Sophia Baker, Widow, - Appellant; Martin Tucker, and Another, - Respondents
| Jurisdiction | England & Wales |
| Judgment Date | 09 July 1850 |
| Date | 09 July 1850 |
| Court | House of Lords |
English Reports Citation: 10 E.R. 41
House of Lords
Mews' Dig. v. 331; xv. 1049. S.C. 14 Jur. 771; and below, 11 Ir. Eq. R. 104. Followed in Sykes v. Sykes, 1871, L.R. 13 Eq. 65; Grattan v. Langdale, 1883, 11 L. R. Ir. 484, and cf. Parker v. Tootal, 1865, 11 H.L.C. 143, 148; Watkins v. Frederick, 1864-65, ib. 358, 370.
Devise - Construction - Implication.
[106] SOPHIA BAKER, Widow,-Appellant; MARTIN TUCKER, and Another,- Respondents [Mar. 6, 8, 12, 1849 ; July 9, 1850]. [Mews' Dig. v. 331; xv. 1049. S.C. 14 Jur. 771; and below, 11 Ir. Eq. R. 104. Followed in Sykes v. Sykes, 1871,, L.R. 13 Eq. 65; Grattan v. Langdale, 1883, 11 L. R. Ir. 484, and cf. Parker v. Tootal, 1865, 11 H.L.C. 143, 148; Watkins v. Frederick, 1864-65, ib. 358, 370.] Devise-Construction-Implication. A. devised lands in trust for J. B., a reputed son, for his life, and, after his decease, for and to his first and every other son successively in tail male, and in default of such issue to his daughter or daughters, to hold to them, if more than one, and their heirs, as tenants in common; and, in default of issue of the said J. B., to and for the testator's right heirs: Held, that J. B. took only an estate for life, and that no remainder in tail to him could be implied after the limitation to the daughters. (Blackborn V. Edgley 1 P. Williams, 605, questioned arguendo, infra, 120.) The question in this appeal related to the construction of a devise of real estates contained in the will of Henry Baker, Esq., late of the Farm, in the county of Kilkenny. By that will, dated in April 1821, the testator gave and devised all his estates and property in lands, of what nature or kind soever, and all his personal property of every kind, to Charles Kendal Bushe, Esq., his heirs, executors, administrators, and assigns, upon the following trusts:-first, as to his personal estate, to pay thereout all his debts and legacies, and pay the residue, if any, to the testator's reputed son, John Baker, his executors, administrators, and assigns; and, as to his real, freehold, and chattel or other property in lands, in trust, in tho first place, to raise and pay thereout such of his debts and legacies as his personal property, if deficient, should be insufficient to discharge; and, secondly, to raise and pay thereout two annuities of £50 each to the testator's two reputed sons, Henry Baker [107] and Arthur Baker, during their respective lives. The will then proceeded thus ò H.L.X. 41 ' 2a Ill H.L.C., 108 BAKER V. TUCKER [1850] " And, subject to- the above-mentioned charges for debts, legacies, and annuities hereby charged upon the same, I declare that the above devise of all my several properties in lands is in trust for, and I hereby devise the same to', my above-mentioned reputed son John Baker for and during the term of his natural life, and, from and after the decease of the said John Baker, for and to the first and every other son of the said John Baker lawfully issuing, according to seniority of age and priority of birth, in tail male, and, in default of such issue, to the daughter or daughters of the said John, to hold to them, if more than one, and their heirs, as tenants in common, and not as joint tenants, and in default of issue of the said John Baker, to and for my own right heirs for ever." Powers were in the will given to the said John Baker, when in possession of the said estates, to charge them with any yearly sum not exceeding £300 as a jointure for such wife as he might marry, and with any sum not exceeding £2000, as a provision for the younger children of the marriage, and also to make leases of the whole or any part thereof, in possession and not in reversion, at the best improved rents, without fine or other consideration, for a term not exceeding three lives or thirty-one years. The testator died in May 1822, without legitimate issue, leaving the reputed children in the will named, surviving, and also the respondent Martin Tucker, his nephew and heir at law. Upon the testator's death, John Baker, as his devisee, entered into possession of the freehold estates. In October 1825 he married the appellant, and by the set-[108]-tlement made on the occasion, he charged the devised estates with a yearly sum of £300 for her, and with the sum of £2000 for the younger children of the marriage. There was no issue of the marriage. In February 1844, John Baker executed and enrolled a disentailing deed, under the Act for Abolishing Fines and Recoveries (4 and 5 W. IV., c. 92, Irish), reciting that he was seised under the said will of an estate for life, with remainder to his first and other sons in succession in tail male, with remainder