Smith v Baker
| Jurisdiction | England & Wales |
| Judgment Date | 12 July 1737 |
| Date | 12 July 1737 |
| Court | High Court of Chancery |
English Reports Citation: 26 E.R. 246
HIGH COURT OF CHANCERY
[385] Case 175-smith v. baker.(1) July the 12th, 1737. A. buys a copyhold estate for his own, and two lives, in the manor of [Martock], where the custom was, that whoever purchases in it, the estate shall go in succession, and by his will devises all his estate, real and personal, to his wife. The custom in the manor of [Martock] that whoever purchases in it, the estate shall go in succession ; the husband of the plaintiff purchased for his own, and two lives ; and by his will, after giving some few legacies, he, in general words, devises all his estate, real and personal, in possession or reversions, to his wife. It was insisted for the plaintiff, that by these general words she is intitled to this copyhold estate, and that the court will supply the want of a surrender ; and notwithstanding the custom of this manor, as the purchaser paid the whole purchase-mone)', the other two persons are to be considered as merely nominal, and that here is an implied trust for himself, though he purchased, knowing of the custom of this manor, and therefore had a right to devise it. Clarke v. Danners, 1 Cha. Cas. 210, relied on as a case in point for the plaintiff. Mr. Fazakerly for the defendants argued, that the successors, according to the custom of the manor, are to be regarded as hmredes facti, and that there are many instances where they are favoured in a court of equity, and an estate shall not be taken away from them by implication, where they are cot provided for some other way ; that it can never be imagined the testator, by putting reversions in the plural number, had an intention by that one single letter S to pass his copyhold, however literally the gentlemen on the other side may extend it to carry the copyhold. Lord Chancellor. The husband of the plaintiff having purchased this estate, tho' his legal interest be not according to the custom of the manor, yet he has an equitable interest from being the sole purchaser, and it may be brought near the case of a purchase at law of an estate, descendible to the heirs, in the name of a third person, yet it shall descend notwithstanding, for it shall be construed as a trust for the purchaser, he having advanced the money. The next question is, Whether, supposing there was not a general resulting trust, yet, as the purchaser has made a will, and devised this estate, a court of equity will supply a surrender. [386] The first...
To continue reading
Request your trial
-
Withers v Withers and Others
...Ch. Ca. 310. Bundle v. Bundle, 2 Vern. 252, 264. Anon. 2 Freem. 123. Benger v. Drew, 1 P. Wms. 781. Smith v. Barker, July 12, 1737 [1 Atk. 385]. Bumboll v. Rumboll, 17, 18,'20 April 1761 [2 Eden. 15]. Taylor v. Taylor, 1 Atk. 386. Mumma v. Mumma, 2 Vern. 19. Crisp v. Pratt, Cro. Car. 548. S......
-
Dyer v Dyer
...plaintiff, and by Burton and Morris for the defendant. The following cases were cited, and very particularly commented on. Smith v. Baker, 1 Atk. 385. Taylor v. Taylor, 1 Atk. 386. Mumma v. Mumma, 2 Vern. 19. Howe v. Howe, 1 Vern. 415. Anon. 2 Freem. 123. Benger v. Drew, 1 P. W. 781. Dicken......
-
Chapman against Gibson
...to be supplied: so that here is a case of supplying a surrender against the heir, who took nothing from the second brother. Smith v. Baker, 1 Atk. 385, ^ compares the rule to an heir in blood, and no other distinction there made ; but, surely, the right question must be, whether there is an......
-
Rumboll v Rumboll
...1 Ch. Gas. 310. Howe v. Howe, 1 Vern. 415. Bundle v. Bundle, 2 Vern. 264. Anon. 2 Freem. 123. Benger v. Drew, 1 P. W. 781. Smith v. Baker (1 Atk. 385). Withers v. Withers (Amb. 151). On the second point, they contended that the bond was a declaration of trust in performance of an agreement.......