Wright v Atkyns
| Jurisdiction | England & Wales |
| Judgment Date | 07 February 1815 |
| Date | 07 February 1815 |
| Court | High Court of Chancery |
English Reports Citation: 34 E.R. 98
HIGH COURT OF CHANCERY
S. C. 19 Ves. 299; G. Coop. 111; T. & R. 143. See Grant v. Lynam, 1828, 4 Russ. 297; White v. Briggs, 1848, 2 Ph. 587; Lady Langdale v. Briggs, 1855-56. 3 Sm. & G. 246; 8 De G. M. & G. 420; Smith v. Gibson, 1871, 25 L. T. 560; Burt v. Hellyar, l872, L. R. 14 Eq. 164; Wingfield v. Wingfield, 1878, 9 Ch. D. 664; In re Williams, 1897 2 Ch. 20.
[255] wright v. atkyns. Bolls. Nov. l?,th, 1809; Aug. llth, 1810. [S. 0.19 Ves. 299 ; G. Coop. Ill ; T. &. R. 143. See Grant v. Lynam, 1828, 4 Russ. 297; While v. Briggs, 1848, 2 Ph. 087; Lady Langdale v. Briggs, 1855-56. 3 Sm. & G. 24G : 8 be G. M. & G. 420 ; Smith v. Gibson, 1871, 25 L. T. 560 ; Burt v. I/e%ar,'l872, L. R. 14 Eq. 164; Wingfield v. Wing field, 1878, 9 Ch. I). 664 ; In re Williams, [1897] 2 Ch. 20.] Devise and bequest of real and leasehold estates to the devisor's widow, and her heirs for ever," in the fullest confidence that after her decease she will devise the property " to my family," held an estate for life only, with remainder in trust for the devisor's heir, as persona designata. Wright Edward Atkyns by his Will, dated the 29th of October 1804, devised and bequeathed all his manors, &c., as well leasehold, as freehold and copyhold, or of whatsoever tenure, in Ketiering,and other places mentioned, in the county of Norfolk, and all other his real estate, unto his mother Charlotte Atkyns, and her heirs for ever, 17 VES. .TUN. 250. WRIGHT V. ATKYNS 9'J in the fullest confidence, that after her decease she would devise the property to his family ; and he thereby subjected and charged the aforesaid hereditaments and premises with, the payment of all his just debts that he should owe at the time of his decease ; and he gave and bequeathed to his aforesaid mother all his goods chattels and personal estate for her own benefit, after payment of his debts, funeral expences, &c.; and appointed his mother sole executrix. The testator died, without issue ; leaving the Plaintiff, his uncle, heir at law ; and. entitled to two sums of 2700 and 1000, as personal representative of a mortgagee ; being also the trustee under a conveyance by the testator's father, subject to those mortgages upon trust for payment of debts by sale ; and the Bill was filed against Charlotte Atkyns, the devisee and executrix ; praying an account of what was due for principal and interest upon the mortgages ; and that the Defendant may be decreed to pay the same ; in case the Court should be of opinion, that she is entitled to the fee-simple and inheritance of the estates devised : or in default of payment, or, in case the Court should be of opinion, that the Defendant is entitled to an estate for life only, and therefore, not bound to pay the Plaintiff, then that the same may be raised by sale. [258] Mr. Richards, Sir Samuel Bomilly, and Mr. Heys, for the Plaintiff. A trust may be raised according to the authorities in the Civil Law, and has frequently been raised in the Courts of Equity of this country, upon words much less mandatory than those of this Will. To support the Plaintiff's claim to the estate, and confine the Defendant to an estate for life, two incidents must be combined : the subject and the object must be certain. The property, which is the subject of this devise, is certain ; viz. all the real estate of the devisor : but the objection of uncertainty will be applied to the object of his disposition, not. more precisely pointed out than by the general description, " my family." That is a sufficient description for this purpose within Pierson v. Garnet,(l) and the other authorities; attending to the nature of the subject of disposition, real estate, this description must be understood the head of the family ; the heir, representing the family ; as the term " relations " has been, construed those, who would have taken the personal property. The devisor must have contemplated some part of his family, distinct from, his mother's line. This construction is supported by the opinion, expressed in Chapman's Case ; (2) [257] interpreting the word " house " by " family " ; which opinion, is referred to in the case of Counden v, Clerke (Hob. 29 ; see 33), and in Crossly v. Clare (Amb. 397). The only authority against that is Harland v. Trigg (1 Bro. C. C. 142) ; upon words certainly much resembling these ; but with peculiar circumstances ; and the authorities, applicable to this point, do not appear to have been cited. The subject was leasehold estate ; and it was very difficult to say, who