William Abbott and Others, - Appellants; Eliza Middleton and Others, - Respondents. George H. M. Ricketts, - Appellant; G. W. W. Carpenter, - Respondent
| Jurisdiction | England & Wales |
| Judgment Date | 15 July 1858 |
| Date | 15 July 1858 |
| Court | House of Lords |
English Reports Citation: 11 E.R. 28
House of Lords
Mews' Dig. i. 252, 370, 372; xv. 705. S.C. 28 L.J. Ch. 110; 5 Jur. N.S. 717; and, below, 21 Beav. 143; 25 L.J. Ch. 113; 1 Jur. N.S. 1126; 4 W.R. 69. On point (i) as to supplying words, distinguished in Eastwood v. Lockwood, 1867, L.R. 3 Eq. 491; (ii) as to rule for construction of wills (7 H.L.C. 89), adopted in Gordon v. Gordon, 1871, L.R. 5 H.L. 254; Taylor v. St. Helen's Corporation, 1877, 6 Ch. D. 271; In re Hudson, 1882, 20 Ch. D. 417; Rhodes v. Rhodes, 1882, 7 A.C. 204; Maharani Indar Kunwar v. Maharani Jaipal Kunwar, 1888, L.R. 15 Ind. App. 147; and cf. Sheridan v. O'Reilly (1900), 1 I.R. 386.
Will - Supplying Words - "But" - "Dying" "without Issue" - Practice - Two Appeals - Costs.
WILLIAM ABBOTT and Others,-Appettamte; ELIZA MIDDLETON and Others,- Respondents. GEORGE H. M. EICKETTS,-Appellant; G. W. W. CARPENTER,-Respondent [June 3, 4, 7; July 9, 12, 15, 1858]. [Mews' Dig. i. 252, 370, 372; xv. 705. S.C. 28 L.J. Ch. 110; 5 Jur. N.S. 717; and, below, 21 Beav. 143; 25 L.J. Ch. 113; 1 Jur. N.S. 1126; 4 W.R. 69. On point (i) as to supplying words, distinguished in Eastwood v. Lockwood, 1867, L.R. 3 Eq. 491; (ii) as to rule for construction of wills (7 H.L.C. 89), adopted in 28 ABBOTT V. MIDDLETON-RICKETTS V. CARPENTER [1858] VII H.L.C., 69 Gordon v. Gordon, 1871, L.R. 5 H.L, 254; Taylor v. St. Helen's Corporation, 1877, 6 Ch. D. 271; In re Hudson, 1882, 20 Ch. D. 417; Rhodes v. Rhodes, 1882, 7 A.C. 204; Maharani Indar Kwvwar v. Maharani Jaipal Kunwar, 1888, L.K. 15 Ind. App. 147; and of. Sheridan v. O'Reilly (1900), 1 I.E. 386.] Will-Supplying Words-" But "-" Dying " " without Issue "-Practice-ò Two Appeals-Costs. A testator gave an annuity of £2000 to his widow, and set apart, out of his personal property, a sum sufficient to provide for its payment. He then directed that, on the death of his widow, the sum so set apart should " become the property of my son George, so far as he shall receive the interest during his life, and on his death the principal sum to become the property of any children he may leave, in such sums as he shall direct, but in the event of my son dying before his mother, then the principal sum to be divided among the children of my daughters, the deceased Jane R. and Mary P., and of my now surviving daughter, Elizabeth M. (should she leave any issue) in equal portions." George married after the date of the will, had one son, and died before the testator : '?:ò-òòò- ---..ò :òòòòò'òòò ; Held, affirming the decree of the Master of the Rolls, that on the death of the testator's widow, the son of George became entitled to the fund which had been set apart to provide the annuity, for that the property in it vested in the children of George, independently of their father, wb.0' merely took a life interest in it. Two appeals in the same interest and raising the same point were presented. One set of Appellants claimed to' be entitled to' one-third, the other to two-thirds of the property in dispute. Though the ambiguity was declared to have arisen from the act of the testator in framing the will, yet as there had been two separate appeals when one would have been sufficient, the House refused to make any order as to costs. [69] These were appeals against a decree of the Master of the Rolls, made in a suit instituted to ascertain the construction to be put upon the will of General Carpenter. The testator was possessed of considerable personal estate in England and the East Indies. Being at the Cape of Good Hope in March 1834, he made his will, by which he bequeathed to his wife, Hester, an annuity of £2000, to provide for which he set apart certain portions of his property. The will then went on thus: " And on her decease the sums provided and set apart for such payment to- become the property of my son, George Carpenter, now a captain in His Majesty's 41st Regiment of Foot, so far as he, the said George Carpenter, my son, shall receive the interest on such sum during his life, and on his demise-, the principal sum to become the property of any child or children he may leave born in lawful wedlock, and in such sums as my said son shall will and direct; but in case of my son dying before his mother, then, and in that case, the principal sum to be divided between the children of my daughters, the deceased Jane Ricketts and Mary Paxton, and of my now surviving daughter, Eliza Middleton (should she leave any issue), in equal portions to each." He then gave specific sums of money to Mrs. Middleton and all his living grandchildren, with the benefit of survivorship among them. The bequest toi Mrs. Middleton was in these terms: " To my daughter, Eliza Middleton, I bequeath the sum of," etc., " the interest of which to be for her sole benefit during her life, and