Thomas v Jones
| Jurisdiction | England & Wales |
| Judgment Date | 10 December 1862 |
| Date | 10 December 1862 |
| Court | High Court of Chancery |
English Reports Citation: 46 E.R. 25
BEFORE THE LORD CHANCELLOR LORD WESTBURY.
S. C. 2 J. & H. 475; 1 N. R. 138; 32 L. J. Ch. 139; 9 Jur. (N. S.), 161; 7 L. T. 610; 11 W. R. 242. See Noble v. Phelps, 1871, L. R. 2 P. & D. 283; Noble v. Willock, 1873-75, L. R. 8 Ch. 793; L. R. 7 H. L. 590. Followed, Boyes v. Cook, 1880, 14 Ch. D. 56. As to married woman's testamentary power now, see Married Women's Property Act, 1882 (45 & 46 Vict. c. 75), s. 1.
[63] thomas v. jones. Before the Lord Chancellor Lord Westbury. Nov. 20, 21, Dec. 10, 1862. [S. C. 2 J. & H. 475; 1 N. R. 138; 32 L. J. Ch. 139; 9 Jur. (N. S.), 161 ; 7 L. T. 610; 11 W. R. 242. See Noble v. Phelps, 1871, L. R. 2 P. & D. 283; Noble v. WWodc, 1873-75, L. R. 8 Ch. 793; L. R. 7 H. L. 590. Followed, Boyes v. Cook, 1880, 14 Ch. D. 56. As to married woman's testamentary power now, see Married Women's Property Act, 1882 (45 & 46 Viet. c. 75), s. L] The Sth section of the Wills Act (1 Viet. e. 26), providing that no will made by any married woman shall be valid, except such a will as might have been made by a married woman before the passing of the Act, does not exclude the wills of married women Irom the operation of the 24th section, as to a will speaking as if executed immediately before the testator's death, or of the 27th, as to a general gift being an execution of a power. Semble, that a general testamentary power given to two persons, or the survivor, of appointing an equitable estate, may be well exercised in the lifetime of both by that one who proves to be the survivor. This was an appeal from a decision of Vice-Chancellor Wood holding a power to have been well executed by the will of a married woman. The power was created by the will of Sarah Davies, dated the 12th of August 1825, whereby, after charging annuities upon and creating life interests in freehold and copyhold estates in Wales, she appointed, gave and devised the same to trustees and their heirs, subject to certain prior interests, to the use of such person or persons and for such estate and estates, intents and purposes, manner and form as the survivor of her three children, David Thomas Bo wen Davies, John Bowen Davies and Margaretta Bowen. Davies, should by any [64] deed or deeds or other instrument in òwriting or in and by his or her last will and testament in writing, or any codicil thereto, grant, bargain, sell, release, direct, limit or appoint or give and devise the same or any part thereof, with remainders over, under which, in the events which happened, David Thomas Bowen Davies would have become entitled, by descent, in default of such grant, limitation or appointment, gift or devise. Sarah Davies died on the 5th of February 1827. John Bo wen Davies died on the llth of May 1832 without having married, and intestate. Margaretta Bowen Davies married David Fryer Nicholl shortly after the 17th of April 183S, and by a settlement of that date, executed in contemplation of the marriage, David Fryer Nicholl covenanted with trustees, their heirs, executors, administrators and assigns, amongst other things, that he would permit and suffer the last will and testament of Margaretta Bowen Davies, or any codicil or codicils thereto, to be proved in the proper Ecclesiastical Court by the executor or executrix therein 26 THOMAS V. JONES 1DB 0. J. * 8. M. named, or otherwise aa the case might require, and that it should [he lawful for Margaretta Bowen Davies, during the continuance of her then intended coverture, to exercise from time to time all powers of appointment of what nature or kind soever which might accrue to her during such coverture at her will and pleasure, without any control or hindrance of, from or by David Fryer Nicholl, he thereby covenanting to concur in and duly execute with her all such powers of appointment as should require such his concurrence or joint execution. Margaretta Bowen Nicholl made her will, dated the [65] 18th of August 1838, and thereby, after giving various legacies and making certain specific devises of realty, and amongst them an appointment of certain estates in Llangeler, in the county of Carmarthen, which, under the will of Sarah Davies, stood limited in the events that had happened to such uses as the survivor of Margaretta Nicholl and John Bowen Davies should appoint, made a residuary devise to the following effect, viz. :-As to all the rest, residue and remainder of her real and personal estate whatsoever and wheresoever and of what nature or kind soever that she might die possessed of, and not given and devised by her will (except such real and personal estate as might remain subject to the trusts of her marriage settlement by reason of no specific disposition of any part thereof having been made by her under the power for that purpose therein contained, and of which that general devise and bequest was not to be taken as in execution) she gave, devised and bequeathed the said residue