was intended. He could not, as to the leaseholds for years, have contemplated the distribution among the next of kin ; those persons, who in case of an intestacy were the family, with reference to that description of property : the words, importing a long course of limitation, as of real estate, as far as the rules of Law would admit : the limitation expressed as to the leaseholds for lives. The word " family " is riot less familiar, in the English Law, as nomen collectionum, than " stock," or " relations"; meaning those, who are descended from the common ancestor. If however these words are too uncertain to support the limitation over as a devise, the Plaintiff's title, as heir at law, must prevail by way of resulting trust. [258] Mr. Leach, Mr. Hall, and Mr. Bell, for the Defendant. Though the title of the Plaintiff, as heir, must be contingent during the Defendant's life, he has a right to a decision of this question, as much, as if it was vested. The Law upon this subject was settled by Lord Thurlow in Ilarland v. Trigg (1 Bro. C. C. 142); having previously been open to much contradiction ; of which the case of Cunliffe v. Cunlifle (Amb. 686) is an instance. There is no doubt, that these words are sufficient to create a trust : but for that purpose certainty, both as to the property and the object,"is necessary. If the party, first entitled, has the power of spending any part of the property, as in Wynne v. Hawkins (1 Bro, C. C. 179), the subject of disposition is not certain. In this instance that is certain : but there is no certainty as to the object; which must be defined, so that some person my apply to have the property secured : otherwise the Court will not act. That is the clear result of the authorities, as established in Ilarland v. Trigg upon sound principle. It cannot be represented, that the word " family" has acquired a certain, technical, sense ; binding the Coiirt to con- 100 WRIGHT V. ATKYNS 17 VEB. JUIT. 259. sider the heir at law as pointed out. That was not decided in Chapman's Case ; which a fiords no authority upon this question, except an extrajudicial opinion. Admitting, that the Defendant has a discretion to distribute among the members of the testator's family, the construction, confined to the heir at law, excluding all discretion, cannot be supported ; and the supposition, that he meant to leave her no discretion, would be most extraordinary : the expression clearly importing, that she should [2,59] give to such members of his family as she pleased : no one answering the description, except as the object of her choice. Admitting the case of Gruwys v. Colman (9 Ves. 319) to be soundly determined, as a bequest to the next of kin, Bridget Gruwys by making no disposition leaving it to be understood, that all had behaved well to her, here the object must be selected ; and there is .no person entitled by such selection to call for an execution of the trust. The term " family,'" extending through tho lines of both parents, is too general and uncertain to present a definite object; which might have been described by " children " ; or any other class less numerous, and more easily ascertained ; according to the correct view, taken of this subject by the Lord Chancellor in Morice v. The Bishop of Durham (10 Ves. 522 ; see 535, 6). There is scarcely a more vague denomination than " family." What rule is to determine among the various interpretations; and, if it could be confined to the heir at law, between the heirs Ex parte palerna & materna 1 In Mac Lerotlt, v. Bacon (5 Ves. 159) Lord Alvanley upon the whole Will thought tho husband included in the description of the " family " of his wife ; which is not the natural construction, according to Barnes v. Patch (8 Ves. 604). The conclusion is, that this term having no distinct and accurate sense, the interpretation must depend upon the tenor of the whole instrument. Mr. Richards, in Reply. The construction, given to the word " family " so long ago as Chapman's Case (Dy. 333), followed by Counden v. Clerke (Hob. 29 ; see 33), and Crossly v. Clare (Amb. 397), considering it [260] when applied to real estate, as denoting the heir at law, has never been impeached ; and corresponds with the natural meaning. A devise to a man's family, that is, to go in his family, can only be effectuated by a devolution in the course of law to the eldest son; if not Interrupted by particular limitation. Aug. 17lh, 1810. TheMasler of the Rolls [SirWm. Grant]. In this case I am. called upon to determine incidentally, what interest the Defendant...
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Wright v Atkyns
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