Thomas Duffield, and Emily Francis his Wife, Plaintiffs in the Court of Chancery-Appellants; Amelia Maria Elwes, Francis Const, George Law, Abraham Henry Chambers, William Hicks, George Thomas Warren Hastings Duffield, Caroline Duffield, Maria Duffield, Anna Duffield, Susan Eliza Duffield, Infants, Defendants in the same Court, by Original and Amended Bill, - Respondents
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1829 |
| Date | 01 January 1829 |
| Court | High Court of Chancery |
English Reports Citation: 4 E.R. 1334
COURT OF CHANCERY.
Mews' Dig. xv. 412. S. C. 1 Dow and d. 268, 395; in Ch. 2 Sim. and St. 544; 4 L.J. (O.S.) Ch. 189. Discussed in Percival v Percvval, 1870, L.R. 9 Eq. 393. Approved on point as to revocation in Doe d. Evers v. Ward,, 1852, 21 L.J. Q.B. 145, 150; considered on point as to interest taken under devise in Holmes v. Prescott, 1864, 33 L.J. Ch. 264.
[260] ENGLAND. (court op chancery.) THOMAS DUFFIELD, and EMILY' FRANCIS his Wife, Plaintiffs in the Court of Chancery.- Appellants ; AMELIA MARIA EL WES, FRANCIS CONST, GEORGE LAW, ABRAHAM HENRY CHAMBERS, WILLIAM HICKS, GEORGE THOMAS WARREN HASTINGS DUFFIELD, CAROLINE DUFFIELD, MARIA DUFFIELD, ANNA DUFFIELD, SUSAN ELIZA DUFFIELD, Infants, Defendants in the same Court, by Original and Amended Bill, - Respondents. The same Plaintiffs in the Court of Chancery, - Appettcmts; ROBERT GREENHILL RUSSELL, Esq., GEORGE SPENCER SMITH, WILLIAM HICKS, and AMELIA MARIA his1 Wife, late AMELIA MARIA EL WES, Defendants in the same Court, by Supplemental Bill, - Respondents. The same Plaintiffs in the Court of Chancery, - Appellants; HENRY DUFFIELD, an Infant, Defendant in the same Court, by second Supplemental Bill, - Respondents. [Mews' Dig. xv. 412. S. C. 1 Dow and d. 268, 395; in Ch. 2 Sim. and St. 544; 4 L.J. (O.S.) Ch. 189. Discussed in Percivat v Perchxd, 1870, L.R. 9 Eq. 393. Approved on point as to revocation in Doe d . Evers v. Ward,, 1852, 21 L.J. Q.B. 145, 150 ; considered on point as to interest taken under devise in Holmes v. Prescott, 1864, 33 L.J. Ch. 264.] [261] A testator by his will, devised to trustees and their heirs, all his freehold and copyhold land at S. and also' his; freehold land at H. in case there should be but one son of his daughter A. who' should attain the age of twenty-one 1334 DUFFIELD V. DUFFIELD [1829] III BLIGH N.S. years, upon trust for such son and his heirs; and in case there should be two or more sons of A. who, should attain the age of twenty-one years, then in trust for the second of such sons and his heirs; and in case there should be no son of A. upon trust for such of the daughters of A. (if any) as should first attain the age of twenty-one years, etc.: and then after certain bequests of stock in trust, to pay the dividends by way of life annuities, the testator devised and bequeathed all the residue of his property, whether freehold, copyhold, or for years, money in the funds, upon, mortgage or otherwise, upon security or at interest, debts of whatever other nature or kind, to the same trustees, their heirs, executors, and administrators, upon trust, to sell, get in, etc. and to apply the proceeds 'in payment of debts and legacies, etc.; and as to the residue of the monies to arise by such sales, to invest the same in the public funds or real securities; and if there should be only one child of A. upon trust, to transfer or assure the funds, and the dividends, interest, and annual proceeds thereof, to such only child, at or on his attaining the age of twenty-one years, etc.; and if there should be two or three children of A. in trust, for such two or three children, equally to be divided between, them, the shares of sons to be transferred on their attaining the age of twenty-one years, etc. The testator afterwards made a, codicil to his will in these words, to the effect following:-" Having some short time back drawn my pen through the first fifteen lines of the sixth sheet of my will, and being apprehensive that such rasure not being witnessed, might lead to litigation, I declare that the sole intention of such rasure is, to1 revoke that pa,rt only of the will, whereby I direct the sale of my freehold property; and I hereby direct and appoint, that the son of my daughter A. who shall first attain the agie of twenty-one years, shall on attaining that age change his name to' Elwes; and I give and devise to the said son of A. on his attaining the a,ge of twenty-one years, and changing his name to Elwes, all my freehold property, lands, tenements, and hereditaments, to hold to my said grandson, his heirs, and assigns, etc.; and I do hereby [262] ratify and confirm the said will, except as before is excepted." Held that the will was revoked by the codicil, expressly as to the power of sale; and as to the carpus of the lands at S. and H. by the effect of inconsistency of devise, but that the will was unrevoked and operative in all other respects; and that under the devise by the effect of the will and codicil, no estate in the lands at S. and H. and the other freehold estates, was vested, but remained contingent upon the event of sons or 'daughters of the testator's daughter, according to the limitations of the will, living to, attain the age of twenty-one, etc.; and that until such vesting upon such event, (or until such event should become impossible) the estate in the lands vested in the trustees, and the rents and profits were applicable according to' the trusts of the will. George Elwes being at the time of making his will, and until his death, seised of or well entitled to an estate of inheritance in fee simple, of and in divers freehold manors, messuages, lands and hereditaments, situate in the counties: of Berks, Surrey, Middlesex, and Suffolk, and