Windus v Windus
| Jurisdiction | England & Wales |
| Judgment Date | 05 August 1856 |
| Date | 05 August 1856 |
| Court | High Court of Chancery |
English Reports Citation: 43 E.R. 1347
BEFORE THE LORD CHANCELLOR LORD CRANWORTH AND THE LORDS JUSTICES.
S. C. 26 L. J. Ch. 185; 2 Jur. N. S. 1101.
[549] windus -o. windus. Before the Lord Chancellor Lord Cranworth and the Lords Justices. August 2, 5, 1856. [S. C. 26 L. J. Ch. 185; 2 Jur. N. S. 1101.] A testator by his will gave several pecuniary legacies including one to his son E. and devised his freehold, copyhold and leasehold estates to his sons T. and A. as tenants in common and he appointed them his residuary legatees and executors. T. died, and by a codicil the testator appointed E. executor in the room of T. and revoked the legacies given to A. and E. by the will and he appointed them " residuary legatees " and he declared that certain freehold and leasehold property comprised in his marriage settlement and which he had power to appoint should go to the " residuary legatees his sons " A. and E. Held, that the moiety of the real estate devised by the will to T. had lapsed and descended on A. as the testator's heir at law, he taking also the other moiety as devisee under the will. Held, also, that in this will the appointment of A. and E. to be "residuary legatees " did not pass to them the testator's real estate. This was an appeal from a decision of the Master of the Rolls, upon a question of construction arising out of the will and codicil of Thomas Windus, the suit being instituted for the purpose of determining the question. The testator, having under his marriage settlement power to appoint certain freehold and leasehold estates together with two sums of stock, and being in his own right possessed of freehold, copyhold and leasehold estates and other personal estate of considerable value, made his will, dated the 21st February 1837 : he thereby gave a legacy of 5000 to each of his five daughters which legacies he directed to be invested in the names of his sons Thomas Windus and Ansley Windus and his nephew Benjamin Godfrey Windus and to be paid as in his will mentioned: he also gave to his son Eric Windus the sum of 5500 and to his son Alfred Tubb Windus the sum of 5000 to be vested interests on their attaining the age of twenty-five years to be invested in the meantime in Government or real securities, and the dividends and interest thereof to be applied for their maintenance education and advancement in life. The testator then directed his [550] leasehold house and establishment at Stamford Hill, or such other residence as he might have at the time of his decease, to be kept up and maintained for the use and benefit of his unmarried sons and daughters for the space of two years next after his decease, and that for that purpose any sum not exceeding 1000 per annum might be applied by his executors out of his residuary estate; and that 50 per annum should during the same period be applied by his trustees and executors for the clothing and educating of each of his three younger daughters and his two younger sons, to be also paid or provided for out of his residuary personal estate: and as to all his freehold, copyhold and leasehold messuages or tenements, hereditaments and premises situate in the City of London and county of Middlesex or elsewhere he did thereby give, devise and bequeath the same with the appurtenances unto and to the use of his said sons Thomas and Ansley equally between them as tenants in common their respective heirs, executors, administrators and assigns according to the nature and quality thereof ; and &a to all the rest, residue and remainder of his personal estate and effects whatsoever and wheresoever whereof he might die possessed or entitled to in possession, reversion, remainder or expectancy or otherwise howsoever after payment of the several legacies thereinbefore bequeathed and of such other legacies as he might give by any codicil to his will he did thereby give and bequeath the same unto his sons Thomas and Ansley equally to be divided between them share and share alike. The testator then appointed his said two sons Thomas and Ansley and his said nephew Benjamin Godfrey Windus executors of his will and guardians of his sons Eric and 1348 WINDUS V. WINDUS 8 DE 0. M. & 0. HI. Alfred Tubb and his unmarried daughters during their respective minorities, and he enjoined his two elder sons who from their more mature age he desired to place in loco parentin to their younger brothers and sisters that they would at [551] all times and on all occasions give them their advice and assistance. Thomas Windus the testator's eldest son died in June 1838 without issue and intestate. The testator afterwards made a codicil to his will, dated the 19th August 1843 in the fallowing terms:-"I Thomas Windus of Stamford Hill in the county of Middlesex do declare this to be a codicil to my last will and testament bearing date the 21st February 1837 Whereas since the making of the said will my son Thomas Windus hath departed this