Shuldham, - Plaintiff (in Error); Smith (Lessee of Mathews), - Defendant (in Error): and Smith, - Plaintiff (in Error); Shuldham, - Defendant (in Error)
| Jurisdiction | England & Wales |
| Judgment Date | 05 June 1818 |
| Date | 05 June 1818 |
| Court | Exchequer |
English Reports Citation: 3 E.R. 1386
ERROR FROM THE COURT OF EXCHEQUER CHAMBER.
Devise of real estate in trust to pay the clear rents, issues, and profits, and in certain proportions, to certain persons in the will mentioned, for life: and then testator proceeds to devise as follows;-" And-from and after the "death of the survivor of them the said L. S." etc. (naming the several persons to whom the above life interests were given)" then I give and "devise all and singular the said manor, messuages, lands, etc. unto all and "every the children of my late sister]ú. C. by her three several husbands" (naming them), "that shall be then living, and their heirs and assigns for" ever, equally to [23] be divided between them as tenants in common, and "not as joint tenants; and if there should be but one such child, and no" issue of any of the other children then living, then, and in that case, I "give and devise all my said real estates in Ireland unto such surviving" child, his or her heirs and assigns for ever." The event which happened was that, at the death of the surviving annuitant, there was only one child of the sister E. C. then living, but that there was issue of several of the other children then living. Held by the House of Lords, in concurrence with the unanimous opinion of the Judges attending, that there was an intestacy, from the death of the surviving annuitant; the event which happened not having been provided for.
IEELAND. ERROR FROM THE COURT OF EXCHEQUER CHAMBER. shuldham,-Plaintiff (in Error); smith (Lessee of Mathews),-Defendant (in Error): and smith,-Plaintiff (in Error); shuldham,-Defendant (in Error) [April 25, 28, July 8, 1817 ; June 3, 5, 1818]. [Devise of real estate in trust to pay the clear rents, issues, and profits, and in certain proportions, to certain persons in the will mentioned, for life : and then testator proceeds to devise as follows ;-" And- from and after the " death of the survivor of them the said L. S." etc. (naming the several persons to whom the above life interests were given) " then I give and " devise all and singular the said manor, messuages, lands, etc. unto all and " every the children of my late sister ]£. C. by her three several husbands " (naming them), " that shall be then living, and their heirs and assigns for " ever, equally .to [23] be divided between them as tenants in common, and " not as joint tenants; and if there should be but one such child, and no " issue of any of the other children then living, then, and in that case, I " give and devise all my said real estates in Ireland unto such surviving " child, his or her heirs and assigns for ever." The event which happened was that, at the death of the surviving annuitant, there was only one child of the sister E. C. then living, but that there was issue of several of the other children then living. Held by the House of Lords, in concurrence with the unanimous opinion of the Judges attending, that there was an intestacy, from the death of the surviving annuitant; the event which happened not having been provided for.] This was an ejectment on the title, brought in or as of Hilary Term, 1811, in the Court of Exchequer, in Ireland, by Elizabeth Mathews, widow, by John Smith, her 1386 SHULDHAM V. SMITH [1817-1818] VI DOW. feigned lessee upon her own demise only, for the recovery of all that and those the town and lands of Balleymulvey, and other lands in the declaration in ejectment particularly mentioned, situate in the County of Longford, in Ireland, to which ejectment defence was taken generally by the Plaintiff in error in Hilary Term, 1811 ; and at the Summer Assizes, 1811, the same came on to be tried by a special jury of the county of Longford, at Longford, when the said jury found a special verdict to the substance and effect following; that is to say, " That Pooley Molyneux was seized of the lands, tenements, and hereditaments " mentioned in the declaration within-written, in his demesne as of fee, and being so " thereof seized on the 12th day of April, in the year of our Lord 1767, duly [24] made " his last will and testament, signed by him in the presence of three credible subscribing " witnesses, and subscribed by the said three credible witnesses in his presence, and " thereby gave and devised in the words following ;-' As touching and concerning my " ' temporal estate and effects, I devise all and singular my manors, messuages, lands, " ' tenements, hereditaments, and real estate whatsoever in the kingdom of Ireland, " ' which I shall be seized or possessed of, interested in or entitled unto at the time of " ' my death, unto my nephew, Lemuel Shuldham, Esquire, and his heirs and assigns " ' for ever ò upon the trusts, nevertheless, and to and for the several intents and " ' purposes hereinafter