Sophia Phipps, Widow, - Appellant; George Holland Ackers, - Respondent
| Jurisdiction | England & Wales |
| Judgment Date | 11 August 1842 |
| Date | 11 August 1842 |
| Court | House of Lords |
English Reports Citation: 8 E.R. 539
House of Lords
Mews' Dig. i. 353; xiv. 1524. S.C. 3 Cl. and F. 702; and, in Ch., 5 Sim. 44; 1 L.J. Ch. 96. Followed in Whitter v. Bremridge, 1866, L.R. 2 Eq. 737; Finch v. Lane, 1870, L.R. 10 Eq. 503. Distinguished in Williams v. Haythorne, 1871, L.R. 6, Ch. 786; and Andrew v. Andrew, 1875, 1 Ch.D. 414. And see In re Orlebar's Settlement Trusts, 1875, L.R. 20 Eq. 711.
Will - Executory Devise - Vesting.
[583] SOPHIA PHIPPS, Widow,-Appellant; GEORGE HOLLAND ACKERS - Bespondent [Aug. 18, 31, 1835; May 10, June 30, Aug. 11, 1842]. [Mews' Dig. i. 353; xiv. 1524. S.C. 3 Cl. and F. 702; and, in Ch., 5 Sim. 44; 1 L.J. Ch. 96. Followed in Whitter v. Bremridge, 1866, L.R. 2 Eq. 737; Finch v. Lane, 1870, L.R. 10 Eq. 503. Distinguished in Williams v. Haythorne, 1871,, L.R. 6, Ch. 786; and Andrew v. Andrew, 1875, 1 Ch.D. 414. And see In re Orlebar's Settlement Trusts, 1875, L.R. 20 Eq. 711.] Will-Executory Devise-Vesting. A testator gave all his real and personal estates to trustees; and as to his lands at W., which he held in fee simple, he directed that the trustees should stand seised thereof, in trust to convey the same to G. H. A., " when and as soon as he should attain his age of 21 years; " but in case he should die before he attained that age, without leaving issue of his body, then that the said lands at W., given and devised to him, should sink into the residue of the testator's real and personal estates: and he gave the residue to J. C. At the testator's death G. H. A. was only 12 years of age.- Held, that an equitable estate in fee in the lands at W. vested in G. H. A. immediately on the testator's death, liable to be devested in the event of his dying under 21 without leaving issue of his body. James Ackers, by his will, dated the 13th of April 1822, gave and devised all his freehold, copyhold and leasehold messuages, lands and tenements, to trustees, upon certain trusts therein declared, except the lands, hereditaments and premises thereinafter devised unto his godson, George Holland Ackers; as to which the will proceeded thus: " And as to, for and concerning all my messuages, lands and premises situate, lying and being at Wheelock, in the county of Chester, they my trustees shall stand seised and be possessed thereof in trust and to the intent and purpose to assign, convey and assure the same unto my godson, George Holland Ackers, eldest son of my nephew George Ackers, when and so soon as fie, my said godson, shall attain his age of 21 years; and also do and shall pay unto my said godson, G. H. [584] Ackers, the sum of 7000 at and upon his attaining his said age of 21 years. But in case my said godson, G. H. Ackers, shall depart tJiis life before he attains the said age of 21 years without leaving issue of his body, lawfully to be begotten, then and in such case the said messuages, lands and premises in Wheelock aforesaid, hereinbefore given and devised to him, together with the said sum of 7000, shall sink into and become part of the residue of my real and personal estate, and go according to the disposition thereof hereinafter expressed and contained." The residue of the real and personal estate was then by the will given to James Coops. The testator died in 1824, leaving the said G. H. Ackers, who was then about 12 years of age, and attained his age of 21 years in 1833. In 1831 Mrs. Phipps, the testator's heiress at law, filed a bill in Chancery against the acting trustee and G. H. Ackers and others, stating the said will, and also, among other things, that the rents received by the trustee in respect of the Wheelock estate amounted to a considerable sum. The bill prayed, among other things, that it might be declared that the plain- 539 IX CLARK & FINNELLY, 686 PHIPPS V. ACKERS [1835, 1842] tiff was entitled to the rents and profits of the messuages and lands at Wheelock, from the death of the testator until such time as the infant defendant, G. H. Ackers, should attain 21 years of age. To that bill G. H. Ackers demurred for want of equity, and the Vice-Chancellor allowed the demurrer (5 Sim. 44). The appeal against his Honor's order was argued