Wright v Wilkin
| Jurisdiction | England & Wales |
| Judgment Date | 27 November 1860 |
| Date | 27 November 1860 |
| Court | Court of the Queen's Bench |
English Reports Citation: 121 E.R. 1060
IN THE COURT OF QUEEN'S BENCH, AND THE COURT OF EXCHEQUER CHAMBER
Affirmed in Exchequer Chamber, 2 B. & S. 259; 31 L. J. Q. B. 196; 10 W. R. 403. See Macdonaled v. Irvine, 1877-78, 8 Ch. D. 108. Referred to, In re Williams, [1897] 2 Ch. 19.
1060 WRIGHT V. WILK1N 8 B. & 8.1 [232] wright against wilkin. [Tuesday, November 27th], [I860].-Devise. Condition. Trust estate. Statute of Mortmain.-A testatrix by her will, after giving several legacies, some of which were legal and others were void as being contrary to the Mortmain Act, 9 G. 2, c. 36, proceeded as follows: " I give, devise and bequeath to T. M. W. all my real estates, both freehold and copyhold, and all the residue of my personal estate and effects, to hold to him the said T. M. W., his heirs, executors, administrators and assigns, for ever, upon this express condition, that if my personal estate should be insufficient for the purpose^ he or they do and shall, within twelve months after my decease, pay and discharge all and every the legacies hereinbefore bequeathed. And I feel confident that he will comply with my wish, it being my particular desire that all the above legacies shall be paid. And I do hereby charge and make chargeable all my said real and personal estate, with the payment of the aforesaid legacies and bequests." The testatrix nominated and appointed W. S. and A. C. executors and trustees of her will; and the will contained the ordinary clauses for the protection of trustees. There were codicils of subsequent dates which did not varv the disposition in the will. The personal estate was insufficient for the payment of the legacies, and T. M. W. did not, within twelve months after the decease of the testatrix, pay any of them. Held, by this Court and affirmed by the Exchequer Chamber, that the words " upon express condition " did not create a condition for breach of which the heir might enter; but created a trust which the defendant, taking the legal estate, would in equity be bound to perform. {Affirmed in Exchequer Chamber, 2 B. & S. 259 ; 31 L. J. Q. B. 196 ; 10 W. R. 403. See Macdmald v. Irvine, 1877-78, 8 Ch. D. 108. Referred to, In re Williams, [1897] 2 Ch. 19.] This was an action of ejectment for the recovery of a farm and divers lands and dwelling houses : being the freehold and copyhold hereditaments of which one Mary Mann died seised. On the trial, before Cockburn C.J., at the Spring Assizes for the county of Norfolk, in 1860, the heirship of the plaintiff to Mary Mann, as to 17 acres (part of the land mentioned in the writ of ejectment) was admitted by the defendant, and, as to the residue of the land, the question of pedigree was reserved for the decision of the learned Judge in the event of the plaintiff having a verdict. The defendant relied on the due execution by Mary [233] Mann of a will and codicils thereto. The will bore date 15th May, 1854, and was as follows : "First I nominate and appoint W. Seppings and A. Carber, both of King's Lynn, gentlemen, executors and trustees of this my will, and give to each of them, the said W. Seppings and A. Carter, the sum of 1001. for the trouble they may have in the execution of this rny will over and above their necessary costs, charges and expences. And I direct that all my just debts, funeral and testamentary expences shall be fully paid and satisfied, as soon as conveniently can be after my decease, out of my personal estate and effects. And it is my urgent request, and I hereby desire, to pe buried in the chapel of Tilney Saint Lawrence, in the county of Norfolk, in which parish my dear deceased parents and relatives are buried. And I give and bequeath unto my two servants, Jane Burton and Sarah Burton, all my household furniture of every description (save and except as hereinafter mentioned), for their use absolutely, to be divided between them ; and I hereby request that the said J. Burton and S. Burton shall reside in my dwelling-house for three months next after my decease free of every expense; and that my executors will, during that time, pay for their maintenance and support and all rates and taxes and other outgoings on account of my said dwelling-house out of my personal estate. And I give and bequeath all my linen and wearing apparel of every description uuto M. Remington, of King's Lynn aforesaid, spinster. And I give unto the Rev. W. Coulcher my watch, plate and trinkets. And I give and bequeath unto the said W. Seppings an engraving, framed and glazed, of ' The Deluge.' And I give and bequeath unto my young friend F. A. Jarvis two engravings, framed g !34] and glazed, one being ' Belshazzar's Feast' and the other ' The Fall of Babylon,' nd I give and bequeath unto M. Hemington the sum of 2001. And I give and bequeath unto my servant, the said J. Burton, the sum of 5001., and to my other Sa&S. 235 WRIGHT V. WILKIN 1061 servant, the said S. Burton, the sum of 2001. And