elsewhere, and also to an estate of inheritance in fee of, and in divers copyhold and customary hereditaments, situate in the counties! of Berks, Essex, and Suffolk, and elsewhere; and also possessed of and well entitled to a, very considerable personal estate and effects, consisting of valuable leasehold messuages and hereditaments, monies in the fundsi, and various other particulars; when he was of sound and disposing mind, memory, and understanding, duly made and published his last will and testament in writing, bearing date the 1st day of March, 1811, and duly executed by him, and attested as by law required, to pass [263] freehold estates by devise; and he thereby among other tilings, devised and bequeathed as follows:-"I give and bequeath unto my brother John Elwes, and Abraham Henry -Chambers!, (the Respondent) and their heirsi, all that my freehold and copyhold farm and estate, situate, lying, and being in Southwood Park, in the county of Suffolk, which I lately purchased from John Pytches, Esquire, (and the copyhold part, whereof I have already surrendered to the uses of my will;) and 1335 Ill BLIGH N.S. DUFFIELD V. DUFFIELD [1829] also all that my freehold farm and estate at Haverhill, in the county of Essex, to, for, and upon such trusts as are in and by this my will expressed and declared thereof ; (that is to say) in case there shall be but one son of my daughter Amelia Maria Frances Duffield, by her present husband, the said Thomas Duffield, who shall attain the age of twenty-one years, upon trust for such, son, his heirs and assigns, for ever ; and in case there shall be two or more sons of the said Amelia Maria, Frances Duffield, who shall attain the age of twenty-one years, then in trust for th|e second of such sons, his heirs and assigns for ever; and in case there shall be no son of the said Amelia Maria Frances Duffield, by the said Thomas Duffield, who- shall attain the age of twenty-one years, then upon trust for such of the daughters (if any) of the said Amelia Maria Frances Duffield, by the said Thomas Duffield, as shall first attain the age of twenty-one years, or be married under that age, with the consent of the trustees or trustee for the time being of this my will, and the heirs and assigns of such daughter for ever; but if [264] there shall not be a,ny son of the said Amelia Maria Frances Duffield, by the said Thomas Duffield, whoi shall attain the age of twenty-one years, nor any daughter who shall attain that age or be married, and the said Thomas Duffield shall depart this life leaving the said Amelia Maria Frances Duffield him surviving, then upon such and the same trusts for the benefit of the children, as well sons, as daughters, of the said Amelia Maria Frances Duffield by any second husband with whom she may happen to intermarry, as are hereinbefore expressed and declared of and concerning the said freehold and copyhold farms and estates, for the benefit of the children of the said Amelia Maria Frances Duffield by the said Thomas Duffield; but if there shall not be any son of the said Amelia Maria Frances Duffield, by such after taken husband, who shall attain the age of twenty-one years, nor a daughter who shall attain that age, or be married with such consent as aforesaid, then upon trust for my brother John Elwes, his heirs and assigns for ever." And then after bequeathing certain legacies, the testator devised and bequeathed as follows: "And as to for and concerning all the rest, residue and remainder of the property of which I shall be possessed, or to which I shall be entitled at the time of my decease, or over which I have a disposing power, whether the same consist wholly or in part of estates, of freehold, copyhold, or for years, money in the funds, upon mortgage, or otherwise out upon security or a,t interest, debts, or of whatever other nature or kind the same or any part [265] thereof may be, I give, devise, and bequeath the same and every part thereof, unto the said John Elwes and Abraham Henry Chambers, their heirsi, executors, administrators, and assigns, upon trust, that they the said John Elwes and Abraham Henry Chambers, or the survivor of them, or the heirs, executors, administrators, or assigns of such survivor, do and shall with all convenient speed after my decease, sell, dispose of, and convey all and...
To continue reading
Request your trial
-
Doe, on the demise of John Dolley, against Ward and Others
...the legal estate." "That is, in my opinion, clearly a condition precedent." The ease, in this respect, resembled Duffield v. Duffield (3 Bligh, N. S. 260), where the devise was to the testator's grandson on his attaining the age of twenty-one and changing his name, and it was held that the ......
-
Bevan v MahonHagan
...name and arms, would not the gift over take effect in favour of the second son ? Bull v. Pritchard (8). As between persons taking (1) 3 Bligh (N. S.) 260 ; 1 Dow & Clarke, 268, at p. 309. (2) 2 Dr. & Sm. 266. (3) L. It. 18 Eq. 290. (4) 32 Ch. Div. 388, at p. 394. (5) 2 Hem. & Mil. 46. (6) 1......
-
D'Eyncourt v Gregory
...sen. 268, and 4 Bro. C. C. 389, n.); Carr v. Lord Erroll (6 East, 58); Tregmerell v. Sydenham (3 Dow. 294); Duffielil v. Duffield (3 Bligh (N. S.), 260) ; Wills v. mils (1 Dr. & War. 439). the attorney-general (Sir E. Palmer), Mr Jessel, Sir Hugh Cairns and Mr. Welby, for Sir Glynne Gregory......
-
James Ackers (an Infant, by N. C. Milne, his Guardian) v Phipps (Widow)
...and profits could not go to him in respect of such an interest. This point was elaborately argued in the case of Duffield v. Duffield (3 Bligh, N.S. 260. 1 Dow and Clark, 268 and 395), and the opinions of the judges taken and the case fully considered. In delivering the reasons of the judge......