Stanley v Stanley
| Jurisdiction | England & Wales |
| Judgment Date | 26 July 1862 |
| Date | 26 July 1862 |
| Court | High Court of Chancery |
English Reports Citation: 70 E.R. 1152
HIGH COURT OF CHANCERY
S. C. 10 W. R. 857. Observed upon, In re Seal [1894], 1 Ch. 316.
Will. Construction. Mistake. Issue devisavit vel non. Evidence.
[491] stanley v. stanley. June 27, 28, July 26, 1862. [S. C. 10 W. E. 857. Observed upon, In re Seal [1894], 1 Ch. 316.] Will. Construction. Mistake. Issue devisavit vel non. Evidence. In construing a will of real estate the Court will look at the nature and circumstances of the property and at the value of the subjects of the various devises, and if the whole will, read by the light of such circumstances, discloses an intention inconsistent with restrictive words in the description of the subject of a devise, those restrictive words may, as a matter of construction, be rejected as/afe demonstratio. Evidence of the intention of a testator or of mistake in the preparation of his will is not admissible, and an issue will not be directed on this ground to try whether particular restrictive words were or were not part of the will. Where a will contained a devise of hereditaments "in the county of Hants," described as " my Tedworth estate," and it was proved that the testatrix had an estate at Tedworth extending into the two counties of Hants and Wilts, but which had been dealt with without regard to the county division, and the will contained various indications derived from the limitations of the estate and the value of the Hants and Wilts portions of it, tending to shew that the testatrix must have intended to deal with the whole estate : Held, that, although no one of these circumstances alone would have controlled the words of the devise, their cumulative force was sufficient to justify the rejection of the words "in the county of Hants" as falsa demonstratio. 2J.&H.492. STANLEY V. STANLEY 1153 Where a bill is not framed to establish a will and the heir does not dispute it: Senible, that the Court has no jurisdiction to declare against the heir as a Defendant the construction of a strictly legal devise as regards the quantum of the subject-matter. But if the heir elects to be dismissed, the Court will make such a declaration for the guidance of the trustees. This was a bill filed to obtain a declaration as to the construction of the will of Matilda Assheton Smith, and also praying that issues might be directed whether certain words were part of the will. Thomas Assheton Smith the younger was possessed of a mansion-house and an estate of great value, called Vaenol, near Bangor, in Wales, and also of a mansion-house at Tedworth in the county of Hants, and adjoining property situate partly in the same county and partly in the county of Wilts. A portion of the Tedworth property was purchased by himself and the remainder of the property and the whole of the Welsh property descended from his father. By his will, dated the 22d of July 1857, he described himself as "of Tedworth House in the county of Southampton," and devised to his wife, Matilda Assheton Smith, all his "lands and hereditaments at or near Tedworth," charged with certain annuities of the aggregate amount of 680, including an annuity of 50 to his valet, Atwell; and also devised and bequeathed to his said wife " all other his real and personal estate." The testator died on the 15th of September 1858. [492] The said Matilda Assheton Smith made her will, dated the 9th of November 1858, which, so far as material, was as follows :- " This is the last will and testament of me, Matilda Assheton Smith, of Vaenol in the county of Carnarvon, and of Tedworth in the county of Hants, widow of Thomas Assheton Smith, Esquire, late of Vaenol and of Tedworth aforesaid, now deceased. I give and devise the mansion-house at Vaenol, near Bangor, and all the manors, messuages, farms, slate quarries, lands, tenements, and hereditaments in the Principality of Wales, devised to me by the will of my said late husband, and all other hereditaments in the said principality (if any) of or to which I shall be seised or entitled, or as to or over which I shall have power of disposition by my will at my death. ... To the use of F. Drummond and Thomas Best (the trustees for my Tedworth estate hereinafter devised), their executors, administrators, and assigns, for the term of 500 years computed from the day of my death, without impeachment of waste, for the purpose of raising from and out of my said Welsh estates, by or under the trusts hereinafter declared of the said term, the sum of 40,000, and for raising and securing interest thereon at the rate of 4 per cent, per annum in the meantime." After which the uses of the Welsh estates, subject to the term, were declared, and the trusts of the term were declared as follows :- "Upon trust that they the said trustees, or the survivor of them, or the executors or administrators of such survivor, or their or his assigns, shall at such time after my death as shall be found convenient, by mortgage