Wheeler v Howell
| Jurisdiction | England & Wales |
| Judgment Date | 04 March 1857 |
| Date | 04 March 1857 |
| Court | High Court of Chancery |
English Reports Citation: 69 E.R. 1079
HIGH COURT OF CHANCERY
Discussed, Smith v. Hill, 1878, 9 Ch. D. 143.
Will. Charge of Legacies on Real Estate. Residuary Devise. Statute of Limitations. 3 & 4 Will. 4, c. 27, s. 42. Annuity. Arrears. Construction. Maintenance. Power to Raise. Implication of, From Context.
[198] wheeler v. howell. March 2, 4, 1857. [Discussed, Smith v. Hill, 1878, 9 Ch. D. 143.] Will. Charge of Legacies on Real Estate. Residuary Devise. Statute of Limitations. 3 & 4 Will. 4, c... 27, s. 42. Annuity. Arrears. Construction. Maintenance. Power to Eaise. . Implication of, from Context. The principle of the decisions in reference to the question whether a charge on real estate is affected by reason of a residuary devise is the same in the case of legacies as in that of debts, and is this, that where residuary real and personal property is given in one mixed fund to the executor, who is to pay debts 'and legacies, there legacies as well as debts are charged upon the real estate. Testator, after bequeathing a legacy, and expressly charging part of his real estate with an annuity to the legatee, devised and bequeathed all the rest, residue and remainder of air and singular his real and personal estate (subject to his debts, funeral and testamentary expenses) to trustees, whom he also appointed executors, upon certain trusts. Held, following Francis v. Clemow (Kay, 435), that the legacy was well charged upon the real estate. Arrears of an annuity charged upon a reversionary interest in land, held recoverable 1080 WHEELEE V. HOWELL 3K.&J. 199. more than six years after the same became payable, the statute 3 & 4 Will. 4, c. 27, s. 42, having no application so long as the interest is reversionary. Power by sale or mortgage to raise money for maintenance implied from an unfinished clause in a will, purporting to provide for the event of a deficiency of funds for that purpose. William Davies, by his will, dated 1846, bequeathed to the Plaintiff the sum of £50, also an annuity of £52 during her life, which annuity he thereby expressly charged upon all his real estate in the parish of Churchstoke, in the county of Montgomery ; and, after directing the annuity to be paid half-yearly, and to be recoverable in like manner with rent reserved upon common demises, he proceeded as follows :-" And as to all the rest, residue, and remainder of all and singular my real and personal estate, whatsoever and wheresoever situate (subject nevertheless to the payment of all my just debts, funeral and testamentary expenses, and the...
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