Vincent against Stansfeld. Habergham against Vincent
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1793 |
| Date | 01 January 1793 |
| Court | High Court of Chancery |
English Reports Citation: 29 E.R. 931
BEFORE LORD CHANCELLOR LOUGHBOROUGH, ASSISTED BY JUDGES.
See Briggs v. Penny, 1849, 3 De G. & Sm. 547.
vincent against stansfeld. habergham against vincent. 15th June, tth July, [1793], before Lord Chancellor Loughborough, assisted by judges. [See Briggs v. Penny, 1849, 3 De G. & Sm. 547.] Heard at several times before Lord Thurlow. See the previous stage of the cause 1 Ves. jun. 410, and some subsequent points determined by Lord Eldon, C., 10 Ves. 273, et seg. A. by will duly executed and attested, gives certain interests in his estates, and in default of the persons to whom given, gives the same to trustees to such uses as he should declare by any deed executed in presence of two witnesses : he by deed poll attested by two witnesses declares further uses : The first question was, whether the devise is good under the stat. of frauds. 2dly. Such devise being to the heir of the surviving trustee; whether the devise be good, either by raising an estate for life in the survivor by implication, or as a contingent remainder, or an executory devise. (See per Lord Eldon, G., in Stansfield v. Habergham, 10 Ves. 280, 281, &c.) 3dly. With respect to the copyhold, whether the executory devise be supported by the freehold in the lord. It was held by Lord Loughborough, Chancellor, assisted by Mr. Justice Buller and Mr. Justice Wilson. 1st. That the deed was a testamentary act. 2d. That it did not pass the real estate because not executed according to stat. of frauds. (See in Buckeridge v. Ingram, 2 Ves. jun. 665, 666. Smart v. Prujean, 6 Ves. 560, &c. Banner v. Banner, 13 Ves. 379, and Rose v. Conynghame, 12 Ves. 29, 38, &c. See also in Sheddon v. Goodrich, 8 Ves. 481, 498, 499, &c.) 3dly. That it should pass the ultimate use of the copyhold as declaring the trust of the surrender. (See Tufffidl v. Page, 2 Atk. 37, and Barn. Rep. Ch. 9, which is a very good report of it. Vide etiam thereon, 1 Ves. 225, Hargr. Co. Litt. Ill b, and Carey v. Ashaw, 2 Bro. C. C. 58.) Samuel Hill, by will bearing date the 5th October 1759, devised as follows. " And first I give to my executors and trustees hereafter named, and to the survivor of them, all my personal estate and effects, to be by them applied towards payment of my debts, legacies, and other charges attending the execution of this my will: and concerning as well all my copyhold lands and estate situate in the Graveship of Sowerby, and manor of Wakefield, in the said county (which I have already surrendered to my trustees, their heirs and assigns, to and for such uses as I by my last will should declare), as also all my freehold messuages, tenements, cottages, mills, lands, fee farm and other rents and hereditaments whatsoever, situate, lying, and being, or arising within Sowerby and Hallifax or elsewhere, in the said county of York, in whose tenures or occupations soever the same now are or be, I give and devise the same, and all my interest, title, and claim therein, unto John Nuttall, and Robert Nuttall, both of Bury in the county of Lancaster, merchants, George Stansfield, of Sowerby, aforesaid, merchant, John Whitacre, [354] of Longwood-house, in the said county of York, merchant, and George Ramsden, of Clifton, in the said county of York, Gentleman, and the survivors and survivor of them, their and his heirs and assigns; in trust, that they and the survivors and survivor of them, their and his heirs, do and shall, by sale or mortgage of my three messuages and tenements, called Richard Scholfield's farm, Elkanah Hitchson's farm, and Clay fields, and by mortgage of the remainder of my freehold and copyhold estates, or of any part thereof, levy and raise such sum and sums of money as (with my personal estate), will be sufficient to discharge all my debts and legacies, and enable my trustees to complete my purchase and agreement made with the assignees of my son's estate and effects. And upon this further trust, to pay into the hands of Mrs. Susan Kay, widow, and her representatives £50 a-year, by half-yearly payments, to commence from my death, to be by her and them applied towards the maintenance and education of 932 HABERGHAM V. VINCENT 4 BED. 0. C. 355. my grand-daughter Betty Nuttall Hill, until she attains her full age, or is married; and likewise for my said trustees to pay into the hands of my son Richard Hill, for his support and maintenance, such sum and sums of money yearly, from my death, as they or the major part of them shall think proper, so as such payments do not exceed the yearly sum of £50, and to be continued during his life, or until all my debts, legacies, and incumbrances affecting my estates are fully satisfied. And after payment thereof, then (and not before) my said trustees shall pay my said son during his life, such other sum and sums of money as they, or the major part of them, shall, in his or their discretions, think