Wright v Pearson
| Jurisdiction | England & Wales |
| Judgment Date | 06 June 1758 |
| Date | 06 June 1758 |
| Court | High Court of Chancery |
English Reports Citation: 28 E.R. 629
HIGH COURT OF CHANCERY
Distinguished, Greenwood v. Verdon, 1854, 1 K. & J. 89.
[119] wright . pearson. 30th & 31st May, 6th June, 1758. [Distinguished, Greenwood v. Verdon, 1854, 1 K. & J. 89.] The same construction ought to be put upon words of limitation in cases of trusts and of legal estates, except where the limitations are imperfect, and something is left to be done by the trustees ; and therefore a devise of a trust was held to be an estate tail, from the apparent intent of the testator, and the general words of the will, though there was a limitation to trustees to preserve contingent remainders, a reference to issue male living at the time of the decease of the devisee, a restriction of failure of issue male to the lifetime of persons in esse, and a limitation in fee annexed to the words "heirs of the body."-S. -C. Amb. 358; Fearne, C. B. 126; Hill, MSS.; Perryn, MSS. (Mr. Fearna has observed upon this case, that " a stronger could scarcely be imagined, scarcely wished for, by the most zealous assertors of the rule." in Shelly's case, C. E. 133.) Henry Rayney, by his will bearing date the 2d of May 1727, devised his estate at Darsfield and Boyston, in the county of York, to George Wright and Joseph Bateman, and their heirs and assigns for ever, in trust, out of the rents, issues, and profit, to raise 500, with interest, to be equally divided between his five grandchildren, and to be paid to them respectively at twenty-one, with benefit of survivorship; and subject thereto, to the use of his nephew, Thomas Bayney, son of his sister, Frances Bayney, and his assigns, for and during the term of his natural life, subject to his qualifying himself as thereinafter mentioned, remainder to trustees to support contingent remainders, remainder to the use of the heirs male of the body of the said Thomas Bayney, lawfully to be begotten, and their heirs : provided, that in case his said nephew, Thomas Bayney, should die without leaving any issue male of his body living at his death, then and in such case he subjected the premises to the payment of 100 each to his two nieces, Frances and Priscilla Bayney, daughters of his said sister, if then living, payable at twenty-one, with benefit of survivorship; and he enabled his said trustees, after the death of his said nephew, to raise and pay the same : and for default of such [120] issue male of his said nephew Thomas Bayney, then as to all the premises subject to the payment of the said sums of 500 and 200, in manner and upon the contingency aforesaid, to the use of all and every his said five grandchildren, or such of them as should be living at the time of failure of issue male of the said Thomas Bayney, to take as tenants in common, and to their respective heirs and assigns, equally to be divided between them, share and share alike. The proviso was, that his said nephew, Thomas Bayney, should, immediately after the testator's death, be placed out apprentice to some eminent surgeon, or some other good trade, for seven years, and continue so long, or else reside in some college in Cambridge, there to reside till qualified to be a clergyman, and should be ordained; and in case he should refuse or neglect to be put out and continue such apprenticeship, or qualifying himself to be ordained a clergyman, he directed that the estate so limited as aforesaid to his nephew Thomas Bayney for life, should, from the time of such his refusal, cease, determine, and be void, as if he had been dead; and, in such case, the premises so limited to his nephew for life and his issue 630 WRIGHT V. PEARSON 1 EDEN, 121. male as aforesaid, should go over, revert, and remain to such of his said five grandchildren as should be then living, equally, and to their heirs as tenants in common. Thomas Bayney entered into the premises after the death of the testator, and suffered a recovery of them to the use of himself in fee. In 1748 he died, leaving his two sisters his heirs at law, , - The bill prayed to have 500 raised out of the estate of Thomas Rayney, and to have a conveyance of the estate itself to the plaintiffs. It charged that Thomas Bayney took only an estate for life in the premises, and could not suffer a recovery of them. [121] The Attorney-General, Mr. Sewell, Mr. Wilbraham, and Mr. Ambler, for the plaintiffs. The general intent in the present case is clear to give an estate for life to Thomas Rayney, with remainder to his issue in fee. The testator's intent, if it does not break in upon any of the...
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