Tuckers v Kayess
| Jurisdiction | England & Wales |
| Judgment Date | 30 April 1858 |
| Date | 30 April 1858 |
| Court | High Court of Chancery |
English Reports Citation: 70 E.R. 142
HIGH COURT OF CHANCERY
Will. Construction. Lapse. Devise charged with Legacy. Purpose of Legacy Failing. Legacy sinking into Devised Estate. Heir at Law. Residuary Devise.
[339] tucker v. kayess. April 30, 1858. Will. Construction. Lapse. Devise charged with Legacy. Purpose of Legacy Failing. Legacy sinking into Devised Estate. Heir at Law. Residuary Devisee. Bequest to executors of a sum of money " to be chargeable and paid as thereinafter mentioned," upon trust for testator's wife for life, remainder for his children ; then a gift of certain freehold and leasehold property to his nephew, " subject to the payment" of the said sum and to testator's debts; with a residuary devise and bequest to the wife absolutely. Held, as between testator's widow and his nephew, the sum was a charge on the gift to the nephew, and not an exception out of that gift; and testator never having had any child, the sum, subject to the widow's life interest, belonged to the nephew: the principle being that, where there is a gift by will of any property, whether real or personal, subject to a particular charge, if any of the purposes of the charge fail before all are satisfied, the donee takes the property relieved from the residue of the burthen, which, in the events that have happened, the testator no longer intended him to-bear. Test in all such cases. Is the thing in question excepted out of the devised property -in other words, did testator mean to give that property minus the thing in question, or is it a charge on that property 1 If the former, then, the purpose failing, it goes to the residuary devisee ; if the latter, to the devisee of the property charged. Whether a sum of money to be paid out of an estate has ever been held to be an exception-gucere. A special case. John Tucker, by his will in 1853, bequeathed as follows :-"I give and bequeath unto my trustees and executors hereinafter named the sum of £10,000, to be chargeable and paid as hereinafter mentioned." He then directed them to invest that sum, and to pay the interest to his wife for life, and after her decease to hold the principal in trust for his children as therein mentioned. After which he proceeded as follows : -"I give and bequeath unto my nephew, James Kayess, subject to the payment of the said sum of £10,000 within twelve months after my decease, and the payment of my debts, and funeral and testamentary expenses, all my print works...
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