Stubbs v Sargon
| Jurisdiction | England & Wales |
| Judgment Date | 25 March 1840 |
| Date | 25 March 1840 |
| Court | High Court of Chancery |
English Reports Citation: 40 E.R. 1022
HIGH COURT OF CHANCERY
S. C. 2 Keen, 255; 6 L. J. Ch. (N. S.), 254; 7 L. J. Ch. (N. S.), 95; 2 Jur. (O. S.), 150.
[507] stubbs v. sargon. Jan. 24, 31, 1838. [S. C. 2 Keen, 255; 6 L. J. Ch. (N. S.), 254; 7 L. J. Ch. (N. S.), 95; 2 Jur. (O. S.), 150.] A testatrix devised to trustees, then: heirs and assigns, her copyhold dwelling-house, garden and ground, together with the furniture, and effects therein, and the coach-house and stable thereto belonging; and also the ten cottages, and two new cottages built by her, with their appurtenances, at L. ; to hold the same with the appurtenances, unto and to the use of the trustees, their fairs and assigns, upon trust, that they or the survivors or survivor, or the heirs or assigns of the survivor, should pay the rents, issues, and profits of the said hereditaments to Sarah S., wife of George S., or otherwise permit and suffer her to use and occupy the said hereditaments during her life, to the intent that the same hereditaments and the rents, issues, and profits thereof might be for her sole and separate use, &c.; and after her decease in trust for George S., for his life; and after his decease upon trust that the trustees or the survivors or survivor of them, and the heirs and assigns of such survivor, should bo possessed of and interested in the said hereditaments, in trust for such persons, of a certain class, as Sarah S. should by will appoint and, in default of appointment, upon trust, that the trustees or the survivors or survivor of them, and the fairs or assigns of such survivor, should sell and dispose of the, said hereditaments and premises; and the testatrix directed that the produce of the sale should form part of her residuary personal estate. Held, that no beneficial interest in the furniture and effects passed by the will. The testatrix devised certain freehold premises, in which she carried on trade, to trustees in fee, upon trust (after the decease of a person to whom she gave the beneficial interest therein for life), to dispose of and divide the same unto and amongst her (the testatrix's) partners, who should be in co-partnership with her at the time of her decease, or to whom she might have disposed of her business, in such shares and proportions as her trustees should think fit or (sic) deem advisable. The testatrix disposed of her business in her lifetime. Held, that the devise in favour of the persons to whom she might have disposed of her business was not void, either under the Statute of Frauds, or on the ground of uncertainty. The testatrix being entitled to the sum of £2000, secured by a promissory note which had two years to run, endorsed the note to Sarah Sargon, and sent it to her, with a letter in the following terms :-" The enclosed note of .£2000 I have given to Mrs. Sarah Sargon for her sole use and benefit, independent of her husband, for the express purpose of enabling Mrs. Sargon to present to either branch of my (sic) family any principal or interest thereon, as the said Mrs. Sarah Sargon may 3 MY. tc OR. Ml. STUBBS V. SARGON 1023 consider the most prudent; and in the event of the death of Mrs. Sarah Sargon, by this bequest I empower her to dispose of the said sum of £2000 and the interest, by will or deed, to those or (sic) either branch of the family she may consider most deserving thereof. To enable Mrs. Sarah Sargon, my niece, to have the sole use and power of the said sum of £2000 due to me by the above note of hand, I have specially indorsed the same in her favour." It being admitted that if this was a gift upon trust, the trust could not be executed. Held, that it was a gift upon trust, and that, as the trust failed, the sum secured by the note constituted part of the testatrix's estate. In this cause several questions arose upon the will of Mrs. Elizabeth Ives. The material parts of the will and the questions which arose upon it are stated [508] in the second volume of Mr. Keen's Reports (2 Keen, 255), where will also be found a statement of the arguments used before the Master of the Rolls, and his Lordship's decision. An appeal from that decision, upon the first, second, and fourth of the questions stated in the report, was presented to the Lord Chancellor. It should be mentioned that the terms in which the trusts declared of the property comprised in that part of the will upon which the first question arose-after the death of George Sargon-were these, viz., upon trust for that the trustees, or the survivors or survivor of them, ami the heirs and assigns of such survivor, should be possessed of and interested in the said hereditament*, in trust for such one or more of the testatrix's nephews and nieces, or grand-nephews or grand-nieces, as Sarah Sargon should by will appoint; and in default of appointment, upon trust that the trustees, or the survivors or survivor of them, and the heirs or assigns of such survivor, should