The Trusts of the Annuity of £600 given by the Will of John Wynch, deceased, and The Act 10 & 11 Vict c. 96. ex parte Wynch
| Jurisdiction | England & Wales |
| Judgment Date | 14 June 1854 |
| Date | 14 June 1854 |
| Court | High Court of Chancery |
English Reports Citation: 43 E.R. 842
BEFORE THE LORD CHANCELLOR LORD CRANWORTH AND THE LORDS JUSTICES.
S. C. 23 L. J. Ch. 930; 18 Jur. 659. See In re Jeaffreson's Trusts, 1866, L. R. 2 Eq. 280; Surridge v. Clarkson, 1866, 14 W. R. 980; In re Barker's Trusts, 1883, 52 L. J. Ch. 567.
[188] In the Matter of the trusts of the annuity of 600 given by the will of john wynch, deceased, and In the Matter of the act 10 & 11 vict. c. 96. Ex parte wynch. Before the Lord Chancellor Lord Cranworth and the Lords Justices. March 18, 25, 29, April 21, June 14, 1854. [S. C. 23 L. J. Ch. 930; 18 Jur. 659. See In re Jea/reson's Trusts, 1866, L. E. 2 Eq. 280; Surridge v. Clarksm, 1866, H W. R. 980; In re Barker's Trusts, 1883, 52 L. J. Ch. 567.] Bequest to A. M. a married woman of an annuity " for her life and the issue from her body lawfully begotten on failure of which to revert to my heirs," with a request that K. and C. would act as trustees for A. M. so that the annuity might be secured for her sole use and benefit. Held, by the Lord Chancellor and the Lord Justice Turner, the Lord Justice Knight Bruce giving no opinion on the point, that A. M. took an interest for life only with a gift in the nature of a remainder to her issue. Held, by the Lord Justice Turner, that according to the true construction of the devise the life interest of A. M. was merely equitable and the interest of the issue legal, and that therefore A. M. could not have taken an estate tail even if the devise had been of real estate; and also, that, admitting the annuity to partake of the nature of real estate, it did not follow that in construing the will it ought to be treated as real estate, for that it was in fact personal estate with peculiar incidents belonging to it in that character. There is- nothing in the decisions relative to the limitations of personal estate by which an absolute interest has been held to be given to the first taker, which obliges the Court in construing bequests of personalty, where technical words are not used and the interest of the first taker is expressly confined to a life-estate, to act on principles derived from laws of tenure and not resting on intention.-By the Lord Chancellor. The Court, in construing a disposition by will of personal estate, is not to be absolutely governed by the rules which would be applied at law in the case of real estate.-By the Lord Justice Turner. 8 DE G. M. * O. 9. EX PARTE WYNCH 843 The decision of Lord Thurlow in Knight v. Ellis, 2 Bro. C. C. 570, approved of and held not to have been overruled; and the cases of The Attorney-General v. Bright, 2 Keen, 57, Tate v. Clarke, 1 Beav. 100, Jordan \. Lowe, 6 Beav. 350, and Bird v. Webster, 1 Drew. 338, commented upon.-By the Lord Chancellor and the Lord Justice Turner. This was an appeal from the decision of Vice-Chancellor Stuart, on a petition presented by the Rev. Henry Wynch as the representative of George Wyuch, praying for payment to him of a sum of 12,600 3, 5s. per cent, annuities standing to the credit of this matter, the amount of a fund paid into Court under the above-mentioned Act by the surviving trustee thereof, and 993, 17s. lid. cash the dividends of the stock. [189] The case waa by arrangement discussed as if the parties opposing the claim of the Petitioner had presented a cross-petition. The question arose under the will of John Wynch, late of Vellore in the East Indies. The testator by his will, dated the 8th March 1796, after directing the payment of his funeral and testamentary expenses, &c., proceeded to make the following bequest:-" I give and bequeath to my good and virtuous friend Anna Maria Mealy now wife of Ridgway Mealy Lieutenant and Fort Adjutant of Vellore in the Hon. East India Company's service an annuity of 600 sterling to commence six months after my decease for her life and the issue from her body lawfully begotten on failure of which to revert to my heirs. And I have to request that my very good friends Nathaniel Edward Kindersley Esq. and Thomas Cockburn Esq., will act as trustees for the said Anna Maria Mealy so that the said annuity may be secured for her sole use and benefit and that it may be paid to her quarterly or half-yearly as they may deem proper : " and the testator appointed his brothers George Wynch and James Wynch his executors and residuary legatees. The testator died in 1797, and his executors proved his will in India, and subsequently in England. By an indenture, dated the 8th March 1798, and made between the executors of the one part, Adrian de Fries and John De Fries of Madras merchants of the second part, and the said N. E. Kindersley and T. Cockburn of the third part, after reciting the will, and that the said N. E. Kindersley and T. Cockburn had declined accepting the trusts of it for a longer period than the