Sir Gilbert East Gilbert East, Bart., - Appellant; Samuel Twyford and Another, - Respondents
| Jurisdiction | England & Wales |
| Judgment Date | 21 July 1853 |
| Date | 21 July 1853 |
| Court | House of Lords |
English Reports Citation: 10 E.R. 564
House of Lords
Mews' Dig. vi. 1831; x. 978; xv. 735, 776, 777. S.C., in Ch., 9 Hare, 713.
Estate - in tail; for life - Executory Trust - "Inherit" - "Son" - "Grandson."
[517] SIR GILBERT EAST GILBERT EAST, Bart,,-Appellant; SAMUEL TWYFORD and Another,-Respondents [July 15, 18, 19, 21, 1853]. [Mews' Dig. vi. 1831; x. 978; xv. 735, 776, 777. S.C., in Ch., 9 Hare, 713.] Estate-in tail; for life-Executory Trust-" Inherit "-" Son "-" Grandson." Where an estate for life is given by clear words, the mere imposition of a charge on the tenant for life will not have the effect of enlarging the estate. A testator, by a will written on the pages of a small note-book, divided his property into three classes, marked No. 1, No. 2, No. 3. He devised these classes of property to persons designated by letters. The order of " succession " was marked on one page (54) of his will. This page contained the words " The eldest and other sons to inherit before the next letter." The persons designated by the letters were all named in a card, which was referred to in the will, and which card was with the will admitted to probate. K. was the testator's wife, to whom was given an estate for life in all the classes of the property. The will required implicit obedience to certain orders of the testator on the part of " the individual first to inherit after K. ;"and if not, " the property aforesaid set down and particularised in No. 1 to go to M., if not to L., and afterwards to his eldest lawfully begotten son, etc." There were similar expressions with regard to N. and 0. The card showed that these two letters were intended for the eldest sons of two nephews, but who were then unborn. The property No. 1 consisted of very large sums in stock, which the executors of the will were to invest in the purchase of real estate; and in page 54 L. was named as the person to take No. 1 after the life estate of K. A grandson was " to inherit before the nex1 named in the entail or any one of his sons." Class No. 2 consisted of a small estate in land, and by page 54, 0. was, as to that, to succeed to K., and the estate there given to 0. was expressly a life estate, with [518] remainder to his eldest and other sons in tail male; and it was there also said " a grandson legitimate shall inherit before a younger son." Class No. 3 consisted of certain estates in Suffolk; the " succession " there was (page 54) " first to K. then to M.," and the devise (page 47) was " first to K. and then to M., and afterwards to his eldest legitimate son, and then to his other legitimate sons in order of primogeniture, provided, but not else, the eldest have no issue male; if he have, it will go to him, and so on to the other sons in like manner. After the decease of K., I repeat, I bequeath all the property aforesaid to M. and his heirs male, in the manner aforesaid, as in the case of L., etc., at page 2, and I mean and order that this mode shall prevail throughout the whole entail, under precisely the same injunctions :" Held that, reading all the parts of the will together, L. only took a life estate in No. 1, with remainder to his eldest and other sons in tail male: Held, also, that this was not an executory trust. The Court of Exchequer, on an information filed by the Attorney-General for legacy duty, had held that L. took an estate tail. On a bill to carry into effect the trusts of the will, the Vice-Chancellor held that L. took a life estate only: The Vice-Chancellor's decision was affirmed; but as the testator had himself created the difficulty, the costs were ordered to come out of the estate. Meaning of words " son," and " grandson," and " inherit." This was an appeal against a decree of Vice-Chancellor Turner, pronounced in July, 1851, in a suit instituted to obtain the decision of the Court on the construction 564 BAST V. TWYFORD [1853] IV H.L.C., 619 of the will of Sir Gilbert East, who died on the llth of December, 1828. The testator made his own will in the pages of [519] a parchment-covered book, and designated his intended devisees and legatees by letters. The explanation of the meaning of these letters was given on a card. The book and card were admitted to probate, as constituting the will of the deceased. In the course of the suit, it ^|as determined that the persons thus designated in the will were duly ascertained by the card. In the first page of the book, which was dated 10th January, 1819, the testator said, " I hold forth to the direst execrations and infamy any person endeavouring to alter or overset, by suffering a recovery, by any Act of Parliament, or in any other way, these directions herein set down; and further, that if the injunctions and directions in No. 1 * be not most fully and rigidly adhered to in every respect by the individual first to inherit [2] f after K, and therein set down, that then I order and bequeath the property aforesaid set down and particularised in No. 1 to go to M., if not to L., and afterwards to his eldest lawfully begotten son, etc., on the sole condition of their fully and unequivocally conforming to the conditions therein set down, but not otherwise; and if he or they shall not in every respect and tittle conform thereto, then and in that case I leave and bequeath the property aforesaid in No . 