the statute, and as a...
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