Thomas H. Evers and Others, - Plaintiffs in Error; Thomas Challis, - Defendant in Error
| Jurisdiction | England & Wales |
| Judgment Date | 08 July 1859 |
| Date | 08 July 1859 |
| Court | House of Lords |
English Reports Citation: 11 E.R. 212
House of Lords
Mews' Dig x. 1029, 1032. S.C. 29 L.J. Q.B. 121; 5 Jur. N.S. 825; 7 W.R. 622; and, below, sub nom. Doe v. Challis, 18 Q.B. 224, 231. Considered in In re Bence (1891), 3 Ch. 242. Distinguished in In re Hancock; Watson v. Watson, 1901, 70 L.J.Ch. 114; and cf. Brookman v. Smith, 1871, L.R. 6 Ex. 299; Hodgson v. Halford, 1879, 11 Ch.D. 965; In re Roberts, Repington v. Roberts-Gawen, 1881, 19 Ch. D. 526; and In re Harvey; Peek v. Savory, 1888, 39 Ch. D. 294.
Will - Contingent Remainder - Executory Devise - Gift Over - Remoteness - Dying "without issue."
THOMAS H. EVERS and Others,-Plaintiffs in Error; THOMAS CHALLIS,- Defendant in Error [Feb. 17, June 11, July 8, 1859]. [Mews' Dig. x. 1029, 1032. S.C. 29 L.J. Q.B. 121; 5 Jur. N.S. 825; 7 W.K, 622; and, below, sub nom. Doe v. Challis, 18 Q.B. 224, 231. Considered in In re Hence (1891), 3 Ch. 242. Distinguished in In re Hancock; Watson v. Watson, 1901, 70 L.J.Ch. 114; and cf. BrooJemanv. Smith, 1871, L.R. 6 Ex. 299; Hodgson v. Halford, 1879, 11 Ch.D. 965; In re Roberts, Repington v. Roberts-Gawen, 1881, 19 Ch. D. 526; and In re Harvey; Peek v. Savory, 1888, 39 Ch.D. 294.] Will-Contingent Remainder-Executory Devise-Gift Over-Remoteness- Dying " without issue." Though a gift over may as to one alternative operate as an executory devise it will not necessarily do so as to another; and if the second is that which in fact occurs, the gift may be treated as a good contingent remainder. The invalidity of one alternative will not necessarily defeat the other. Devise-to E. for life, " and from and after her decease to- such child or children as she may have, if a son or sons who shall live to attain the age of twenty-three, and, if a daughter or daughters, who shall live to attain the age of twenty-one, as tenants in common, etc.;" and in case of the death of any son under twenty-three, or daughter under twenty-one, the share to go to the survivors attaining those ages. And in case E. has only one son to attain twenty-three, or a daughter to attain twenty-one, to such son or daughter. " And also, in case E.'s children shall die under " the age mentioned, " or if she has none," then to J., A.., and S. for life, and afterwards to their sons and daughters on attaining the above ages respectively. There were similar devises to J., A., and S., but in the devises to J. and S. nothing was said as to total absence of issue; in that to A. the words used were " and farther, in case A. shall die without issue." E. first and A. afterwards died without ever having had a child: Held, That on the death of A., the gift over in favour of a daughter of J., who had attained twenty-one, took effect as a contingent remainder, because no prior estate was divested or displaced, and when the particular estate (the life estate of A.) determined the contingency on which the remainder was to take effect, had occurred: Held also, That though the gift over, on the death of E.'s sons under [532] twenty-three, was void for remoteness, the gift over on her death without having had issue, was not thereby affected. A. died without ever having had issue: Held, that though in the devise to her the not having issue was not expressed, it was necessarily implied in the provision as to her dying without children who should attain twenty-three or twenty-one, 212 EVERS V. CHALLIS [1859] VII H.L.C., 533 and therefore on her death without ever having had issue, the gift over took effect, Fearne's Comment o n Gulliver v. Wickett (Ex. Dev. 396) remarked on. Thomas Dolley, by a will and codicil dated 12th June 1819, and 20th March 1820, devised certain freehold and leasehold premises, of which he was seized in the City of London, to Thomas Challis and John Broigden upon trusts. These trusts were numerous, and one after another had been the subject of litigation (see 9 Ad. and El. 582 ; 18 Q.B. Eep. 197 ; -id. 224 ; id. 231). The part of his will material to' the present case was the following. The testator gave to the trustees certain freehold and leasehold houses, " To hold all the said last mentioned premises, etc. unto the said trustees, their heirs, etc., during the natural life of my daughter Elizabeth Maria Dolley, upon trust that the trustees do pay, or permit my daughter the said Elizabeth Maria, from the quarter day next after my decease,_ to receive and take the rents and profits of the said premises for and during the term of her natural life " (independently of any husband, etc., her receipt alone to be a discharge): " And from and immediately after the decease of my said daughter Elizabeth Maria, I give all the said last mentioned premises unto such of her children as she may have, if a son or sons, who shall live to the age of twenty-three years, and if a daughter or daughters, who shall live to the age of twenty-one years, their respective