Swift v Swift
| Jurisdiction | England & Wales |
| Judgment Date | 12 December 1859 |
| Date | 12 December 1859 |
| Court | High Court of Chancery |
English Reports Citation: 45 E.R. 320
BEFORE THE LORD CHANCELLOR LORD CAMPBELL.
S. C. 29 L. J. Ch. 121; 1 L. T. 150; 8 W. R. 100.
[160] swift v. swift. Before the Lord Chancellor Lord Campbell. Dec. 2, 3, 12, 1859. [S. C. 29 L. J. Ch. 121 ; 1 L. T. 150; 8 W. R. 100.] A testator gave all his real estate, situate as described in his will, to trustees, to have and to hold to them and the survivor of them for ever, or otherwise, according to the several and respective natures and tenures thereof on certain trusts. Held, that the leasehold as well as the freehold property of the testator at the place mentioned passed. One of the next of kin of a testator instituted a suit for the administration of his estate, and obtained a decree directing enquiries whether the testator died seised of any freehold estate, and, if necessary, who was his heir at law. The heir at law, on being served with notice of the decree, came in and proved her pedigree. Held, that she was entitled to her general costs of so doing. This was the appeal of the heiress at law of the testator in the cause, and her husband, who had been served with the decree, from an order of the Master of the Rolls made on further consideration, so far as that order declared that certain legacies of £200 and J200 each were charged exclusively on the freehold estate of the testator; and so far as the order omitted to give the Appellants their costs of proving the pedigree of the heiress at law. The material parts of the will of the testator, dated the 17th August 1833, were in the terms following:-" In the first place, I give and devise all my real estate lying and being within Foxup, in the township of Halton Gill aforesaid, unto my distant cousin Thomas Farnhill and Joseph Stocks, to have and to hold to them the said Thomaa Farnhill and Joseph Stocks, and the survivor of them for ever or otherwise, according to the several and respective natures arid tenures thereof; in trust nevertheless, and to and for the only proper use and behoof of the persons hereinafter mentioned, and subject to such conditions as shall be herein expressed. Also my will and mind is, and I do hereby order and direct, that the said Thomas Farnhill and Joseph Stocks, or the survivor of them, shall, as soon as convenient after my decease, be empowered, and they are hereby empowered to sell my real estate herein above mentioned, subject nevertheless to and charged and chargeable with the sum of JE200 IDEftP.feJ.in. SWIFT V. SWIFT 321 of lawful [161] British money, unto my cousin Henry Swift, or his lawful issue; and in case there be more than one, then the said £200 to ba equally divided amongst them, share and share alike, be they male or female. Also, I do hereby charge my said estate with the further sum of £200 of like money to be paid unto the lawful issue of my late cousin Mary Swift, sister of the above-named Henry Swift, to be equally divided amongst them, if more than one, male or female, share and share alike. And in case the said legatees be either or both of them dead without leaving issue as aforesaid, then my will and mind is that the said legacy or legacies of £300 or £400 as the case may be, be paid to the nearest akin on my mother's side ; the said legacies to be paid at the end of twelve months after my decease, if convenient. Likewise, I hereby give and bequeath all my personal estate unto the said Thomas Farnhill and Joseph Stocks, they paying thereout all my just debts, funeral expenses and probate of this my "will, if the same will extend so far; but if not, then I hereby will, order and direct that the deficiency shall be paid out of the" rents, issues and profits of my real estate. And in that case my will and mind is, that the said Thomas Farnhill and Joseph Stocks shall have all their reasonable charges and expenses anyway incurred by or by reason of the execution of this my will." " When all debts have been discharged as aforesaid, then my will and mind is, that the residue- and remainder of all monies arising from the sale of my real and personal estate be equally divided by the said Thomas Farnhill and Joseph Stocks, between Anne Colbeck of Carlinghow, and Mary the wife of John Schofield of Gomersall, in the parish of Bifstall. ' Lastly, I do hereby constitute, nominate and appoint the said Thomas Farnhill and Joseph Stocks, executors of this my last will and testament." [162] The testator afterwards signed an unattested codicil, dated the 2d February 1837, which was as follows :- " Whereas I, Thomas Lindley, of, &c., did, by my last will and testament in writing, dated the 17th August 1833, give and bequeath unto my cousin Henry Swift and his sister Mary Swift, before she was married, the sum of £400, and in case they and their issue were extinct, to their nearest relations. Now my will and mind is, as it then was, that my distant cousin James Swift, of, &c., should take, receive and enjoy the said £400 in such manner as my said cousins and their issue should have received the same." Thomas Lindley, the testator, died on the 8th January 1847, having survived both the residuary legatees named in his will; and letters of administration of his estate and effects, with the will and codicil annexed, were soon afterwards taken out by James Swift, the legatee named in the codicil. The Plaintiff in the present suit claimed to be one of the next of kin of the testator, and by his bill alleged that the testator, by reason of the death in his lifetime of the residuary legatees named in his will, had died intestate as to the whole of his estate, except as to the two legacies of...
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