for the benefit of her own children, and in case she should have no child who should survive her, then to David Thomas Bowen Davies (therein called Bowen Davies) for his life, with remainder to his children lawfully to be begotten, and in default of auch issue unto Henry and Eliza Jones, natural children of her late brother John Bowen Davies. On the 24th of May 1848 David Thomas Bowen Davies died, and in 1850 two creditors' suits were instituted for the administration of his estate. On the 17th of October 1858 Margaretta Bowen Nicholl died, never having had any issue, but leaving her husband David Fryer Nicholl surviving and without having republished the will of 1838 after the death of David Thomas Bowen Davies. [66] The present suit was instituted as supplemental to the creditors' suits instituted for the purpose of administering the estate of David Thomas Bowen Davies, the Plaintiff insisting that there had been no valid exercise by Margaretta Bowen Nicholl of the power given by the will of Sarah Davies, but that the estate had descended to David Thomas Bowen Davies and formed part of his assets. The case came on for hearing before the Vice-Chancellor Wood, and is reported in the 2d Volume of Messrs. Johnson & Hemming's Reports (page 475), and from the decision then given the Plaintiffs appealed. Sir. Hugh Cairns, Mr. Hobhouse and Mr. Hugh Williams, for the Appellants. The first question is, what was the intention of the donor of the power?-what is the construction of the will of Sarah Davies ? Irrespectively of the AVills Act, a power to be exercised by the survivor of several could not be exercised before the survivorship took place; MacAdam v. Logan (3 Bro. C. C. 310) ; Hole v. Escott (4 Myl. & Cr. 187); and when the donor of the power has given over the estate, subject only to the power, an appointment must be shewn to have been made by a person filling at the time the character described by the donor. The intention of the donor of the power here was that the survivor of her three named children should, when actually the survivor, have the advantage of exercising it, but that in default of such exercise by him or her as the case might be, the estate should go over. Admitting it to be true that a general power is equivalent to ownership, still what the testatrix has given by way of power and not by way of property must be taken with all [67] the qualifications which she has by that mode of limitation imposed. In Doe v. Tomkinson (2 Mau. & Sel. 165), a testator devised all his real and personal estate wheresoever and whatsoever equally to his sisters Mary and Elizabeth or to the survivor of them, and to be disposed of by the survivor as she might by will devise ; and it was held, that even assuming the sisters to be by virtue of such devise tenants in common for life with a contingent remainder in fee to the survivor, or with a power to the survivor to dispose of the fee by will, it was not such a contingent remainder as was devisable by a will made by one in the lifetime of both the sisters, and that the power was not well executed by such will. Lord Ellenborough in giving judgment says, " It ia said that this is a contingent remainder to the survivor and such as is devisable; but, supposing 1DB 0. J.& 68. THOMAS V. JONES 2 7 it to be a contingent remainder, I think it cannot be considered aa devisable, because the person who is to take it is not in any degree ascertainable before the contingency happens; it cannot be said in whom the interest is during the lives of the two sisters, nor consequently that it is in either of them during that period ; and it is only in the event of surrivorship that it becomes certain. Admitting therefore the enlarged construction put on the Statute of Wills by Lord Kenyon and the other Judges in Roe v. Jones (3 T. R 88; S. C. 1 H. Bl. 30), how can a person be said to have a contingent interest, when it is uncertain whether he is the person who will be entitled to have it or not ? And as to the case cited from Viner (Sclater v. Travell, 3 Vin. Abr. 427, pi. 8 ; S. C. nom. The Countess of Sutherland v. Northmare, 1 Dick, 56; Sugd. Powers, 262 (8th edit.) ) to shew that if this be a power to the survivor it has been well executed, the distinction between that case and the present is, that there the power was given [68] to a designated person to be executed upon a contingency; here it is given to a contingent person." And this has been the prevailing view of the profession, Lord St. Leonards laying down upon the authority of this case, and in the very words of Lord Ellenborough, and without any expression of dissent, that " there is a distinction where the power is given to a designated person to be executed upon a contingency, and a power given to a contingent person, if we may use the expression ;" Sugden on Powers (page 269 (8th edit.) ). [Mr. Lee (armcus Ounce) referred to Goodright v. Forrester (8 East, 552 ; 1 Taunt. 578).] Secondly, we contend that a married woman's testamentary capacity was not...
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