in August 1835, but on Lord Brougham's recommendation, judgment was postponed (vol. iii. ante, p. 702). The appeal came now to be re-argued by one [585] counsel of a side, in presence of the Common-law Judges (Lord Chief Justice Tindal; Justices Williams, Patteson, Coleridge, Erskine, Coltman, and Wightman; Barons Parke, Gurney, Rolfe, and Maule). Mr. West, for the Appellant, after recapitulating the proceedings that had taken place in the case, as mentioned in the Reports before referred to, and after reading the devise of the Wheelock estate as above set forth, said,-The sole question is, what estate did the Respondent take under that devise; was it vested, or contingent on his attaining the age of 21 years? If he took a vested interest on the death of the testator, then he was entitled to the rents and profits from that time till he attained his full age, when the estate was to be conveyed to him; but if the estate did not so vest, but was in contingency until he attained 21, the heiress at law, or her repre -sentative, after her death, was entitled to the intermediate rents and profits. The words " when and so soon as he shall attain his age of 21 years," cannot be grammatically construed to vest a present interest. These words must be expunged before that construction can be put on this devise. The word " wjhen " has been always held to create a condition precedent, except where an antecedent particular estate is given out of the property. The provisions of the will showed that it was not the testator's intention to give any estate to the Respondent until he attained his age ; the legal estate being devised to trustees, in trust, to convey it to him when he should attain that age, and there being no direct gift to him before that period. [The learned counsel, in the course of his argument, [586] (which was much to the same effect as Mr. Preston's at the former hearing (vol. iii. ante, p. 703 et seq.) ) referred to and analysed the following among other cases, distinguishing such of them as were analogous with the present case from those which were not, viz. Boraston's case (3 Rep. 19); Grant's case, cited in Lampet's case (10 Rep. 50 a.), and in Cruise on Fines (p. 183. (3d ed.) ); Johnson v. Bellamy (Cro. Eliz. 122; 2 Leon. 36); Taylor v. Biddal (Ch. Gas. 188); Edwards v. Hammond (3 Lev. 132; S. C. 1 New Rep. 324, n.); Goodtitle v. Whitby (1 Burr. 228); Bromfield v. Grander (1 New Rep. 313); Fearne's Post. Works (p. 191); Doe v. Lea (3 T. Rep. 41); Stephens v. Stephens (Cas. Temp. Talb. 229); Gibson v. Lord Montfort (1 Ves. sen. 485 ; Amb. 93); Bullock v. Stones (2 Yes. sen. 521); Doe v. Nowell (1 Maule and S. 327; 5 Dow, 202); Doe v. Moore (14 East, 601), (which he contended was a wrong decision, and not sustained by the cases therein referred to); Hanson v. Graham (6 Ves. 239); Stanley v. Stanley (16 Ves. 491); Chambers v. Brailfo-rd (18 Ves. 368); Leake v. Robinson (2 Meriv. 363); Duffield v. Elwes (2 Sim. and Stu. 244); Duflield v. D-uffield (1 Dow and Clark, 268, 309 ; S. C. 3 Bli. N. S. 360); Genery v. Fitzgerald (Jacob, 468); Yaw-dry v. Geddes (1 Russ. and Myl. 203).] Sir C. Wetherell, with whom was Mr. J. Russell, for the Respondent:-If G. H. Ackers should die under 21 and without issue, the Wheelock estate was to pass to the residuary devisee, James Coops; but if G. H. Ackers attained 21, the trustees were to convey the estate to him; or if he died under 21, leaving [587] issue, the issue were to take it; and yet it is contended that this was not a vested estate. It is sufficient to look at the will, without the aid of cases, to see that this was a vested estate, because it is manifest that the ancestor must take in order that the issue might take, unless the solecism is to be supported that an heir can take as heir without an ancestor. All the cases cited, from Boraston's, downwards, have turned on the construction of the word " when," without the additional contingency in this case, of dying without issue; and even if that were wanting, we should nevertheless maintain, upon the authorities, that the; estate in this case vested. With regard then to the argument on the other side, that the word " when " constitutes a condition precedent unless a previous estate for life or years is first carved out of the...
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