heirs, administrators, and assigns, as tenants in common. And in case of the death of any child or children which [533] my said daughter Elizabeth Maria may have, if a son or sons, under the age or ages of twenty-three years, or if a daughter or daughters under the age of twenty-one years, the share or shares of such child or children so dying to go to the survivors and survivor of such child or children attaining such ages, if more than one, their heirs, executors, administrators, and assigns in equal shares as tenants in common, and in case my said daughter Elizabeth Maria has only one child, if a son that shall live to the age of twenty-three years, or if a daughter that shall live to1 the age of twenty-one years, I give all the said last-mentioned premises unto' such only child so attaining such age, his or her heirs, executors, administrators, and assigns. And also in case all the children of my said daughter Elizabeth Maria, shall die, if a son, or sons under the age of twenty-three years, or if a daughter under the age of twenty-one years, or if she has none,* I give all the said last-mentioned premises unto- the trustees, etc. during the respective lives of my said son John Dolley and daughters Sarah. Ward and Ann Dolley, upon, trust to pay or permit my said son. and two last named daughters to' receive and take the rents, profits, and annual income thereof for and during their respective natural lives in equal shares, the share of my said two daughters to be for their separate uses only and independent of any husband or husbands; and upon the decease of my said son and two last named daughters, I give the share of each of them so dying unto' his or her children, if a son or sons living to attain the age of twenty-three years, and if a daughter or daughters [534] living to the age of twenty-one years, his, her, and their heirs5 executors, administrators, and assigns, if more than, one, in equal shares as tenants in common, and, if only one child, to such only child, his or her heirs, executora, administrators, and assigns. And, farther, in case of the death of my said son, or either of my said two daughters, without leaving a child, if a son, who shall live to attain, the age of twenty-three years, or if a, daughter, who shall live to attain the age of twenty-one years, I give the part and parts such children or child would be entitled to as aforesaid unto- the child or children of my said son. and two daughters having issue, if a son or sons living to the age of twenty-three years, and if a daughter or daughters living to attain the age of twenty-one years; if two of my said last named children have such children or child, to them, his, or her heirs, executors, administrators, and assigns, as taking in equal shares from his or her father or mother, his, her, and their heirs, executors, administrators, and assigns; and if only one of them-, my said son * There were similar devises to the testator'si other children. In that to Ann, the words in this part of the will, as to' the absence of issue, were, " or in case my said daughter Ann shall die without issue." In the other devises neither of these forms of expression was used. In other respects, the devises were in, all material points identical. 213 VII H.L.C., 635 EVEES V. CHALLIS [1859] and two daughters, leaves issue that lives, if a. son or sons to the age of twenty-three years, if a daughter or daughters lives to attain the age of twenty-one years, then I give the whole of such last mentioned estate and premises unto' such issue, if more than one, in equal shares, their respective heirs, executors, administrators, and assigns, and, if only one, to such one, his or her heirs, executors, administrators, and assigns at the ages aforesaid. And it is my desire that the rents, produce, and profits of the said lastmentioned premises shall, after all deductions for the purposes aforesaid, be applied for or towards the maintenance and education of the children of my said daughter Elizabeth Maria, and of my said son and two daughters' children until entitled to the said estates and premises." The testator afterwards made a codicil, which, however, did not affect the preceding dispositions. [535] The testator died 26th March 1821. At the date of the will and codicil, and at the time of his death, he had one son, John Dolley, and four daughters, viz., Ann Dolley, Elizabeth Maria Dolley, Sarah Ward, and Margaret Creswell White. John Dolley, at the time of the death of the testator, had two daughters living, Mary Ann Dolley, born in January 1809, and Elizabeth Sarah Dolley, born December 1820. Elizabeth Maria Dolley married one Joseph Doxsey, and died on 18th August 1838, never having had a child, and Ann took one-third of her property under the testator's will. Sarah Ward died on 27th February 1830, leaving three sons and four daughters, all born before the death of the testator. Ann Dolley, the testator's remaining daughter, married Mr. Akennan, and died in 1847, never having had a...
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