Sir John Edmond De Beauvoir, Bart, - Appellant; Richard Benyon De Beauvoir, - Respondent
| Jurisdiction | England & Wales |
| Judgment Date | 09 March 1852 |
| Date | 09 March 1852 |
| Court | House of Lords |
English Reports Citation: 10 E.R. 206
House of Lords
Mews' Dig. iv. 282; xv. 851. S.C. 16 Jur. 1147; and, Below, 15 Sim. 163; 15 L.J. Ch. 305; 10 Jur. 466. Distinguished in Wingfield v. Wingfield, 1878, 9 Ch. D. 659; and Keay v. Boulton, 1883, 25 Ch. D. 218. Considered in Low v. Smith, 1856, 2 Jur. N.S. 344; Smith v. Butcher, 1878, 10 Ch. D. 115; Comfort v. Brown, 1878, 10 Ch. D. 151; and Berens v. Fellowes, 1887, 56 L.T. 394. Cf. also In re Jeaffreson's Trusts, 1866, L.R. 2 Eq. 280; In re Goods of Dixon, 1878, 4 P.D. 83.
Will - "Right Heirs" - Limitation of real and personal estate - Power to convert personal estate.
[524] SIR JOHN EDMOND DE BEAUVOIR, Bart,-Appellant; RICHARD BENYON DE BEAUVOIR,-Respondent [March 9, 1852]. [Mews' Dig. iv. 282; xv. 851. S.C. 16 Jur. 1147; and, below, 15 Sim. 163; 15 L.J. Ch. 305; 10 Jur. 466. Distinguished in Wingfield v. Wvngfteld, 1878, 9 Ch. D. 659; and Keay v. Boulton, 1883, 25 Ch. D. 218. Considered in Low v. Smith, 1856, 2 Jur. N.S. 344; Smith v. Butcher, 1878, 10 Ch. D. 115; Comfort v. Brown, 1878, 10 Ch. D. 151; and Berens v. Fellowes, 1887, 56 L.T. 394. Cf. also In re Jeaffresoris Trmts, 1866, L.R. 2 Eq. 280; In re Goods of Dixon, 1878, 4 P.D. 83.] Will-" Eight Heirs "-Limitation of real and personal estate-Power to convert personal estate. A testator made a will in the following form: " Whereas I am seised in fee-simple of divers freehold manors, or reputed manors, messuages, lands, tenements, rents and hereditaments, situate, etc., and of a leasehold estate in, etc., and 206 DE BEAUVOIR V. DE BEAUVOIR [1852] III H.L.C., 625 also of a copyhold estate, situate, etc., and also of freehold estates in, etc., and of large sums in the funds of England: Now I do hereby give and devise, after my just debts and funeral expenses and legacies are paid (which I order to be paid out of my personal estate), all my estates in the funds of England and all my said manors, etc.," unto three persons in succession, and their sons successively in tail male, in strict settlement; " and for default of such issue, I give and devise the same to my own right heirs for ever." He then gave his trustees a power, with the consent of the person who might be in possession, to lay out his personal estate in the purchase of freeholds, etc., and to settle the same when purchased to such uses as were declared of his " manors, or reputed manors, messuages, lands, tenements, rente, hereditaments, and premises devised by this my will, as shall be then existing undetermined, or capable of taking effect, etc., to, etc., for no other estate, use, trust, or purpose whatsoever:" Held, first, that the power to trustees to convert personalty into realty did not operate as an absolute conversion: but, secondly, that, on the face of the will, it was the intention of the testator to make the two funds a blended property, and to give them the character of real estate, and to make both properties go together, and to give both to persons expressly designated; and that such intention did not cease with the failure of issue male under the limitations, so as to make the real estate afterwards go in one way, and the personal estate in another. This was an appeal against a decree of Vice-Chancellor Wigram, made in a suit instituted to obtain a declaration of the true construction of the will of the late Reverend Peter Beauvoir, of Downham-hall, in the county of [525] Essex. The appellant was the personal representative of the testator's sole next of kin, and the respondent the testator's heir-at-law. The will, which appeared to have been drawn by the testator without professional assistance, bore date the 27th day of July, 1800. After giving, in the ordinary form, pecuniary legacies to several individuals, the testator gave a sum of 6000 in the 4 per Cents, to his godson R. P. Whish, half of the interest of which was to be expended in his maintenance and education, and the other half, with the principal, to be paid over to him when he should arrive at twenty-one; but if the said R. P. Whish should die before twenty-one, then the said 6000 were given to " Martin Whish and Richard Benyon, and their heirs," during the life of Harriet Whish, and for her separate use, with a power of appointment. The will then proceeded thus: " And where as I am seised in fee-simple of divers freehold manors or reputed manors, messuages, lands, tenements, rents, and hereditaments, situate, etc., and of a leasehold estate in, etc., and also of a copyhold estate situate, etc., which I have surrendered to the use of my will: And also of freehold estates in Essex, and of large sums in the funds of England: Now I do hereby give and devise, after my just debts and funeral expenses and legacies are paid, which I order to be paid out of my personal estate, all my estates iii the funds of England, and all my said manors, or reputed