of all or any part of the said hereditaments or estates comprised in the said term of 500 years, for the whole or any part of the said term, raise the said sum of 40,000, which I intend to be an addition to my Tedworth estates hereinafter devised, and to be disposed of accordingly in manner hereinafter [493] directed." Then followed directions as to the mode of raising the said sum, and for raising and paying interest thereon in the meantime at the rate of 4 per cent, per annum, and, subject to the said trusts, to permit the persons entitled under the limitations thereinbefore contained to receive the rents and profits, and a proviso for cesser of the term, subject to any mortgage made thereof, so soon as the said sum of 40,000 and interest as aforesaid should have been raised; and after other clauses the will proceeded as follows :- " I give and devise my mansion-house at Tedworth in the county of Hants, and all my manors, farms, lands, tenements, and hereditaments in the county of Hants devised to me by the said will of my said late husband (subject to the annuities charged thereon by such will, and subject to an additional or further annuity of 50 per annum to be payable to Atwell, the valet of my late husband, during his life as hereinafter mentioned), and all other hereditaments in the said county of Hants of or V.-C. xv.-37 1154 STANLEY V. STANLEY 2 J. & H. 494. to which I shall be seised or entitled, or as to or over which I shall have a disposing power by any will at the time of my death (all which hereditaments in the county of Hants are hereinafter described or referred to as my Tedworth estate) to the uses and subject to, with, and under the provisoes, powers, and devises hereinafter contained." The first of these uses was to the use of Francis Sloane Stanley, the Plaintiff (then and now an infant), for life, without impeachment of waste, with remainder in strict settlement to his first and other sons, and limitations over. The will contained a direction that, if the tenant for life or in tail male, or in tail by purchase, for the time being entitled in possession to "my said Tedworth estate" should die under the age of twenty-one years, "the said F. Drummond and Thomas Best [494] (the trustees for my said Tedworth estate) or the survivor of them, or the executors or administrators of such survivor, or their or his assigns," should enter into the possession and management of the same estate during the minority, and out of the proceeds pay to the guardians of the tenant for life or in tail so much as should be required for his maintenance, education and advancement during minority ; " and I direct that the allowances for the purposes aforesaid shall be on the most liberal scale, and shall be made whether the minor entitled as last aforesaid shall or shall not have a father living and capable of maintaining him or her." The residue of the income was directed to be accumulated, to be paid to such minor on attaining twenty-one, or to his executors in the event of the minor being a tenant in tail dying under that age and leaving issue inheritable, but otherwise to be disposed of as thereinafter directed concerning the proceeds of the sale of " my said Tedworth estate or any of the hereditaments comprised therein under the power of sale hereinafter contained." Then followed a clause empowering every male tenant for life of " my Tedworth estate " to appoint a jointure or jointures not exceeding in the whole 500 in favour of any and every woman he should marry ; with a proviso that " if the same hereditaments would under this power be liable at any one time to the payment of a larger yearly sum in the whole than 1000, then the posterior charge or charges shall not take effect or shall only partially take effect in possession until the amount of the previous charge shall cease or be diminished, so as always to limit the existing annual charge to the sum lastly specified." There was also a power to every tenant for life to charge portions for younger children, not exceeding 5000 for one child, 10,000 for two, 15,000 for three, or 20,000 for four or more, with a similar proviso that not more than 40,000 of such charges should be subsisting and effective [495] at any one time. There were also powers of sale and exchange of " my said Tedworth estate," any proceeds to be applied first in discharging incumbrances and then in the purchase of freehold hereditaments in fee-simple in England or Wales, or copyhold or customary premises or long leaseholds "convenient to be held with the hereditaments comprised in my said Tedworth estate," or to be acquired under the trusts of the will, the same to be settled on the uses declared of " the hereditaments comprised in my said Tedworth estate hereinafter devised." And as to the charge of 40,000 directed to be raised " out of my said Welsh estates," the trustees were to apply the same "in the purchase of freehold lands and hereditaments near to or adjoining my said Tedworth estate or elsewhere in the said...
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