life in the place and stead of him I do hereby constitute and appoint my son Eric Windus jointly with his brother Ansley Windus also my daughter Matilda Moore as an executrix in the room of my nephew Benjamin Godfrey Windus whose former appointment I do hereby revoke being well convinced from many circumstances that have occurred he would not act My said two executors and executrix are to act also as trustees with the same powers and the same indemnity as if originally mentioned both as executors and trustees I do also revoke the legacies to my aforesaid two sons Ansley and Eric Windus and do appoint them residuary legatees share and share alike The property I enjoy and possess under my late dear wife's marriage settlement and which I have a right to dispose of as I please to one or more amongst my children now I do desire that the funded property 1435, 15s. 7d. 3 per cent, consols and 580, 2s. 4d. 3, 10s. formerly 4 be appropriated towards the invested bequests in the 3 per cent, consols and Reduced which bequests to my son Alfred and my five daughters I wish to be in those funds of the sums mentioned in stock and not in money and free of all law expenses commission or legacy duty all which expenses are to come out of the residue. I do [552] declare that the freehold in Whitecross Street and the leasehold property in Peiitonville Compton Street Soho and elsewhere agreeable to the said marriage settlement I mean to go to the residuary legatees my sons Ansley Windus and Eric Windus share and share alike I do hereby revoke that part of my will ordering the house at Stamford Hill to be continued to he occupied by the family leaving it to the discretion of my two sons the residuary legatees to act as they please about it" " My son Ansley Windus has my full permission although an executor to transact the law business relative to my will and this my codicil and to be defrayed all law charges and other reasonable expenses Also my other executor Eric and my daughter Matilda to be entitled to the same expenses incurred." The testator died on the 13th December 1854, leaving A. Windus his then eldest son and heir at law; and a question arose as to who was entitled to the moiety of the freehold copyhold and leasehold hereditaments belonging to the testator in his own right and which were devised by the will to Thomas Windus. Ansley Windus the Plaintiff in the present suit claimed this moiety as heir at law of the teatator, insisting that it had lapsed by the death of Thomas Wrindus in the testator's lifetime as above mentioned. Eric Windus, on the other hand, claimed to be entitled to it under the joint effect of the will and codicil and as being expressly substituted by the latter instrument in the place of Thomas Windus. The cause came on to be heard before the Master of the Rolls in February 1856 when His Honour decided in favour of the Plaintiff. A very full statement of the [553] arguments and authorities by which each party supported his contention will be found in the report of the case in the 21st Volume of Mr. Beavan's Reports, p. 373. The Defendant Eric Windus appealed. The appeal came on in the first instance before the Lords Justices, who, after hearing it partially argued, arranged that it should be brought on before the full Court of Appeal to be argued by one counsel on each side. It now came on for hearing accordingly. Mr. R. Palmer (with whom was Mr. Rogers) argued the case on behalf of the Appellant. He submitted that the clear intention of the testator was to substitute Eric for Thomas in respect of all the benefits given to the latter by the will. In support of this, he relied on the general scheme of the will, upon the particular wording of the codicil, arid especially on the way in which the testator there 8DEO.M.ftO.BM. WINDUS V. WINDUS 1349 connected the mention of Eric Windus in his character of residuary legatee with the devise of real estate. He cited the cases of Day v. Daveron (12 Sim. 200), Davenport v. Coltman (12 Sim. 588), Evans v. Croslie (15 Sim. 600), to shew that the expression " residuary legatee " might be read so as to give effect to such an intention of the testator as that now insisted upon (see also Hope v. Taylor (1 Burr. 268), Hanlacre v. Nash (5 T. E. 716)); and mentioned generally Alleyne v. Alleyne (2 J. & Lat. 544), Pitman v. Stevens (15 East, 505), Den v. Trout (15 East, 394), Warren \. Newton (Drury, 464), The Marquis of Titchfield v. Horneastle (2 Jur. 610), Undtrwood v. Wing (4 De G. Mac. & G. 633). [554] Mr. Swanston (with whom were Mr. Lewin and Mr. Foot) supported the decision of the Master of the Rolls. He submitted that the heir could only be disinherited by express words or plain intention ; that if there was any doubt as to the intention the title of the heir must prevail. He commented on the authorities cited on the other side, referring to the report of Davenport v. Coltman as given in 9 M. & W. 481. He cited Sliaw v. Bull (12 Mod. 592), Kellett v. Kellett (3 Dow, 248), Doe v. Roberts (7 M. &...
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