The Trusts of The Annuity of $600 Given by the will of John Wynch, Deceased and the act of The 10th & 11th Vict. (c. 96), for Better Securing Trust Funds, and for The Relief of Trustees. ex parte Wynch
| Jurisdiction | England & Wales |
| Judgment Date | 18 June 1853 |
| Date | 18 June 1853 |
| Court | High Court of Chancery |
English Reports Citation: 65 E.R. 187
HIGH COURT OF CHANCERY
Affirmed, 5 De G. M. & G. 188; 43 E. R. 842 (with note).
[427] 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 of the 10TH & llTH VlCT. (C. 96), FOR BETTER SECURING TRUST FUNDS, AND FOR the belief of trustees. Exparte wynch. May 25, 26, June 8, 18, 1853. [Affirmed, 5 De G. M. & G-. 188; 43 E. E. 842 (with note).] The rule, that words which applied to real estate would give an estate tail, give an absolute interest in personalty, is qualified in the case of gifts of personal estate to issue or gifts over on failure of issue. Therefore, where a testator gave to a married woman an annuity for her life and the issue from her body, in failure of which to revert to his own heirs, with a direction to secure the annuity to her separate use : Held, that the married woman took for her life only, and that her issue took as purchasers as joint-tenants. This was the petition of the Eev. Henry Wynch, claiming that 12,600 3, 5s. per cent, annuities standing to the credit of this matter, the amount of a fund paid into 188 EX PARTE WYN.CH 1SM.&GIFF.428. Court under the above-mentioned Act by the trustees thereof, and 993, 17s. lid. cash, the dividends thereof, should be paid to the Petitioner, or that the interests of the persons entitled to the funds might be declared. By arrangement, the Respondents, who set up an adverse claim, were considered as having presented a cross-petition. The questions which were discussed arose upon the construction of the will of the late John Wynch, of Vellore, in the East Indies. The testator, by his will, dated the 8th of March 1796, made the following bequest:-" I give and bequeath to my good and virtuous friend, Anna Maria Mealy, now wife [428] of Kidgway 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." The testator appointed his brothers, George Wynch and James Wynch, his executors, and died in June 1797, three months after the date of his will. Lieutenant Mealy died in 1805, leaving Mrs. Anna Maria Mealy surviving. There was no issue by their marriage. By an indenture, dated the 17th of December 1808, being a settlement made immediately before the marriage of Mrs. Mealy with Mr. Francis Hare Naylor, Mrs. Naylor, with Mr. Naylor's consent, assigned the annuity of 600, given and bequeathed by the will of the said John Wynch to or in trust for her and the issue of her body, to Messrs. Kindersley and Cockburn and two other persons, as trustees, upon trust to pay the same to herself for her life for her separate use, but so as the same should not be disposed of by anticipation in the way of sale, mortgage or otherwise; and after her decease to stand possessed of the said annuity "upon the trusts by the will of the said testator, John Wynch, directed and declared of and concerning the same." In 1811 James Wynch died, and George Wynch became his administrator. Prior to the 23d of March 1812, the date of the deed next stated, there had been born alive of the marriage of Mr. and Mrs. Naylor two children. By an indenture, dated the 23d of March 1812, and [429] made between Mr. and Mrs. Naylor of the first part; Messrs. Kindersley and Cockburn and the two' other persons, the trustees of the settlement of the 17th of December 1808, of the second part; and the said George Wynch and the Petitioner, Henry Wynch, of the third part: after reciting certain proceedings in Chancery for the purpose of compelling the representatives of John Wynch, the testator, to invest a sufficient part of the testator's assets in the English funds to produce the annuity of 600, and that it had been agreed that the suit should be terminated and the bill dismissed upon a proper investment being made in the funds of Great Britain for- the purpose of securing the said annuity of 600 upon all the trusts declared concerning the same in the will of the testator, and that George Wynch had accordingly invested the sum of 12,000 5 per cent. Navy annuities in the joint names of himself and Henry Wynch, Nathaniel Edward Kindersley and Thomas Cockburn; and reciting that, doubts being entertained respecting the true construction and effect of the will of the said John Wynch, it had been agreed that Mr. and Mrs. Naylor should assign to the said George Wynch, in his own right, and as administrator of James Wynch, deceased, all their interest in the capital of the said trust fund ; and that, in consideration thereof, Mr. Naylor should, in case he should survive Mrs. Naylor, receive 300 a year out of the income of the trust funds for his life: it was witnessed that, for declaring the trusts of the sum of 12,000 5 per cent. Navy annuities so invested, it was declared and agreed that the said 5 per cent. Navy annuities should be held by Messrs. George Wynch, Henry Wynch, Nathaniel E. Kindersley and Thomas Cockburn, upon trust to pay the dividends thereof to Mrs. Naylor for life for her separate use, in lieu and satisfaction of the annuity of 600 given to her by the testator's will; and after her decease upon trust that the said trustees should stand possessed of the capital sum 1SM.&GIPF.430. EX PARTE WYNCH 189 of 12,000 Navy annuities, upon the trusts and for the in-[430]-tents and purposes created by the testator concerning the annuity of 600, except so far as the same trusts were altered and varied by the assignment thereby, made by Mr. and Mrs. Naylor, of all their right and interest, in any event, contingency or possibility, in the capital of the said sum of 12,000 5 per cent. Navy annuities, after the decease of Mrs. Naylor, whether such right and interest should vest personally in Mrs. Naylor and her husband in their own right, or should devolve on them as representatives of any of her children, or by any other means whatsoever; and it was thereby provided that, if Mr. Naylor should survive his wife, and George Wynch should on her death or at any time during Mr. Naylor's life become entitled for his own benefit to any part of the capital sum of 12,000 5 per cent. Navy annuities, then that the same should be invested in the names of trustees, upon trust, out of the dividends thereof, to pay Mr. Naylor 300 a year during his life; and by the same indenture Mr. and Mrs. Naylor assigned to George Wynch all the right and interest of them and each of them, either personally or derivately, in the said sum of 12,000 5 per cent. Navy annuities, subject only to the trusts thereinbefore declared concerning the same. Mr. Naylor died in 1815, and some time afterwards Mrs. Naylor instituted a suit, praying, notwithstanding the indenture of the 23d of March 1812, that it might be declared that she took an absolute interest in the annuity of 600 under the will of the testator, and to have transferred to her the sum of 12,000 Navy 5 per cent, annuities. This cause came on to be heard on January 1824 before Sir John Leach, then Vice-Chancellor. The bill was dismissed with costs, on the ground that the Court could not inquire into the adequacy or inadequacy of the consideration of the compromise effected by the indenture of the 23d of March 1812, which the Court considered had been fairly and deliberately made; but the Court gave no opinion on the rights of the parties. [431] The case is reported (vide Naylor v. Wynch, 1 S. & S. 555)...
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