1 to N., and at his decease to his eldest legitimate son, etc., and in case he [520] or they shall not in like manner rigidly and fairly comply with these conditions in No. 1 set down, then I bequeath the said property to [3], and at his decease to his eldest legitimate son, etc. Now in case of his or their non-compliance in every respect to the conditions set down in No. 1, then the said property shall go to 0., and at his decease to his eldest legitimate son, etc.; but still only if he and they do unconditionally comply with its orders and directions. In case of the decease of an eldest son in any of the abovenamed cases, or in any subsequently named, then the property in No. 1 shall go to the second legitimate son, and so on, according with primogeniture; but it is my will and order, that in every case a grandson shall inherit before the [4] next named in the entail, or any of his sons. If or his sons shall not comply with the terms here specified most particularly, the property set down in No. 1 shall go to P., and at his decease to his eldest legitimatei son, etc. And again, in case of non-compliance in the last-named, or any one of his sons who may be entitled to inherit by the conditions of this will, I in that case bequeath the property set down in No. 1 to Q., and then to V. and his eldest son, etc., after his decease; and if neither he or they, or any one individual herein set down or designated, though unborn, shall fully bind himself or themselves to adhere to its conditions [5] unequivocally, then and in that case I hereby bequeath all the property set forth in No. 1 aforesaid, to increase the funds of my almshouse, etc." [7]. " At my decease I leave the approbation of all dividends arising from," naming the stocks, " to K. for h natural life, and afterwards I request R. and his heirs, etc., and S. and his heirs, etc.," the executors, " to proceed directly to lay out in one or more freehold estates, all the above-recited stocks, in England, but [521] nowhere else." [10]. " It is my will and direction that the succession of inheritance to all this property set forth in this No. 1, at the decease of each person, as it may happen, in possession, shall be in every respect and way the same as in the case of non-compliance with the conditions herein-stated." In [11] the testator required that every person taking the property bequeathed in No. 1 should take the name of Gilbert East, and the arms, motto, and crest of his family " under penalty of the whole of this property in No. 1 bequeathed going to the next to inherit as before set down." In [13] he described the property No. 2, an estate at Fifield, which he bequeathed " to K. for life, and then to 0. for life, and then to- his eldest legitimate son, and afterwards to his other sons, if the eldest have no issue male; it being my will and intention in this, as * The testator, at p. 54, divided his property into three classes, and marked by letters the individuals who were to take any interest in each class. These letters were explained by the card, which expressly referred to p. 54. f The figures printed in this report in brackets designate the beginning of each page of the book. There were several blanks in the will, all of which are marked in the parts here quoted. The pages were very irregularly filled up, 565 IV H.L.C., 622 BAST V. TWYFORD [1853] well as in the cases set down in No. 1, that a grandson legitimate shall inherit before a younger son." In [14] the testator provided that if 0. should die " without issue male " Fifield was to go to N. " for his life, and then to his eldest son," and in case of no male issue, " to M. for life only, and then precisely as before directed to his eldest, and other sons after the eldest," and if no issue male, " to Q. and his eldest son," and so to W. " for his life and his eldest son." In [15] the testator declared that he disapproved of Fifield being sold " on any legal contingency occurring,'' and no timber was to be cut " save only for necessary repairs, and ornamental timber not even for that purpose." There were then annuities for the maintenance of his dogs and horses, and a favourite parrot, and legacies for servants, and in [23] he declared that " the person first entitled to receive my property set down and detailed in No. 1 at p. 7 of this book shall be my residuary legatee." The pictures were to go " to the individual [25] actually in possession of the [522] property set down and bequeathed in No. 1 and to go as heirlooms, to be inherited by each one in succession as...
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