Torre v Browne
| Jurisdiction | England & Wales |
| Judgment Date | 31 July 1855 |
| Date | 31 July 1855 |
| Court | House of Lords |
English Reports Citation: 10 E.R. 1017
House of Lords
Mews' Dig. i. 231, 232, 323, 355, 366; iv. 427; xv. 1393. S.C. 24 L.J. Ch. 757; and cf. 14 Beav. 127 (sub nom. Davis v. Browne). On point as to interest, adopted in Edwards v. Warden, 1876, 1 A.C. 305; and Wheatly v. Davies, 1876, 35 L.T. 307. On point as to copyholds, see now Wills Act, 1837 (1 Vict. c. 26), ss. 3, 4. As to charge on corpus, cf. In re Tucker (1893), 2 Ch. 323.
Will - Surrender of Copyholds - Annuities, Arrear - Interest - Costs - Practice.
B. S. TORRE, J. E. WALTERS, JANE CHARLOTTE CRACROFT, and ELIZA A. TORRE,-Appellants; MARIA BROWNE, S. STURGIS, R. EVERALL, and REBECCA, his Wife, ANN R. CRACROFT, E. D. BROWNE, AUGUSTUS 1017 V H.L.C., 566 TORRE V. BROWNE [1854-55] BROWNE, and The ATTORNEY-GENERAL, and the Reverend R. W. P. DA VIES,-Respondents [July 1.7-19, 1854; July 31, 1855]. [Mews' Dig. i. 231, 232, 323, 355, 366; iv. 427; xv. 1393. S.C. 24 L.J. Ch. 757; and cf. 14 Beav. 127 (sub nom. Davis v. Browne). On point as to interest, adopted in Edwards v. Warden, 1876, 1 A.C. 305 ; and Wheatly v. Davies, 1876, 35 L.T. 307. On point as to copyholds, see now Wills Act, 1837 (1 Viet. c. 26), ss. 3, 4. As to charge on corpus, cf. In re Tucker (1893), 2 Ch. 323.] Will-Surrender of Copyholds-Annuities, Arrear-Interest-Costs-Practice. A testator was in 1792 possessed of freehold lands, and of an equitable fee in a copyhold estate. He made a will, by which he subjected the whole of his real estate in aid of his personalty, to the payment of his debts, and subject thereto.,, he gave all his " messuages, tenements, lands, hereditaments, and premises, with, [556] the buildings, mines, etc.," thereon and therein, over which he had a dis -posing power, to trustees, for 500 years, out of the rents, etc., or by assignment, etc., of the term, to raise money to pay his debts legacies, and, after payment thereof, to apply the rents, etc., or the remainder of the estate, to the use of his grandson C. W. C., on his attaining 23, and to raise 1000 to pay to his other grandson R. C., on his attaining 23. And in order that these two grandsons might be properly educated, the Testator directed that the sum of 200, until C. W. C. should attain 23 and 100 afterwards, and till R. C. should attain 23, should be raised for that purpose. By the custom of the manor the copyholds which the Testator possessed, would descend to his customary heir or heirs, the tenure being ga.velkind. The Testator had not made any surrender of them to the use of the will. When he died in 1799, his only daughter (the mother of C. W. C. and R. C.) was his customary heir, and on her death, they became her customary heirs. Held, that the Testator's copyhold interest did not pass by the will, but descended to his customary heir: The annuities created for the maintenance of the grandsons, had fallen into arrear: Held, that they were charged on the real estate itself, and not merely on the annual rents and profits: Held, also that the annuities did not carry interest: The suit to administer the will was instituted in 1800; a great many delays had taken place; it is a rule of Equity to give interest, where there has been unnecessary and vexatious delay; but as the House could not attribute the delays in this case to any particular party in the suit, no interest was allowed. As part of the decree of the Court below was sustained, and part was reversed, no costs were given. A party is not prevented from appealing against a decree because he did not except to the Master's report on which it is founded (p. 565). Walter Watkins, formerly of Llanelly, in the county of Brecon, was, at the date of his will and death, entitled to certain freehold estates, and likewise to an equitable estate in, certain copyhold hereditaments, consisting of messuages and 52 acres of land, situate in the parish of Bedwelty, in the county of Monmouth., held of the Manor of Abercame, in that county. The Testator had purchased this copyhold estate in 1792, and it was then surrendered to him in fee, [557] and he was admitted tenant. He immediately afterwards surrendered it to one Jeremiah Homfray and his heirs, and Homfray was thereon duly admitted tenant. By an indenture, dated 2 May 1792, and executed between the Testator and Homfray, it was declared that the surrender had been made to the intent that Homfray and his heirs might occupy and enjoy the premises and work the mines thereunder for a term of 96 years, commencing from Michaelmas 1791, and they were to make to the Testator and his heirs a yearly payment of 50; and Homfray covenanted that, at the end of the term, he and his heirs would surrender the said copyholds to the Testator and his heirs. The Testator made his will on the 20th, of May 1799, in which he gave the following directions respecting