sell and dispose of the said hereditaments anil premises. It is proper also to state that the testatrix gave her stock-in-trade, and the implements, utensils, carts and horses used in her business, to her executors, upon trust for sale; but with liberty for her partners, or the person or persons who, at the time of her decease, [509] should be entitled to her freehold and leasehold premises under her will, to purchase the same at a valuation. It is also to be mentioned that, by a circular-letter of the 1st of April 1833, the testatrix notified to her customers her retirement from business, and recommended her surviving nephews, and the widow of her deceased nephew, Mr. Innell, as her successors. These persons were Samuel Silver, Thomas Cooke, John Ives, and Ann Abigail Innell, widow of John Dialls Innell. The testatrix died on the 17th of April 1833. The arguments used upon the appeal were to the same effect as those which had been urged in the Court below. Sir C. Wetherell and Mr. Wakefiekl, for the heiress at law. Mr. Spence and Mr. Walker, Mr. Tinney and Mr. Richards, Mr. Knight Bruce, Mr. Parker, Mr. Teed, Mr. Rogers, Mr. Bethell, and Mr. Hill, for other parties. Jan. 31. the lord chancellor [Cotteriham]. Three questions were raised on this appeal. The first was, Whether the furniture and effects in the copyhold premises were bequeathed with the copyhold premises for the benefit of the parties to whom the copyhold premises were devised 1 I think not. They are included in the devise to the trustees ; but the trusts are declared only of " the hereditaments aforesaid," and of "the rents, issues, and profits thereof;" and the power of sale is given, not to the personal representatives, but to the heirs and assigns of the survivor of the trustees. It is [510] probable that the testatrix intended that the furniture and effects should accompany the copyholds; but she has omitted to declare such to be her intention. I am therefore of opinion that they are not included in the gift. The second question is, Whether the ultimate devise of the premises in Little Queen Street be void, either under the Statute of Frauds, or for uncertainty 1 The earnestness with which the point was pressed at the Bar by very eminent and learned counsel has induced me to devote more consideration to the subject than I should have thought necessary from any difficulty I have felt upon the point itself. The devise is to trustees to keep in repair the premises, and, subject thereto, to pay the rents to the testatrix's sister, Mary Innell, during her life, and, after her decease, in trust to dispose of and divide the same unto and amongst her partners who should be in co-partnership with her at the time of her decease, or to whom she might have disposed of her business, in such shares and proportions as her trustees should think fit and deem advisable. 1024 STUBBS V. SAHGON 3 MY. tc OR. 511. She gave her stock-in-trade to her executors to sell, but with liberty for her partners, or the persons who should be entitled to her freehold premises under her will, to purchase the same at a valuation. She gave the residue of her personal estate amongst certain of her nephews and nieces ; but provided that such of her nephews as should be entitled to any beneficial interest in her freehold premises under her will should have only one-half of the shares of the others. Upon the first head of objection, namely, the Statute of Frauds, it was argued that the will contained no disposition of itself, but that it was a reservation to the testatrix of the power of completing the devise by in-[511]-vesting the intended devisee with the character described in the will, and that Habergham v. Fincent (2 Ves. jun. 204; and 4 Bro. C. C. 353) was in point in support of that proposition. The difference between the two cases is, that the will in Hakwgham v. Vincent contained no devise of the remainder; it only declared that the remainder should be for such persons and for such estates as the testator should, by any deed or instrument attested by two witnesses, appoint. This was no disposition of the property; but a reservation by will, inoperative till the testator's death, of a power to dispose, in his lifetime, of freehold property, by an instrument not attested according to the Statute of Frauds. In the present case, the disposition is complete. The devisee, indeed, is to be ascertained by a description contained in the will; but such is the case with many unquestionable devises. A devise to a second or third son, perhaps unborn at the time-many contingent devises-all shifting clauses-are instances of devises to devisees who are to be ascertained by future events and contingencies; but such persons may be ascertained, not only by future natural events and contingencies, but by acts of third persons. Suppose a father, having two sons, and having a relation who has a power of appointing an estate to some one of them, makes his will, and gives his own estate to such one of his sons as shall not...
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