Updated 11 Sep 2001 |
WIRKSWORTH Parish Records 1600-1900 |
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The Brassington Hall Estate |
The Report of a Cause "Brassington Hall Estate"
[This report was originally stapled to page 079c of Ince's "Pedigrees" and is now placed on page 079a of that work.] |
FOX v CHARLTON, CHARLTON v HALL, HALL v FOX The questions raised in these suits were, whether Wm Charlton had by his Will exercised the power given him by the undermentioned declaration of trust accompanying the following deed of feoffment. Also, whether certain parties taking benefits under both the will and the trust-deed were put to their election. By an indenture of feoffment dated the 25th April 1833, and made between Wm Charlton, of Brassington, in the county of Derby, since deceased, on the one part, and Mary Ann Charlton Hall, then Mary Ann Charlton Fearn, spinster, of the other part, the said Wm Charlton gave,granted, bargained, sold, aliened, enfeoffed and confirmed unto his daughter the said Mary Ann Charlton Fearn, her heirs and assigns, all that capital messuage, called Brassington-hall, situate at Brassington aforesaid, with the outbuildings, gardens, orchards and appurtenances, and also all those pieces of land therein described, containing sixty-one acres or thereabouts, and also all that piece of land situate at Carsington, in the county of Derby, called Carson-hill, and all other messuages, closes, lands, tenements and hereditaments of him the said William Charlton, situate, standing, lying and being at Brassington and Carsington aforesaid, or elsewhere in the county of Derby. Seisin was delivered of these hereditaments, and the following memorandum was indorsed on the indenture: "Memorandum - That on the day and year within written, quiet and peaceable possession and seisin of the within granted, and enfeoffed hereditaments was given and delivered by the within- named Wm Charlton to the within-named Mary Ann Charlton Fearn, to hold to her, her heirs and assigns, according to the tenor of the within deed, in the presence of G F Gregory." By a memorandum of agreement made on the same day, the 25th April 1833, between the said Mary Ann Charlton Fearn of the one part, and the said William Charlton of the other part, and after reciting the above indenture, it was witnessed as follows: "Now therefore the said Mary Ann Charlton Fearn, in consideration of the natural love and affection which she hath and beareth to and for her brothers and sister William Charlton Fearn, Alfred Charlton and Georgiana Charlton, and of the said messuages, lands, hereditaments and premises having been, or intended to be, conveyed and assured to her as aforesaid, doth hereby for herself, her heirs, executors and administrators, promise and agree to and with the said William Charlton, his heirs, executors and administrators, that she the said Mary Ann Charlton Fearn, her heirs and assigns, shall and will stand seised and possessed of the said messuage, lands, hereditaments and premises, and every part thereof, upon trust for such one or more of them, the said Mary Ann Charlton, William Charlton Fearn, Alfred Charlton and Georgiana Charlton, and in such parts, shares and proportions, and charged and chargeable in such manner and form as the said William Charlton, by any deed or deeds, instrument or instruments in writing, with or without power of revocation, or by his last will and testament in writing, to be by him duly executed and attested, shall direct, limit, or appoint, and in default of such direction, limitation, or appointment, and as to such part or parts of the said messuage, lands, hereditaments and premises, whereof no such direction limitation, or appointment as aforesaid shall have been made, upon trust for them the said Mary Ann Charlton Fearn, William Charlton Fearn, Alfred Charlton and Georgiana Charlton, and their respective heirs and assigns, as tenants in common and not as joint tenants." The said William Charlton, by his will, dated 9th March 1852, gave and devised as follows: "I give and devise all and singular my real estate, situate, standing, lying and being at Brassington aforesaid, unto John Fox, of Ashbourne, in the county of Derby, gentleman, and my son Alfred Charlton, their heirs and assigns, upon trust that they, the said John Fox and Alfred Charlton, their heirs and assigns, do and shall, by and out of the rents, issues and profits of my said real estate, levy and raise the sum of £300 by yearly instalments of £100 each, and when so levied and raised, upon trust to put and place the same out at interest on Government real or other good security or securities, and call the same in and replace the same out from time to time on such like security or securities, and pay the dividends and interest thereof unto my daughter Mary Ann Hall, or permit and suffer her to receive and take the same for and during the term of her natural life to and for her own sole, separate and peculiar use and benefit, and not to be subject or liable to the debts, control, or engagements of her present or any future husband she may at any time hereafter happen to marry, and her receipt alone, notwithstanding her present or any future coverture into which she may enter, shall be a good and sufficient release and discharge for the same from time to time; and from and immediately after the decease of my said daughter Mary Ann Hall, upon trust that they my said trustees, or the survivor of them, his executors, administrators and assigns, do and shall call in the said trust money, or sum of £300 and pay and apply the same unto such one or more of the child or children of her my said daughter in such parts and proportions and in such a manner as my said daughter notwithstanding her present or any future coverture into which she shall enter, and whether she shall be covert or sole, by any deed or deeds, instrument or instruments in writing, or by her last will and testament to be by her duly executed and attested, shall direct, limit, or appoint, give or bequeath the same; and for want of such direction, limitation, or appointment, gift or bequest, and as to such part or parts of the said trust- money whereof no such direction, limitation, or appointment, gift or bequest, shall be effectually made as aforesaid, upon trust to pay and apply the same unto and among all and every of the child and children of my said daughter Mary Ann Hall, now and hereafter to be born, and if more than one, equally share and share alike. Provided, nevertheless, that in case any one or more of the children of my said daughter Mary Ann Hall, now and hereafter to be born, shall happen to die under the age of twenty- one years, without leaving lawful issue them