Schroder v Schroder
| Jurisdiction | England & Wales |
| Judgment Date | 05 May 1854 |
| Date | 05 May 1854 |
| Court | High Court of Chancery |
English Reports Citation: 69 E.R. 245
HIGH COURT OF CHANCERY
S. C. affirmed, 18 Jur. 987; 3 Eq. R. 97; 3 W. R. 55. See Hance v. Truwhitt, 1862, 2 J. & H. 225.
Will. After - acquired Estates. Election. Revocation.
KAY, 578. SCHRODER V. SCHRODER 245 [578] schroder v. schroder. May 2, 3, 5, 1854. [S. C. affirmed, 18 Jur. 987 ; 3 Eq. R. 97; 3 W. B. 55. See Hance v. TruwUtt, 1862, 2 J. & H. 225.] Will. After-acquired Estates. Election. Revocation. A devise by a will made before 1838 (1 Viet. e. 26, ss. 24, 34), of all the real estates of which the testator then was or at the time of his death should be seised, to his heir at law, if the testator acquired real estates subsequent to the date of his will, put the heir to his election. So also would such a devise by a testator who died before 1834 (3 & 4 Will. 4, c. 106, s. 3), from the mere intention thereby shewn to give the heir property under the will; notwithstanding that he would take nothing in fact under the will, but by his better title as heir. In such a Case the testator, subsequently to the making of his will, contracted to buy a certain freehold estate, and then made a codicil directing the executors and trustees of his will to complete the purchase, and hold the estate upon the trusts of the will, which were partly in favour of the heir, and then the testator tpok a conveyance of the same estate to uses to bar dower in his own favour. Held, that the devise by the codicil was revoked, and that the heir must elect. If a testator, before 1838, devised estate A., which he had contracted to buy, to one person, and estate B., and all other estates which he might subsequently acquire, to another, and gave benefits to his heir, and afterwards took a conveyance of A. to uses to bar dower in his own favour, and acquired other estates : Quaere, whether the devisee of B. could claim A., and all other after-acquired estates, against the testator's heir, under the doctrine of election; for the whole doctrine proceeds so entirely upon the ground of intention that the heir, in such a case, might be entitled to retain the estates, because neither of the devisees could have a better right against him than the other. G-eorge Schroder, by his will, dated the 8th of July 1825, devised "all my real estates whatsoever and wheresoever, of or to which / now am, or at the time of my decease shall be, seised or entitled for an estate of freehold and inheritance, or of freehold only, or of or to which any person or persons in trust for me now is or are, or at the time of my decease shall be, seised or entitled for an estate of freehold and inheritance, or of freehold only, or which I now have or shall hereafter, have power to dispose or appoint by will" (including certain freehold pre-[579]-mises therein specifically mentioned), with the appurtenances, unto his wife, Catherine Schroder, and Henry Hughes and John Bonus, their heirs and assigns, to the use of his said wife during her life, if she should so long remain his widow, or otherwise until her second marriage, she keeping the same estates in good and tenantable repair and condition, and insuring the same against loss or damage by fire; and from and after her second marriage, if she should happen to marry again, then as to one equal moiety or half part of the same real estates to the use of the said Henry Hughes and John Bonus and their heirs, in trust for his said wife, Catherine Schroder, for her separate use for life; and from and after the decease of his said wife, as to the same moiety, and also from and after her decease or second marriage as to the other moiety of the same real estates, to the use of all and every his children living at the time of his decease, or born in due time afterwards, as tenants in common, if more than one, and to their respective heirs and assigns; and the testator declared that the provision thereby made for or in trust for his said wife should be in bar of all dower, and should be for her separate use. Subsequently to the date and execution of this will the testator purchased a freehold estate at Clapham, in the county of Surrey, which was conveyed by indentures, dated respectively the 22d and 23d of October 1827, to uses to bar dower in favour of the testator. 246 SCHRODER Vi SCHRODER KAY, 580. On the 15th of November 1827 the testator signed a contract for the purchase of certain freehold premises situate at Stockwell Common in the said county of Surrey. After signing this contract, and before the conveyance to him of the premises at Stockwell Common, the testator made a codicil to his will in the following words :- [580] " Whereas I the within-named George Schroder have lately completed the purchase of a freehold estate, situate at Clapham in the county of Surrey. Now, I do hereby give and devise the said freehold estate, with the rights, members and appurtenances thereto belonging, unto my dear wife Catherine Schroder, and my friends Henry Hughes and John Bonus, their heirs and assigns, to the uses, upon the trusts, and for the intents and purposes expressed and declared in and by my said will, with respect to the real estates therein given and devised to them. And whereas I have lately contracted for the purchase of certain other freehold property situate in Stockwell in the said county of Surrey, and have paid a deposit on such purchase : Now, I do hereby direct that the said purchase shall be completed by my executors and trustees, and the remainder of the purchase-money paid out of my prsonal estate, and, when so completed, shall be taken and considered as real estate, and be held by my said executors and trustees to the uses, upon the trusts, and for the intents and purposes expressed and declared in and by my said will with respect to the real estate therein given and devised to them ; and in all other respects I hereby confirm my said will, and declare this to be a codicil to the same." By indentures of lease and appointment and release, dated respectively the llth and 12th of December 1827, the...
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