Smith v Smith
| Jurisdiction | England & Wales |
| Judgment Date | 05 November 1861 |
| Date | 05 November 1861 |
| Court | Court of Common Pleas |
English Reports Citation: 142 E.R. 741
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
S. C. 31 L. J. C. P. 25: 5 L. T. 447; 8 Jur. N. S. 459; 10 W. R. 18. Discussed, Spence v. Spence, 1862, 12 C. B. N. S. 210.
11 C. B. (N. S.) 121. H M ITH 1 . S M [T H 741 [121] cares argued and determined [N the court of common pleads, in michaelmas term, in the twenty-fifth year of the reign of victoria. The Judges who usually sat in Banco in this Term, were, - Erie, C. J., Williams, J., Bylea, J., and Keating, J. ///^ /-~ ^ smith and others v, .smith and others. Nov. 5th, 1861. [S. C. 31 L. J. C. P. "25 : 5 L. T. 447 ; 8 Jur. N. H. 45!) ; 10 W. R. 18. Discussed, Spence v. tijienw, 1862, 12 C. B. N. H. 210.] Testator by his will, made before 1838, gave all his real and personal estate to trustees, hi trust, after payment of his debts, &c., to convert the personal estate into money, to be placed at interest. He then gave all " the profits " arising from his real estate and the interest of his personal estate to his wife, to bo applied to her maintenance and support at the discretion of the trustees, if she should need the whale of it, during her life. He then gave a legacy of 8001. to his niece. He then willed that his trustees should put his kinsman G-. S. into possession oi a close called " The First Close," which he gave to the said Q. S. ; and then followed this devise, - " Then I give all that my close or piece of land called ' The Second Close,' with all the appurtenances, unto my kinsman W. S., son of my late brother W. S. : " - Held, that a sufficiently clear intention to give W. S. an estate in fee was shewn, to countervail the absence of words of limitation. This was an action of ejectment brought for the recovery of a close or piece of land called " The Second Close," situate in the lordship of Pailton, in the county of Warwick ; and by consent of the parties, and under a judge's order, pursuant to the Common Law [122] Procedure Act, 1852, the following case was stated for the opinion of the court : - Joseph Smith and Thomas Smith being seised in fee as tenants in common of the said close called "The Second Close," the said Joseph Smith duly made and executed his last will and testament in writing, dated the 17th of March, 1824, and thereby gave and devised all that his undivided moiety or half part, and all other his right, share, and interest of and in all those several closes, pieces, or parcels of arable, meadow, and pasture land of which he was seised jointly with his brother Thomas Smith, and containing sixteen acres or thereabouts, situate and being in the parish of Pailton, ini the county of Warwick, then in his (the testator's) own occupation, and including the said close sought to be recovered, unto and to the use of his said brother Thomas Sinith, his heirs and assigns, for ever : and, in an event which did not happen, the testator gave and devised the same unto and to the use of his own right heirs, for ever, subject nevertheless and charged and chargeable, after the decease of the said Thomas S(nith, with the payment of certain legacies bequeathed by the will. The said Joseph Smith died on or about the 18th of April, 1824 ; and the said Thomas Smith, then becoming and being seised in fee of the entirety of the said close, duly made and executed his will, bearing date the 8th of January, 1835, in the words following :. - "In the name of God, Amen. I, Thomas Smith, of Churchover, in the county of Warwick, farmer, being of sound mind, memory, and understanding, do make this my last will and testament in manner and form following, that is to say, - First, I give all . my goods,, chattels, stock of cattle, implemente in husbandry, money at interest, rights, ; credits, whatsoever and [123] wherasoever, and of what kind soever it may consist of, and all mjy real and personal estate whatsoever and wheresoever, and of what kind soever it tnay consist of, into the hands of my kinsman John Clarke, of Pdilton, farmer, and my friend Richard Brumage, of Rugby, baker, in trust to and far the several uses hereinafter mentioned, that is to say, after the payment of all my just debts, funeral expenses, and the expense of proving this my last will, are paid, then my will is that my said trustees shall convert all my personal estate into money, and place the said money at interest. Then I give all the profits arising from my real estate, and the interest of my personal estate, unto my wife Francis Smith, to be applied towards her maintenance and support of her at the discretion of my said trustees, if she shall need the whole of it, during her natural life. Then, after her 742 SMITH V. SMITH 11 C. B. (N. S.) 124. decease, I give unto my niece Mary Clarke, wife of my trustee John Clarke, the sum of 5001.; and, in case she shall depart this life before she shall be possessed of the said 5001, then my will is that my said trustees shall divide the said legacy in equal shares amongst all the surviving children of my tiieoe Mary Clarke aforesaid. Then my will is that my said trustees shall put my kinsman George Smith in possession of all that my close or piece of land called 'The first Close,' situate in Pailton Lordship, which close I give unto my kinsman George Smith, together with all the appurtenances thereunto belonging. Then I give all that my close or piece of land called 'The Second Close,' with all the appurtenances thereunto belonging, unto my kinsman William Smith, son of my late brother William Smith." And, after giving another close in similar words, the said testator willed that his said trustees should "divide ail the residue and remainder of his personal estate" amongst the persons in his said will mentioned. [124] The testator died in 18.')8, and his widow died shortly after him. At the time of making the said will, the said testator was about seventy-five years of age, and without children; and the claimant George Smith, who is the devisee of "The first Close," was the son of the testator's nephew and heir presumptive, and at his doath, became Ids heir-at-law. The defendant's claim under the said William Smith, the devisee, who died in December, 1851). The testator had no other real estate than the lands specifically devised in the said will (). All his debts, funeral expenses, and the expense of proving the will, were satisfied by the trustees out of the personal estate. The question for the opinion of the court was, whether the claimant George Smith was entitled, to recover. Field, for the plaintiff. The question is whether, under the second devise in the will of Thonias Smith (which was made before the passing of the Wills Act, 7 W. 4 & 1 Viet. c. liG), the devisee William Smith took an estate in fee or an estate for life. It is submitted that he took for life only, there being no words of limitation, and nothing in the context whence the court can necessarily infer that the testutor intended to give him the fee. The authorities upon this subject, which are very numerous, are all collected in Jartnan on Wills, where the result of them is thus...
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