Smith v Death
| Jurisdiction | England & Wales |
| Judgment Date | 20 June 1820 |
| Date | 20 June 1820 |
| Court | High Court of Chancery |
English Reports Citation: 56 E.R. 937
COURT OF THE VICE-CHANCELLOR OF ENGLAND
I M1DD. sn. SMITH V. DEATH 937 [371] smith v. death. June 19, 20, 1820. The Court will not compel a purchaser to take a title depending upon matter of fact, if the fact do not admit of satisfactory proof or be not well proved. A power of appointment in a grantee for life, though in favour of particular objects, is extinguished by a recovery. This was a bill for the specific performance of a contract of sale. The Master reported in favour of the title, and the case came on upon exceptions to this report. The Plaintiffs title depended upon the will of Edward Wise, who devised the property in question to Charles Brown for life, with remainder to the use and behoof of such child and children of the body of the said Charles Brown, and him surviving, who should be brought up and educated as a member of the Established Church of England, and should be a constant frequenter or frequenters thereof, in such parts and proportions, &e., as he the said Charles Brown should by deed or will appoint; and in default of such appointment, to the use of the first son of the body of the said Charles Brown, lawfully begotten, who should be brought up and educated as aforesaid, and should be a constant frequenter of the said Church of England, and the heirs of the body of such son, with divers remainders over. The first son of Charles Brown attained his majority in 1817, and soon afterwards joined with his father in suffering a recovery, under which the Plaintiff claimed. Mr. Sugden, in support of the exceptions. Mr. Shad well, contrh. It was first objected by Mr. Sugden that the power of appointment being limited to surviving children at the death of the father, the immediate gift to chil-[372]-dren, in default of appointment, was to be construed with the same limitation. the vice-chancellor [Sir John Leach] held that such a construction would be contrary to the force of the expressions used, and not warranted by necessary or rational inference. Mr. Sugden next contended that the description of the first son " who should be brought up and educated as a member of the Established Church of England, and should be a constant frequenter of Jsuch Church," was in its nature of uncertain proof, and was, in fact, inadequately proved before the Master ; and he cited the case of Lowe v. Lush (14 Ves. 547), where Sir W. Grant held that an act of bankruptcy being established, a purchaser was...
To continue reading
Request your trial
-
Heath v Wickham
...2 Dr. & Sm. 204. Allen v. KnightENR 5 Hare, 273. Wilton v. Hill 25 L. Jour. Ch. 156 Wall v. RogersELR L. R. 9 Eq. 58. Smith v. DeathENR 5 Madd. 371. Horner v. SwannUNK 1 T. & R. 430. Isaac v. HughesELR L. R. 9 Eq. 191. Green v. Green 2 Jo. & L. 541. Stewart v. Marquis of DonegalENR 2 Jo. & ......
-
Lees v Mosley and Another
...equity, because a parent may by his own acts, extinguish the power which he was entitled to execute by his will: Smith v. Death (5 Madd. 371), West v. Berne-y (1 Euss. & M. 431), Mickley v. Guest (id. 440). That the power will not control the previous words, so as to give the ancestoi an es......
-
Lyons and Carroll's Contract, and The Vendor and Purchaser Act, 1874
...342. Scott and Alvarez's ContractENRELR Ibid. 596, and [1895] 2 Ch. D. 603. Shirley v. FisherUNK 47 L. T. (N. S.) 109. Smith v. DeathENR 5 Madd. 371. Stuart v. Kennedy 3 Irish Jurist, 305. West v. BurneyENR 1 Russ. & M. 431. Vendor and purchaser — Conditions of sale — Title — Will — Gift by......
-
Ann Roddy and Others, - Plaintiffs in Error; Francis Fitzgerald, - Defendant in Error
...of objects identical in other respectsi with the objects of the power," citing in support of the proposition, the case of Smith v. Death (5 Madd. 371). Indeed the general rule of Expressum facit cessare taciturn, seems plainly to exclude any increase of an estate by implication where there ......