Thomas Duffield, Esquire, and Emily Frances his wife, - Appellants; Amelia Maria Elwes, Widow, and Abraham Henry Chambers, Esquire, William Hicks, Clerk, and George Thomas Warren Hastings Duffield, Caroline Duffield, Maria Duffield, Anna Duffield, and Susan Eliza Duffield, Infants, by Original and Amended Bill, - Respondents
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1827 |
| Date | 01 January 1827 |
| Court | High Court of Chancery |
English Reports Citation: 4 E.R. 959
COURT OF CHANCERY.
Mews' Dig. xv. 326 (Duffield v. Hicks), S. C. 1 Dow and Cl. 1 (Duffield v. Hicks), 1 Sim. and St. 239. Applied in Porter v. Walsh (1895), 1 I. R. 284; affd. (1896), 1 I. R. 148. Adopted in Cassidy v. Belfast Banking Co. 1887, 22 L. R., Ir. 68, at p. 76. Considered in In re Dillon, Duffin v. Duffin, 1890, 44 Ch. D. 76, at pp. 82, 83.
DUFFIELD V. ELWES [1827] I BLIGH N.S. /0/£-./C£:/ ) IQ3I.3C&.IIO. [497] ENGLAND. (court op chancery.) THOMAS DUFFIELD, Esquire, and EMILY FRANCES his wife,-Appellants; AMELIA MARIA ELWES, Widow, and ABRAHAM HENRY CHAMBERS, Esquire, WILLIAM HICKS, Clerk, and GEORGE THOMAS WARREN HASTINGS DUFFIELD, CAROLINE DUFFIELD, MARIA DUFFIELD, ANNA DUFFIELD, and SUSAN ELIZA DUFFIELD, Infants, by Original and Amended Bill,-Respondents. And between the same Plaintiffs,-Appellants; ROBERT GREENHILL RUSSELL, Esquire, GEORGE SPENCER SMITH, the said WILLIAM HICKS, Clerk, and AMELIA MARIA his Wife, late AMELIA MARIA ELWES, Widow,--Respondents. [Mews' Dig. xv. 326 (Duffield v. Hicks), S. C. 1 Dow and Cl. 1 (Duffield v. Hicks), 1 Sim. and St. 2-39. Applied in Porter v. Walsh (1895), 1 I. R. 284; affd. (1896), 1 I. R. 148. - Adopted in Cassidy v. Belfast Banking Co. 1887, 22 L. R., Ir. 68, at p. 76. Considered in In re Dillon, Dwffin v. Duffin, 1890, 44 Ch. D. 76, at pp. 82, 83.] E. having by his will made a certain provision for his daughter, an only child- with whom he had been offended on account of a clandestine marriage-(but was reconciled to her and her husband), declares to a common friend his purpose to make a farther provision for his daughter. Being on his death bed, and unable to write, he is urged by that friend to make a gift to his daughter of certain monies secured by mortgage and bond, and expressly assents to that proposal. In the evening of the same day, being then unable to speak, he is reminded by the same friend of the transaction of the morning, and the deeds of mortgage and bond securing the monies, being produced, he is informed that it is necessary to confirm the gift by a delivery of the deeds; and the friend proposed with the father's permission, to hand over the deeds [498] to his daughter. Upon this proposal, the father made an inclination of his head, and the friend then handed the deeds across the bed where the father was lying, to the daughter on the opposite side; whereupon the father placed the hand of the daughter upon the deeds, and pressed it with his own hand for some minutes, and appeared satisfied with what he had done. The deeds in question consisted of, 1. A conveyance in fee of lands to secure £2927, with the usual covenant for payment of the money lent, and bond by way of collateral security. 2. An assignment of a, mortgage debt of £30,000, and of a judgment for that sum recovered on a bond with a conveyance of the land, and the usual covenant for payment of the money. Held that this was a valid donatw mortis causa; that the property in the deeds and the right to recover the money secured by them, passed by the delivery followed by the death of the donor, and that the real and personal representatives of the donor, were trustees for the donee, to make the gift effectual. The original suit in this case was instituted in the Court of Chancery, by the Appellants Thomas Duffield, Esquire, and Emily Frances his wife, as Plaintiffs, with a view of obtaining the judgment of that Court upon several questions arising out of the various dispositions made by George Elwes, deceased, of different parts of his property, by way of settlement, gift and testamentary arrangement; and also for the purpose of placing the infant Defendants, the children of the Plaintiffs, under the protection of the Court. The Appellant Emily Frances Duffield, was the only child and heir at la,w, and sole next of kin of George Elwes; she intermarried with the Appellant, Thomas Duffield, Esquire, in the year 1810. The children of that marriage were five; namely, the Respondent George Thomas Warren Hastings Duffield, the only son 959 I BLIGH N.S. DUFFIELD V. ELWES [1827] of the Appellants, an infant of the age of eleven years; and four daughters, the Res,pond-[499]-ents Caroline Duffield, Maria Duffield, Anna Duffield, and Susan Eliza. Duffield, all infants, younger than their brother. George Elwes died in 1821, leaving the Respondent Amelia Maria, Hicks, his widow, who, after the decree pronounced in the original cause, married the Respondent the Reverend William Hicks. The Respondent Abraham Henry Chambers was the surviving devisee in trust and executor named in the will of George