the principal, on her demise, to deiscemd to any child or children she may leave, if more than one, in equal portions to each. And, in the event of her not leaving issue, then, and in that case, I will that it shall become the property of," etc. He appointed his son, George Carpenter, residuary legatee of "all property not disposed of in this [70] document;" and named his wife, Hester, and his son, George, executrix and executor of his will. At the time this will was made, Captain George Carpenter was unmarried, but he married soon afterwards, namely, on the 4th July 1834, and, had a son born to him, George William Wallace Carpenter (the Appellant), on the 10th May 1835. Captain George Carpenter attained the rank of lieutenantrcolonel in his regiment, and was killed at the battle of Inkermann 5th November1 1854. The testator died on the 16th January 1855; his wife Hester died soon afterwards. She had re- 29 VIIH.L.C., 71 ABBOTT V. MIDDLETON-KICKETTS V. CARPENTER [1858] nounced probate; and letters of administration, with the will annexed, were granted to the testator's daughter, Mrs. Eliza Middleton. In April 1855, William Abbott and A. F. Paxton, the trustees under the marriage settlement of -one of the testator's granddaughters, filed their bill against George William Wallace Carpenter, Mrs. Eliza Middleton, and others, praying the execution of General Carpenter's will. The cause came on for hearing before the Master of the Eolls, who, by a decree of the 16th April 1856, declared that, accdrding to the true construction of the will, in the events that had happened, G. W. W. Carpenter, as the only son of the testator's son, George Carpenter, took a vested interest at. the testator's death in the capital of the fund set apart to answer the annuity to the widow, subject to her life interest therein (21 Beav. 143). The appeal was against this decree. The Attorney-General (Sir F. Kelly), and Mr. R. Palmer (Mr. Lorence Bird was with them), for the Appellants.*--The principle that the. words in a will must be read in [_T1] their ordinary sense as written, was1 expressly declared in this House in the recent case of Grey v. Pearson (6 H.L. Gas. 61), and is that on which this case must be decided. Words not used by the testator must not be interpolated in a, will in order to give to it a meaning which must be purely conjectural, and to. dispose of property upon an event whichThe had never contemplated. Brownsword v. Edwards (2 Ves. Junr. 243, 246) and Doe d. Usher v. Jessop (12 East, 288) were fully considered in Grey v. Pearson, and the principle laid down in the latter was preferred. Denn d. Baddyffe v. Bagshaw (6 Term Rep. 512) is a clear authority to. the same point. The estate here never vested in George Carpenter. In Hodgson v. Ambrose, Lord Mansfield said (Doug. 340), " The words ' for want of such issue,' mean the same thing as ' and after such estate tail,' and this; is the common, case of a. remainder after an estate tail, where, if the first estate never takes place, the remainder vests in possession immediately;" and there, the devise having been to. A. and the heirs of his body, and for want of such issue to B., and A. having died in the lifetime of the testator, the estate, though he left a. son, was held to' go. over to. B. t'o' give this will the construction here contended for by the Respondent, it is necessary to introduce after the word " dying " the words;, " without issue'," that is to tamper with the will, and to make a new devise for the testator. Nothing but absolute necessity can justify that: Ker v. Innes (5 Paton's Sc. App. 422; per Lord Eldon). There is no. such necessity here. There was such a necessity in Spalding v. Spalding (Cro. Car. 185), which [72] alone warrants the construction put upon that will, and soi it is considered by Mr. Justice Buller in Doe d. Dacre v. Dacre (1 Bos. and Pul. 250, 260). The same answer may be given to Newburgh v. Newburgh (Law of Property, 196, 206, 207). Mere apparent intention on the part of the testator will not justify the Court in introducing words which he has not used, or in, giving them any but. their natural and ordinary construction: Holmes v. Cradock (3 Ves. 317), Parsons v. Parsons (5 Ves. 578), Toldervy v. Colt (1 Mee. and Wels. 250), Gundry v. Pinniger (1 De G. M. and Gord. 502). On the face of this will it is plain that the children of George Carpenter are to take, through him, which they could not do. in the event which has happened, since he himself wag never in enjoyment of the property. Shuldham v. Smith (6 Dow, 22) is therefore in point. It is clear from the gift to. Mrs. Middleton's children, that when the testator meant dying without leaving issue, he knew perfectly well ho-w to express, himself. He has not so expressed himself here., and the intention of adding that qualification cannot be imputed to him. This is not like the case where an absolute estate of inheritance has been given to the children before the words creating the gift over, as in Anonymous...
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