I give to my said executors the sum of 101., to be paid to and divided between the four poor women who shall at my decease be living in the South Lynn Almsbouses, called Valinger's Almshouses. And I give and bequeath to my friend Mr. L. W. Jarvis the sum of 4001., aud to his son, L. W. Jarvis, the like sum of 4001. I give and bequeath to the treasurer at the time being of the Lynn and West Norfolk Hospital the sum of 2001., to be applied towards carrying on the charitable designs of the said Institution. And I give and bequeath unto the vicar aud chapelwardens of Tilney St. Lawrence aforesaid the sum of 501., to be distributed by them amongst the poor belonging to that parish as the said vicar and chapelwardens shall think proper; and I direct my said executors to pay and distribute amongst such of the poor as they may consider objects of charity, living in Alt Saint's Street in South Lynn at the time of my decease, the sum of 501.:-and which two sums of 501., I direct shall be paid withiu three months Rafter my decease. And I give and bequeath unto the said vicar and chapelwardens of Tilney St. Lawrence for the time being aforesaid the further sura of 8001., which I direct them to invest in some or one of the public stocks or funds of Great Britain, and to apply the dividends and annual produce thereof towards the keeping up and repairing of the said chapel oi Tilney St. Lawrence aforesaid for ever. And I give and bequeath unto the Rev. Wm. Currie, of Tilney aforesaid, [235] the sum of 191. 19s. And I give, devise and bequeath unto Thomas Martin VVilkin, of Furnival's Inn, in the city of London, gentleman, all my real estates, both freehold and copyhold, in Tilney St. Lawrence, Tilney All Saints, and elsewhere in Great Britain, and all the residue of my personal estate and effects, to hold to him the said T. M. Wilkin, his heirs, executors, administrators and assigns, for ever, upon this express condition, that if my personal estate should be insufficient for the purpose, that he or they do and shall, within twelve months after my decease, pay and discharge all and every the legacies hereinbefore bequeathed. And I feel confident that he will comply with my wish, it being ray particular desire that all the above legacies shall be paid. And I do hereby charge and make chargeable all my said real and personal estate with the payment of the aforesaid several legacies and bequests. Aud all estates vested in me as trustee or mortgagee I give and devise unto and to the use of the said T. M. Wilkin, his heirs, executors, administrators and assigns, for all my estate and interest therein. And I declare it to be my will that ray said trustees, or the survivor of them, or the executors or administrators of such survivor, shall be answerable and accountable for such money only : as they respectively shall actually receive by virtue of this my will; and that one of them shall not be answerable or accountable for the other of them, but each for his own acts only : and also that it shall and may be lawful for them, or either of them, by and out of the moneys which shall come to their hands, to retain to and reimburse themselves respectively all such reasonable and necessary costs and charges which they or either of them shall or may sustain, expend, be at, or be put into, in or about the exe-[236] cution of this my will. And, hereby revoking all former wills by me made, 1 do declare this writing to be and contain my last will and testament." The first codicil bore date 1st November, 1854, and was as follows: "Whereas I, Mary Mann, of South Lynn, All Saints, in the borough of King's Lynn, in the county of Norfolk, spinster, having made and duly executed my will, bearing date the 15th day of May, 1824: now I declare this present writing to be a codicil to my said will, aud I direct the same to be annexed thereto and taken as part thereof. And whereas I hare by my said will given and bequeathed to L. W. Jarvis, the son of the said L. W, Jarvis, the sum of 4001. : now also I revoke the said legacy so given to the said L. W, Jarvis. And whereas I have by my said will given and bequeathed unto my servant, Jane Burton, the sum of 5001., and to my other servant, Sarah Burton, the sum of 2001.: now I hereby ratify and confirm the said several legacies; and in addition thereto I give and bequeath to my said servant, the said J. Burton, the further sum of 5001., and to my said servant, S. Burton, the further sum of 3001. And I ratify and confirm my said will in every respect, except where the same is hereby revoked and altered as aforesaid." The second codicil was as follows : " Whereas I, Mary Mann, of South Lynn, All Saints, in the borough of King's Lynn, in the county of Norfolk, spinster, having duly made and executed my will, bearing date the 15th day of May, 1854; and whereas, I also duly made and executed a codicil to my said will bearing date the 1st of 1062 WRIGHT V. WILKIN 2 B, & S. 537. November, 1854 : now, I declare this present writing to be a second...
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