natural life of Mrs. Mealy, the executors assigned to the said Adrian De Fries and John De Fries [190] their heirs executors and administrators the sum of 20,000 star pagodas part of the testator's estate upon trust to pay out of the interest and produce of that sum the annuity of 600 to the said N. E. Kindersley and T. Cockburn their heirs executors or administrators for the sole use and benefit of Mrs. Mealy during her life, and after her decease to repay the principal sum of 20,000 star pagodas to the executors who thereby bound themselves their heirs executors or administrators upon such repayment to cause the said annuity of 600 to be paid to such issue of the body of Mrs. Mealy as. should or might be lawfully begotten during the time of his her or their natural lives or the lives of the survivor or survivors to each an equal part or share with benefit of survivorship agreeably to the true meaning and intent of the will in such manner as they would have been bound to do if that deed had not been made : it was also provided by this deed, that if the executors should find it advantageous to the estate to remit the principal sum of 20,000 pagodas to England, and to place the same in the public funds, with such other and further sum as might be sufficient to produce an interest equal to the annuity, it should be lawful to the parties to enter into such other and further agreement as might be requisite for that purpose. This indenture was executed by the executors only. The husband of Mrs. Mealy died in 1805, and in 1808 Mrs. Mealy married Mr. Hare Naylor. By a settlement made on occasion of this marriage, dated the 16th December 1808, and which recited the will and also the deed of 1798, and in particular the trusts of that deed as above set out, Mrs. Mealy assigned to N. E. Kindersley and T. Cockburn and two others the annuity of 600 " given and bequeathed by the will [191] of the said John Wynch to or in trust for her and the issue of her body " upon trust to pay the same to herself for her life for her separate use and after her decease " upon the trusts by the will of the testator directed and declared of and concerning the same." 844 EX PABTE WYNCH 8 DE 0. M. * 0.192. In 1809 the trustees under the last-mentioned settlement filed a bill against the executors, Mrs. H. Naylor and her husband, and a child of the marriage then born, for the purpose of compelling the executors to vest in the English funds as much money as would produce the annuity of 600, and in this bill it was suggested that Mrs. H. Naylor claimed to be entitled to the annuity, not for her life only but absolutely. In the deed of 1798, and in the marriage settlement of 1808, it had been taken for granted that the annuity was for life only. The executors had refused to make the investment required in the English funds, inasmuch as it would occasion a, great loss to them as the residuary legatees of the testator's estate, and they also insisted upon a right to compel Mrs. H. Naylor to accept her annuity from the 20,000 star pagodas in India according to the deed of 1798. James Wynch died in 1811, and George Wynch was his administrator. In March 1812, it was agreed, between Mrs. H. Naylor her husband the trustees and George Wynch the surviving executor, that upon a proper investment being made in the public funds of Great Britain for answering the annuity of 600, the suit instituted in 1809 should be terminated, and the bill dismissed. By indenture dated the 23rl March 1812, arid made between Mrs. H. Naylor and her husband of the first part, the trustees of the settlement of 1808 of the second part, and George Wynch the surviving executor of the third part,, and duly executed by all parties, after reciting the various circumstances already mentioned, and that " doubts were entertained [192] respecting the true construction and effect of the testator's will in certain contingencies," and that it had been agreed to invest a sufficient sum in the funds of Great Britain for the purpose of securing the annuity upon all the trusts declared concerning the same in the will of the testator "except so far as the said trusts are altered by virtue of these presents," and after also reciting that the said George Wynch had accordingly invested the sum of 12,000 Navy five per cent, annuities in the joint names of himself and another trustee named by him and of N. E. Kindersley and T. Cockburn, it %vas witnessed that for declaring the trusts of the sum of 12,000 Navy five per cent, annuities so invested it was declared and agreed by all the parties that the trustees in whose names that sum was invested should stand possessed thereof in trust to pay the dividends thereof to Mrs. H. Naylor for life for her sole and separate use in satisfaction of the annuity of 600 and in lieu of all interest in the 20,000 star pagodas, and after her decease to stand possessed of the capital sum of 12,000 Navy five per cent, annuities upon the trusts and for the intents and purposes created...
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