his property: "First, I hereby charge and subject the whole 1018 TORRE V. BROWNE [1854-55] V H.L.C., BB8 of my real estate, in aid of my personals, to and with the payment ' of debts and funeral expenses,' and subject to and chargeable therewith; and the incumbrances which now affect my said real estate or some parts thereof, I give and divide all and singular my messuages or tenements, lands, hereditaments, and premises, with the mills, forges, furnaces, foundries, and other buildings and erections, seams and veins of coal, ore, mine, lead, and royalties therein and thereon (over which I have a digpos-ing power), and also all and every such messuages or tenements, lands, hereditaments, and premises, which I may or shall be in anyways entitled to at the time of my decease, in possession, reversion, remainder or expectancy or otherwise howsoever, situate, lying and being in the counties of Monmouth and Brecon, or otherwise, with, all rights, privileges, members and appurtenances thereunto respectively belonging unto my friends Richard Davies, of Courty Gollen, in the county of Brecon, clerk; and Jeffreys Wilkins, of the town of Brecon, esquire, to have and to hold all and singular the said messuages or tenements, buildings, erections, lands, [558] hereditaments, and premises whatsoever and wheresoever, as well in possession as in remainder expectancy with their and every of their respective rights, members, and appurtenances unto the said Richard Davies and Jeffreys Wilkins, and the survivor of them, and the heirs and assigns of such survivor from and immediately after my decease, for and during a,nd unto the full end and term of 500 years, etc., and without impeachment of waste. In trust to the several uses, etc., hereinafter mentioned, that is to say, that they do and shall, out of the rents, issues, and profits of the said messuages, lands, hereditaments, and premises, or a, sufficient part thereof, or by assignment, sale, or mortgage of the said term of 500 years, or any part thereof, levy and raise as much money as, with the amount of my personal estate, which I will and direct to be sold and disposed of as soon after my decease as convenient to my executors hereinafter named, will be sufficient to pay off and discharge, as well the incumbrances now affecting the said premises or some parts thereof, as all other my aforesaid just debts and funeral expenses. And from and after payment thereof, my will and meaning is, and I do hereby request and direct my said trustees, to whom I have devised the said premises, and the survivor, etc., to receive the annual rents, issues, and profits, of the surplus or remainder of my said real estate and premises, and to pay and apply the same, and every part thereof, unto and for the use and benefit of my grandson, Charles Watkins Cracroft, when and as soon as he shall attain the age of 23 years, for and during the term of his natural life. And from and after his decease, I give and devise all and singular my said messuages, lands, hereditaments, and premises, or the surplus thereof, unto the eldest son of my said grandson, Charles Watkins Cracroft, his heirs and assigns for ever, subject nevertheless to, and charged and chargeable with, the payment of the sum of 1000, which I do hereby [559] empower the said Richard Davies and Jeffreys Wilkins, or the survivor of them, to raise from and out of the aforesaid premises, or any part thereof, by such ways and means as they shall think fit, and to apply and pay the same for the advancement in life, according to the discretion of my said trustees or the survivor of them, of my grandson, Robert Cracroft, at the end of 12 months next after my grandson, Charles Watkins Cracroft, shall have attained the age of 23 years. And in case my said grandson, Charles Watkins Cracroft, shall happen to die before he attains the age of 23 years without leaving any issue male of his body lawfully to be begotten, then and in that case I do hereby request and direct the said Richard Da,vie8 and Jeffreys Wilkins, and the survivor of them, to receive, apply, and pay the annual rents and profits of all the surplus or remainder of my said real estate, and every part thereof, unto and to and for the use and benefit of my said grandson, Robert Cracroft, when and as soon as he shall attain the age of 23 years for and during the term of his natural life." The testator then made other provisions, not now necessary to be noticed, and the will proceeded thus : " And in order that my said grandsons may be duly and properly educated and brought up, I do hereby desire, authorise, and empower the said Richard Davies and Jeffreys Wilkins, and the survivor of them, and the executors, administrators, and assigns of such survivor, to lay out and expend the sum of .200 annually in the maintenance, education, and bringing up of my said grandsons, Charles and Robert...
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