to his daughters and their heirs ; with remainder to himself in tail-general; and he thereby consenting thereunto as protector to the settlement creating the said estate-tail, conveyed the devised estates, of which he was then tenant in tail as aforesaid by virtue of the said, recited will, to a trustee, to the use of himself in fee. John Baker died in December 1845, without issue, having by his will, dated in March 1844, left all his freehold property and other property to the appellant for ever. She accordingly entered into possession of the freehold estates devised by the will of the original testator, as devisee in fee thereof under John Baker's will. In March 1846, the respondent Tucker filed his bill in the Court of Chancery in Ireland against the appellant and others, including the other respondent, the administrator of Henry Baker's estate, left unadministered by John Baker. The bill-after stating to' the effect above stated, and charging that, although the personal estate of Henry Baker was more than sufficient to pay his debts and legacies, his executor, John Baker, did not pay them, nor other charges affecting the real estates,-insisted that the [109] disentailing deed was inoperative, and void as against the heir at law of Henry Baker; that no other or greater estate than an estate for life was by his will given to John Baker; and that, even if he had been tenant in tail, still the deed would be inoperative for barring the estate tail, and remainders expectant thereon, inasmuch as no proper protector of the settlement was joined or consented thereto. The bill prayed that the trusts of Henry Baker's will as to his real estates might be carried into effect; that accounts might be taken of his real and personal estates, and of his debts and legacies; that the personal estate might be applied in due course of administration in exoneration of the real estates; that the respondent might be declared entitled to the real estates in fee simple, and to the rents and profits thereof received by the appellant since the death of John Baker, subject to the annuities given by Henry Baker's will, in accordance with the trusts thereof. The appellant by her answer said she believed there were judgment debts to the amount of £2000 or more charged on the real estates, and assigned to John Baker, still unsatisfied, and she claimed under his will to be at all events entitled to them^ and also to the jointure of £300 a-year under her marriage settlement. She also 42 BAKER V. TUCKER [1850] III H.L.C., 110 claimed to be entitled to the fee and inheritance of the real estates by virtue of the disentailing deed and the- will of John Baker. The Lord Chancellor of Ireland, having heard the cause, made a decree, declaring that upon the true construction of the will of Henry Baker, John Baker was entitled to his real estates for his life only, and to- no greater estate, and, on his death without issue, the respondent became entitled to them in fee, and to the [110] rents and profits thereof, as heir at law of the testator, subject to the unpaid debts, legacies, annuities, and charges in the will mentioned, and also to the appellant's jointure. And his Lordship referred it to' the Master to take the accounts prayed for by the bill; and he declared that the personal estate of the testator ought to be applied in payment of his debts and legacies, in exoneration of the real estates (11 Ir. Eq. Eep. 104). The appeal was against that decree. Mr. Humphry and Mr. J. V. Prior, for the appellant. The question here is, whether, upon the true construction of Henry Baker's will, his reputed son and devisee, John Baker, was entitled to an estate tail, either in possession or remainder, in the devised estates. If their Lordships should be of opinion that he took either of these, there could be no doubt that by the disentailing deed he acquired the fee and inheritance in the estates, and that by his will they passed to the appellant. The question turns on the effect of the limitations to the first and other sons of John Baker in tail male, and in default of such issue, to his daughters and their heirs, as tenants in common, and " in default of issue," not such issue, but issue generally of John Baker,-the event which happened,-to the testator's right heirs for ever. The appellant submits that the words " in default of issue " must be construed in their simple and literal sense to mean a general failure of issue ; the respondent, the heir at law of the testator, contends that the words do not mean a general failure of issue, but that issue must be restricted to' such issue as was before mentioned. [Ill] The limitations in this will are similar to those contained in the settlement of Peter Daly, which was recently much considered by their Lordships in the case of...
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