manors, messuages, lands, tenements, tithes, rents, hereditaments, and premises, both freehold, leasehold, and copyhold, and what other kind and nature soever, and wheresoever situate in the kingdom of Great Britain, and whereof I have power to dispose, and all my estate, right, title, and interest therein, in possession, reversion, or otherwise howsoever, with their and every of their rights, members, and appurtenances, unto Edward Benyon, second son of the [526] late Richard Benyon, of Englefield-house, in the county of Berkshire, and his assigns, for and during the term of his natural life, without impeachment of waste; and from and after the determination of that estate, I give and devise the same to Richard Benyon, of Engle-field, in the county of Berkshire, and Martin Whish, of Berners Street, in the county of Middlesex, and their heirs, during the life of the said Edward Benyon, in trust to preserve the contingent remainders hereinafter limited from being prevented, defeated, or destroyed, and for that purpose to make entries and bring actions, as occasion shall be or require; in trust, nevertheless, to permit and suffer the said Edward Benyon and his assigns to receive and take the rents and profits thereof during his life; and from and after the decease of the said Edward Benyon, I give 207 Ill H.L.C., 527 DE BEAUVOIR V. DE BEAUVOIR [1852] and devise the same to the first, second, third, fourth, fifth, and every the son and sons of the body of the said Edward Benyon lawfully to be begotten, severally, successively, and respectively, one after another, in order and course as they shall be in priority of birth and seniority of age; and the several and respective heirs male of the several and respective body and bodies of all and every such son and sons lawfully issuing, the elder of such sons, and the heirs male of the body lawfully issuing, to be always preferred, and to take before the younger of such sons and the heirs male of his and their body and bodies lawfully issuing." There was a similar gift with like limitations, to Charles Benyon, the third son of Richard Benyon, of Englefield, and then the will proceeded thus: " And for default of such issue, I give and devise the same to Richard Benyon [the respondent], eldest son of the late Richard Benyon, of Englefield, in the county of Berkshire, and his assigns, for and during the term of his natural life, without impeachment of waste. And from and after the determination of that estate, [527] I give and devise the same to the said Martin Whish and his heirs, during the life of the said Richard Benyon, in trust, by the ways and means aforesaid to preserve the contingent remainders, but, nevertheless, to permit and suffer the said Richard Benyon and his assigns to receive and take the rents, issues, and profits thereof during his life. And from and after the decease of the said Richard Benyon, I give and devise the same to the first, second, third, fourth, fifth, and all and every other the son and sons of the body of the said Richard Benyon lawfully to be begotten, severally, successively, and respectively, one after another, in order and course as they, and every of them, shall be in priority of birth and seniority of age, and the several and respective heirs male of the body, several and respective body and bodies, of all and every such son and sons lawfully issuing; the elder of such sons, and the heirs male of his body lawfully issuing, to be always preferred and to take before the younger of such sons, and the heirs male of his and their body and bodies lawfully issuing; and for default of such issue, I give and devise the same to my own right heirs for ever." The will then gave certain powers of leasing, and some additional legacies, and appointed the respondent and Martin Whish executors, and concluded in the following words :-" And I do give a power to my said trustees, with the consent of the person who may be in possession and entitled to the profits thereof, to lay out and invest the residue and surplus of my said personal estate in the purchase or purchases of freehold messuages, lands, tenements, and hereditaments, within that part of Great Britain called England, and to settle and convey the same, when purchased, to, for, upon, and subject to such and so many of the uses, estates, trusts, powers, provisoes, and limitations, hereinbefore limited, created, and declared, of and concerning my said manors or reputed manors, messuages, [528] lands, tenements, rents, hereditaments, and premises, devised by this my last will, as shall be then existing undetermined, or capable of taking effect, and to and for no other estate, use, trust, or purpose whatsoever." Edward Benyon and Charles Benyon, the first tenants for life, named in the testator's will, departed this life without issue, in his lifetime. The testator died in September, 1821, leaving the respondent his heir-at-law, and the last in succession of the devisees under the will, him surviving. The respondent is a...
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