necessary for his better support and maintenance, so as such additional payments do not in the whole exceed the yearly sum of £100, and to be in lieu of the said £50, and I do declare that what I hereby give to or for the use of my said son, is upon this condition, that he doth not in any wise intermeddle or concern himself with the education and fortune of his daughter, the said Betty Nuttall Hill, but leaves the same and the guardianship of her person, to the management of the said Susan Kay (her grandmother), and her representatives, during his said daughter's minority. And on my son's refusal to comply with the terms above, the said sum and sums of money hereby intended for his support, shall, from thenceforth, cease, and be afterwards applied towards [355] discharging of my debts, legacies, and other charges relating thereto ; and when the same are satisfied, and my real estate disincumbered (the testator then gave directions for building a bridge) and proceeded as follows; " and as touching " all my lands and real estate undisposed of by my said trustees for the purposes afore-" said, my will and mind is, that my said trustees, and the survivors and survivor of " them, and the heirs of such survivor, shall take and receive the yearly and other rents, " issues, and profits thereof, during the natural life of my son Richard Hill, or until his " said daughter shall attain her full age, or is married, upon trust to pay and apply the " same rents, issues, and profits to the said Betty Nuttall Hill, at her full age, or marriage, " which shall first happen ; and in case she should die before full age or marriage, then " in trust to pay and apply the same in such manner as is hereinafter mentioned, and " from and after the marriage of my said grand-daughter, or her attainment to full age, " my will and mind is, and I do hereby order and direct, that my said trustees, and the " survivors and survivor of them, and the heirs of such survivor, shall by good and " effectual conveyances and assurances in the law, well and effectually convey and " assure all and every my said real estate (so remaining unsold and undisposed of), unto " the said Betty Nuttall Hill, and her assigns, during her natural life, without impeach-" ment of waste, remainder to some person or persons, and his and their heirs, during " the natural life of the said Betty Nuttall Hill, in trust to preserve the contingent " remainders hereafter limited, and from and after her decease, to her first and other " son and sons successively in tail male in remainder, one after another, according to " their seniority of age and priority of birth, and for want of such issue, remainder to " the daughter and daughters (if more than one) of the said Betty Nuttall Hill, as tenants " in common, and the heirs of her and their body and bodies lawfully issuing; and for " want of such issue, my_ will and mind is, and I do hereby order and direct that my said " trustees and the survivors and survivor of them, and the heirs of such survivor, shall " by the ways and means aforesaid convey and assure all and every my said real estate " so remaining unsold and undisposed of, unto and for the use of such person or persons, " and for such estate or estates in fee simple, fee tail, life or lives, or years, or otherwise, " and subject and liable to such charges, provisoes, and conditions as /, by any deed or " instrument to be executed [356] by me, and attested by two or more credible witnesses, " shall in that behalf direct, limit, or appoint, and to and for no other use, intent, or " purpose whatsoever ; and as touching the rents, issues, and profits of my real estate, " which shall remain unsold, and which I have hereinbefore directed to be received " by my trustees, during the life of my son Richard Hill, or until my said grand-daughter " Betty Nuttall Hill, shall attain her full age or marry, now I do hereby will and direct " that in case my said grand-daughter shall die in the life-time of my said son, under the " age of twenty-one years, and without having ever been married, then the said trustees " shall pay and apply the rents, issues, and profits of the said estates by them received, " during the life-time of my said son Richard Hill, to the person or persons who shall " be entitled next in remainder to the said estate, on his, her, or their attaining full " age, and all interest for the same in the mean time." The said Samuel Hill, by deed poll, dated 6th of October 1759 (the day after the date of his will) and reciting his said will, directed as follows, " I do hereby direct, that the 4 BBO. C. C, SS7. HABEftGHAM V. VINCENT 933 " said trustees, and the survivors, &c., shall immediately after the death of my said " grand-daughter, and her failure of issue, by good and effectual conveyances and " assurances in the law, well and effectually convey and assure all and every my said " real estate so remaining unsold and undisposed of, unto the first son of the body of " my son Richard Hill on the...
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