Taylor v Taylor
| Jurisdiction | England & Wales |
| Judgment Date | 08 June 1853 |
| Date | 08 June 1853 |
| Court | High Court of Chancery |
English Reports Citation: 43 E.R. 76
BEFORE THE LORD CHANCELLOR LORD CRANWORTH.
S. C. 22 L. J. Ch. 742; 17 Jur. 583; 1 W. R. 398.
76 TAYLOR V. TAYLOR 3DE0. K. ft 8.190. [190] taylor v. taylor. Before the Lord Chancellor Lord Cranworth. May 28, June 2, 8, 1853. [S C. 22 L. J. Ch. 742; 17 Jur. 583; 1 W. R. 398.] A testator devised real estate to trustees upon trust to sell, and as to the monies to arise by such sale, directed that they should sink into and be deemed part of the residue of his personal estate and be applied accordingly : he then bequeathed all the residue of his personal estate to the same trustees upon trust for his sons and daughters in equal proportions. One of the sons died in the testator's lifetime. Held, that the share of the deceased son in the produce of the real estate was to be deemed real estate and as undisposed of by the will, and that it went to the heir at law of the testator. The decision of Sir J. Leach in Phillips v. Phillips, 1 Myl. & K. 649, overruled. William Taylor, the testator in the cause, who died on the 4th June 1849, by his will, dated the 2d December 1848, after certain specific devises and bequests therein expressed, devised unto his wife Ann Taylor, John Seymour Taylor, and Richard Edwards, and their heirs, divers messuages farms closes or parcels of land tenements and hereditaments situate in the ty things of Burwell, Denmead, Hambledon, and Glidden, and in the parish of Farlington, in the county of Southampton, and all other his real estate not thereinbefore devised, upon trust that they, or the survivors or survivor of them, should absolutely sell the same in manner therein mentioned; and as to the monies to arise by such sale, he directed that the same should sink into and be deemed part of the residue of his personal estate, and be applied accordingly. And after certain further specific bequests therein expressed, the testator bequeathed unto his wife and J. S. Taylor and R. Edwards all the residue of his [191] personal estate and effects, and all other personal property over which he had any disposing; power (after payment of his debts and funeral expenses, and the costs of proving and executing his will, and the legacies thereinbefore bequeathed, and the costs of th& performance of the trusts therein mentioned), upon trust that they, his said wife and the said J. S. Taylor and R. Edwards, and the survivors and survivor of them, should receive and convert into money all such parts of the said personal estate as should not consist of monies or securities for money, and should stand possessed of the proceeds, thereof, and of all other the residuum of his personal estate and of the personal property he might have the power to appoint, and of the monies to arise from th& sale of his real estate, upon trust for his (the testator's) sons and daughters, namely, Henry Taylor, Edward Taylor, the said J. S. Taylor, Horatio Percy Taylor, Anna Taylor, Caroline Emma Taylor, and Emily Edwards, in equal proportions, share and share alike, and to be paid and divided amongst them accordingly. And he appointed his wife and the said J. S. Taylor and R. Edwards executrix and executors of his. said will. Edward Taylor died on the 24th May 1849, without issue, in the lifetime of his, father; and the question now brought before the Court was, to whom the one-seventh share bequeathed to him in the proceeds of the sale of the testator's real estate and in the personal estate was to go. The Plaintiffs in the suit, Jane C. E. Taylor and Mary Taylor, were the daughters, and co-heiresses at law of the testator's eldest son William Taylor the youngery who died on the 21st November 1848; and they claimed, as co-heiresses at law of the-testator, to be entitled to the one-seventh share of the proceeds of the real estate, al-[192]-leging that it had lapsed for the benefit of the heir at law of the testator; and they claimed, as two of the next of kin of the testator, to be interested in one-sixth of two-thirds of one-seventh share of the personal estate. The cause was set dowu before the Vice-Chancellor Stuart, but His Honour considered that the question had been to a certain extent dealt with by the Lord Justice Turner, when Vice-Chaiicellor, in the case of Taylor's Settlement (9 Hare, 596), arising out of the same will, and that therefore it was more fitting to be heard by the Lords Justices or by the Lord Chancellor. On the matter being mentioned to the Lords Justices, they considered that the reason which had induced the Vice- SDBCt.JHa 0.198. TAYLOR V. TAYLOR 77 Chancellor to decline hearing it made it more proper to be taken at once to the Lord Chancellor. Mr. Craig and Mr. W. D. Lewis, for the Plaintiffs. They submitted that the authorities previous to Phillips v. Phillips (1 Myl. & K. 649) were clearly in favour of the right of the heir at law; Digby v. Legard (3 P. W. 22, n.), Ackroijd v. Smithson (1 Bro. C. C. 503), Mallabar v. Mallabar (Ca. temp. Talb. 78), Durour v. Motteux (1 Ves. 320, and 1 S. & S. 292, n.), Robinson v. Taylor (2 Bro. C. C. 589), Collins v. Wakeman (2 Ves. jun. 683), Amphlett v. Parke (2 Russ. & Myl. 221). They contended that the decision of Sir J. Leach in Phillips v. Phillips was wrong; that it had been disapproved of, Cogan v. Stephens (5 Law J. Chanc. 17 ; Lewin on Trustees, App. 698), Williams v. Williams (5 Law J. Chanc. 84), or at all events had not been followed, Gordon v. Atkinson (1 De G. & S. 478), Flint v. Warren (16 Sim. 124), [193] Fitch v. Weber (6 Hare, 145), Shallcross v. Wright (12 Beav. 505), and that it ought now to be...
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