Williams v Hensman
| Jurisdiction | England & Wales |
| Judgment Date | 10 June 1861 |
| Date | 10 June 1861 |
| Court | High Court of Chancery |
English Reports Citation: 70 E.R. 862
HIGH COURT OF CHANCERY
S. C. 30 L. J. Ch. 878; 7 Jur. (N. S.) 771; 5 L. T. 203. See In re Wilks [1891], 3 Ch. 63; Palmer v. Rich. [1897], 1 Ch. 143.
Will. Joint - Tenancy. Severance.
[546] williams v. hensman. June 8, 10, 1861. S. C. 30 L. J. Ch. 878; 7 Jur. (N. S.) 771; 5 L. T. 203. See In re milts [1891], 3 Ch. 63; Palmer v. Rich [1897], 1 Ch. 143.] Will. Joint-Tenancy. Severance. A money fund was bequeathed to be invested in stock to pay an annuity to A., " the principal to go to her children at her death." Held, a joint-tenancy. There were eight children, who, in the life of the tenant for life, concurred in signing an authority to the trustee-which was acted on-to invest the fund on mortgage, three of the children being minors at the time. Held, that the shares of the five were thereby severed from the three, though not from one another. The trustee advanced to one of the children the estimated amount of his share, the tenant for life providing for the interest on the amount, and all the other children jointly and severally covenanted not to call upon the trustee to make up any deficiency in case the share should fall short of the advance, and also to indemnify the trustee against all claim, damage and expenses by reason of the advance. Held, that this severed all the shares. One of the children survived the tenant for life, and called for payment of her share. The payment was delayed by reason of the trustee having mixed up the fund with his own money on mortgage, and not being able to convert it immediately. Before payment, the child died. Qucere, whether this transaction would have sufficed to sever her share. Where joint-tenants, by their conduct, treat their interests as several, the effect of this, in severing the joint-tenancy, is not prevented by the circumstance that they were not aware that their interests were originally joint. Sarah Creak, widow, deceased, by her will, dated the 16th day of February 1828, bequeathed 200 a year to Mrs. Hensman, of Kimbolton, to be placed in the stocks, .and the principal to go to her children at her death, all the rest of her estate and effects to be equally divided between the three persons therein named ; and by codicil without date she directed as follows :-" Only 4000 to go to pay Mrs. Hensman's .annuity of 200." The testatrix died on the 23d of February 1828, and administration of her estate and effects, with her will and codicil annexed, was granted to Buswell Hensman, since deceased. The said Mrs. Hensman had, at the date of the testatrix's death, the following .eight children only, that is to say, Bethiah Hensman, since deceased, the Defendants, U. &H.547. WILLIAMS V. HENSMAN 863 Rebecca [547] Ann Palmer and Sarah Maria Hensman, Caroline-the late wife of the Plaintiff-and the Defendants, William Hensman, John Hensman, Frederick Hensman and Harriette Hensman. The said eight children all attained the age of twenty-one years; and she had no child born after the said testatrix's decease. The tenant for life and her eight children, none of her daughters being then married, and John Hensman, Frederick Hensman and Harriette Hensman, being the minors, signed the following document, addressed to the administrator of the testatrix :- " 13th October 1828.-We hereby approve of your paying, and request you to pay, the annuity left to Mrs. Hensman, of Kimbolton, by Mrs. Creak, half-yearly, although there may be doubt whether she is entitled to any portion of a year's annuity until the end of that year; and, on her death, we call upon you to repay the last half-yearly payment made her, on the ground that you should have paid nothing till the end of the year; and, further, we agree to the first half-yearly payment being made to her now; and, further, we agree to your investing.the 4000, out of which her annuity is directed to come, on mortgage of freehold or copyhold estates, at 5 per cent, interest; and we consent to your making such investments for two years certain; and in case of Mrs. Hensman's death before the expiration of such two years, we will not claim the principal so invested until the end of such two years, but will affirm the investment and take the interest pending the two years, and then receive the principal." The said document was acted on, and the investment therein mentioned was soon afterwards made. The Defendant, Rebecca Ann Palmer (late Hensman), [548] intermarried with the Defendant, Hanslip Palmer, on the 3d of July 1829. By the settlement made in contemplation of the marriage, dated the 3d of June 1829, after reciting that the said Rebecca Ann Palmer was entitled, amongst other sums, to a share in the said sum of 4000 bequeathed by and under the will of the said Sarah Creak, on the death of the said Mrs. Hensman, the said Rebecca Ann Palmer, with the approbation of the said Hanslip Palmer, assigned unto the trustees, their executors, administrators and assigns, amongst other things, all that her share of and in the sum of 4000, payable to her on the death of the said Bethiah Hensman, her mother, and on that event bequeathed to the said Rebecca Ann Palmer, as one of the children of the said Mrs. Hensman, by the said will of the said Sarah Creak, to hold unto them, their executors, administrators and assigns, upon trust to invest the same as therein mentioned, and to hold possession thereof in trust for the separate use of the said Rebecca Ann Palmer during her life, with a restraint on anticipation ; and after her decease in trust for the said Hanslip Palmer, during his life; and after the decease of the survivor of them, on the trusts therein declared for the benefit of their children. The following document was found among the papers of Bethiah Hensman after her decease :- "Whereas Sarah Creak, of Finsbury Square, London, by her will, dated 18th day of February 1828, bequeathed the sum of 4000, to be placed in the stocks, the interest thereof...
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