mentioned, expressed, and declared, of and concerning the same ; " ' that is to say, in trust, after deducting all taxes, repairs, receiver's or bailiffs salaries, " ' and all outgoings incident to the said estate, to divide the clear residue of the yearly " ' rents, issues, and profits thereof into twenty equal parts or shares, and to pay the " ' same unto the several persons hereinafter mentioned, to wit, six twentieth parts or " ' shares of the said clear residue of the yearly rents, issues, and profits of my said real " ' estates unto himself the said Lemuel Shuldham, or his assigns, for and during the " ' term of his natural life, by equal half-yearly payments; six other twentieth parts or " ' shares thereof to my sister, Dorothy Molyneux, or her assigns, for and during the " ' term of her natural life, by equal half-yearly payments; two other twentieth parts " ' or shares thereof to Mrs. Eebecca Shuldham, or [25] her assigns, for and during the " ' term of her natural life, by even half-yearly payments; one other twentieth part or " ' share thereof unto my niece, Sarah Curtis, or her assigns, for and during the term of " ' her natural life, by equal half-yearly payments ; one moiety or half part of one other " ' twentieth part or share of the said clear residue of the said yearly rents, issues, and " ' profits, unto my niece, Nabby Jackson, or her assigns, for and during the term of her " ' natural life, by equal half-yearly payments; and the other moiety or half part of the " ' said last-mentioned twentieth part or share unto my niece, Catherine. Hewetson, or " ' her assigns, for and during the term of her natural life, by equal half-yearly pay* " ' ments; one other twentieth part or share of the said clear residue of the said yearly " ' rents, issues, and profits of my said real estate unto my niece, Catherine Smith, or " ' her assigns, for and during the term of her natural life, by equal half-yearly payments ; " ' two other twentieth parts or shares thereof unto my niece, Eleanor Shuldham, or " ' her assigns, for and during the term of her natural life, by equal half-yearly pay-" ' ments; and the remaining twentieth part or share of the said clear residue of the " ' yearly rents, issues, and profits of my said real estate, unto my servant, David Davies, " ' or his assigns, for and during the term of his natural life, by equal half-yearly " ' payments. Provided always, and it is my true intent, that in case any of the said " ' several persons to whom I have directed such particular parts, shares, and pro-[26]-por-" ' tions of the clear residue of the yearly rents and profits of my said real estates to " ' be paid as aforesaid, shall happen to die, either before me or in the life-time of my " ' said nephew, Lemuel Shuldham, then I will and direct that the said part and share, " ' parts and shares of the said several person and persons so dying, shall go and be had, " ' received, and taken by my said nephew, Lemuel Shuldham, or his assigns, for his " ' natural life. Provided also, and it is my further intent and meaning, that when and " ' as any of the said several persons hereinbefore named, who shall survive my said " ' nephew, Lemuel Shuldham, shall happen to die, then I will and direct that the part, " ' share, and proportion of the said clear residue of the rents and profits of my said " ' real estate, hereinbefore directed to be paid to him, her, or them so dying, shall go " ' and belong to and be divided between the survivors or survivor of the said several " ' persons share and share alike, and in equal parts, shares, and proportions, and from " ' and after the death of the survivor of them, the, said Lemuel Shuldham, Dorothv 1387 VI DOW. SHULDHAM V. SMITH [1817-1818] " ' Molyneux, Rebecca Shuldham, Sarah Curtis, Nabby Jackson, Catherine Hewetson, " ' Catherine Smith, Eleanor Shuldham, and David Davies ; then I give and devise all " ' and singular the said manor, messuages, lauds, tenements, hereditaments, and real " ' estate whatsoever, in the said kingdom of Ireland, unto all, and every the children " ' of my said late sister, Elizabeth Curtis, deceased, by her three several husbands, " ' Kelly, Esq. the Eeverend [27] Shuldham, and Butler, " ' that shall be then living, and their heirs and assigns for ever, equally to be divided " ' between them as tenants in common, and not as joint tenants ; and if there should " ' be but one such child, and no issue of any of the other children then living, then, " ' and in that case, I give and devise all my said real, estates in Ireland unto such " ' surviving child, his or her heirs and assigns for ever: Item, it is my will, and I do " ' hereby authorize and empower my said nephew, Lemuel Shuldham, his heirs and " ' assigns from time to time, as occasion shall require, during the continuance of all or " ' any of the trusts hereby in him or them reposed, to grant leases of all or any part " ' of my said real estates in Ireland, for three lives or thirty-one years, at the best " ' improved...
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