Elwes; the other trustee named in the will having died in the testator's life. The Respondent William Hicks was named an executor by George Elwes in a codicil. The Respondents Robert Greenhill Russell, and George Spencer Smith, were the trustees of the settlement made on the marriage of the Respondent William Hicks, and Amelia Maria, his wife. In the month of February, 1810, the Appellant Emily Frances Duffield, being then about the age of 18 years, intermarried with the Appellant Thomasi Duffield, at Gretna in Scotland, without the knowledge of her father, and on the llth day of March, 1810, the Appellants were re-married in England. Shortly after this remarriage, George Elwes and the Respondent Amelia, Maria, then his. wife, received the Appellants into their house, to reside with them as part of their family. George Elwes, at the time of making his will, and until his death, was seised in fee simple of divers freehold and copyhold estates, a.nd was also; possessed of a very considerable personal estate. By his will, dated the 1st March 1811, and duly executed and attested to' pass freehold estates, after directing that all his debts and funeral expenses, and the expenses of proving his will, should be paid, as thereinafter mentioned, and confirming a-jointure of £100 per annum, and an annuity of £400 to, his wife, the Re-[500]-spondent Amelia. Maria Hicks, he gave and bequeathed unto his dear daughter Amelia Maria, Frances Duffield (meaning thereby his daughter the Appellant Emily Frances Duffield), the wife of Thomas Duffield, and her assigns, for her life, all that his leasehold messuage or dwelling-house, with the appurtenances, situate in High-street, Mary-le-bone, and he declared that the same should from and after her decease fall into the residue of his personal estate- thereinafter devised : And he gave and bequeathed unto his said daughter all his carriages,, horses, household furniture and goods, plate, linen, china, stock o f wines and other liquora, which should be; in and about the said messuage or dwelling-house, or in or about any other house or houses, in which he might dwell, or which he might inhabit at the time of his decease: And he gave and bequeathed unto his brother John Elwes, since deceased, and to- the- Respondent Abraham Henry Chambers, and their heirs, his freehold and copyhold farm and estate, in Suffolk, and also his freehold farm and estate in Essex, upon certain trusts therein expressed, for the benefit of the second or only son of the Appellants, or their daughters in failure of such son, with devises over : And the testator, after giving some legacies of stock and small annuities, and pecuniary legacies, devised and bequeathed the residue of his real and personal estates, to- the same trustees, upon trust to' sell and convert into money all his real estates, mortgages,, securities, etc., to hold the monies so- produced in trust, among other things, to purchase so much 3 per cent, stock, as would yield £1000 per annum, and to pay the dividends to the Appellant his daughter, during her life, for her separate use; the principal at her death to fall into his personal [501] estate. The residue o-f the trust fund he disposed of, by s-pecial limitations, to the children of his daughter, and their children (if any); remainder to John Elwes. By a, codicil dated the 3d March, 1821, he declared the intent of a, cancellation which he had made in that part, of his will relating to. the sale of his freehold, copyhold and leasehold estates: He devised his. real estates to that son of his daughter, who- should first attain 21 : and appointed the Respondent, William Hicks, a. trustee in the place of his brother deceased. The testator, George Elwes, was entitled to- the principal' sum of £2927, and interest thereon due to- him from Sir Edwin Bayntun Sandys, Baro-net, secured by the bond of Sir Edwin Bayntun Sandys, executed by him to the testator, bearing date the 12th day o-f July, 1820, and further secured by indentures of lease and release and mortgage, bearing date respectively the llth and 12th of July, 1820, whereby Sir Edwin Bayntun Sandys released a,nd conveyed to the testator in fee simple, by way of mortgage, certain freehold estates. The deed also, contained the usual covenant for repayment of the money lent. The testator, George Elwes, was 960 DUFFIELD V. EL WES [1827] I BLIGH N.S. also entitled to the principal sum of £30,000, and interest thereon due to him from Sir Edwin Bayntun Sandys, and siecured by certain indentures of lease and release, and assignment of mortgage, bearing date respectively the 2d and 3d of November, 1820. The release recited a, loan of £30,000 made by trustees under a, marriage settlement to Sir Edwin Bayntun Sandys, a conveyance of lands therein described to secure the repayment, a bond executed for the same purpose, and a judgment recovered upon that bond. It [502] further recited that the mortgagee having called in the money due on the mortgage, George Elwes had advanced to...
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