surviving, upon trust to pay the share or shares, as well original as accruing, of him, her, so dying, unto the survivor or survivors of such children, if more than one, equally, share and share alike, and to their several and respective executors, executors, administrators and assigns. And in case my said daughter Mary Ann Hall, shall happen to die without leaving any child or children her surviving, or leaving any child or children, and all of them shall happen to die under the sage of twenty- one years without leaving lawful issue them surviving, then upon trust to pay the said trust-moneys unto my son Alfred, his executors, administrators, and assigns." The testator also gave and devised all his messuages, tenements and real estates, situate and being in Manchester, subject to the annual payment charged thereon, unto his son William Charlton Fearn, for his life, and after his decease unto his son Alfred Charlton absolutely; he also gave, devised and bequeathed all his messuages, farms, lands, tenements and hereditaments at Brassington aforesaid, after the said £300 should be raised as thereinbefore directed, and all his real estate at Bradbourne, and also all his personal estate, unto his said son Alfred, for and during the term of his natural life, subject nevertheless to the payment of the testators debts, funeral expenses, and the charges of proving his will; and after the decease of the said Alfred Charlton, he devised and bequeathed the last-mentioned real estates, and also all the rest, residue and remainder of his personal estate, unto such one or more of the child and children of the said Alfred Charlton, who should live to attain the age of twenty-one years or more, and in such parts, shares and proportions as the said Alfred Charlton should by his will direct, limit, or appoint; and in default thereof he gave and devised the last- mentioned real estates unto and among all and every of the child and children of the said Alfred Charlton who should live to attain the age of twenty-one years, or marry, equally, share and share alike, and their several and respective heirs and assigns for ever, as tenants in common and not as joint tenants; but in case the said Alfred Charlton should happen to die without leaving lawful issue him surviving, then and in such case he gave and devised and bequeathed the last-mentioned real and personal estates unto Georgiana Hall, a daughter of his said daughter Mary Ann Hall, her heirs, executors, administrators and assigns, to and for her own absolute use and benefit; and in case his said granddaughter Georgiana Hall should die without leaving lawful issue her surviving, then he gave, devised and bequeathed the last-mentioned real and personal estates unto all and every other the child and children of his daughter Mary Ann Hall equally, share and share alike, and to their several and respective heirs, executors, administrators and assigns, as tenants in common and not as joint tenants; and if there should happen to be no such child or children, then the testator gave, devised and bequeathed the last-mentioned real and personal estates unto and to the use of his own right heirs for ever; and the testator thereby declared it to be his will and mind, and directed that if his son Alfred should live with, cohabit or intermarry with Mary Ann, Watson, now Mary Ann Charlton, one of the above named defendants or if he should happen to become bankrupt, or is insolvent, or at any time or times sell, dispose of, or mortgage, or in any wise part with his estate or interest in the said real estates, or any part or parts thereof or anticipate any such sale assignment, or mortgage, then and in any of such case or cases it was the testator's will and mind, and he did thereby direct, that the gift and devise thereinbefore contained to his son Alfred should be void and cease; and the testator appointed the defendant, John Fox and Alfred Charlton executors to his will. The testator made a codicil to his will, dated the 21st Feb 1854, and thereby, after reciting the aforesaid direction contained in his will, to raise the sum of £300 and to apply the same for the benefit of Mary Ann Hall and her children as aforesaid, he revoked that bequest, and in lieu therefore directed his trustees to pay, out of the rents and profits of his real estate, situate at Brassington aforesaid, the annual sum of £40 to his daughter Mary Ann Hall for the term of her natural life, for her separate use; and, after her decease, to pay and apply the same unto and equally between his two granddaughters Georgiana Hall and Elizabeth Hall, and the survivor of them, share and share alike, for and during the term of their natural lives, as tenants in common and not as joint tenants; and, after reciting that he had, by his will, directed that, if his son Alfred should live with, cohabit, or intermarry with the said Mary Ann Watson, or if he should become bankrupt or insolvent, or at any time or times sell, assign, dispose of, or mortgage his estate or interest in the real estate therein mentioned, or anticipate the same, the gift or devise thereinbefore contained should be void, the testator, by this codicil, revoked so much of the last-mentioned proviso as was thereinafter mentioned, and thereby authorised, directed, or empowered his son Alfred to sell and dispose of so much and such part or parts of his real estate as should be sufficient to pay off and discharge all mortgage or mortgages or other incumbrances charged by the testator or any part of his real estates, during his lifetime, but not further or otherwise. The testator died on 20th April 1854 without having exercised the power of appointment reserved or given him by the aforesaid memorandum of the 25th April 1833, except so far as it might be exercised by the above-mentioned will and codicil. Alfred Charlton intermarried with the defendant Mary Ann Charlton, on the 5th May 1856, and died, intestate, in Jan 1857, leaving the plaintiff his only child and heir-at-law; letters of administration being granted to his widow. On the 13th Dec 1856 the said John Fox instituted a suit for the administration of the estate of the testator, which came on to be heard on the 12th Jan 1858, when certain inquiries were directed, amongst others, whether the indenture and memorandum hereinbefore stated were executed, and by whom and under what circumstances, and whether they were binding at the time of the death of the testator, and what estates were comprised in such deeds; and in May 1860 it was certified, among other things, that these deeds were binding at the death of the testator. Wm Charlton Fearn accepted the devise to him contained in the above mentioned will, and received the rents and profits thereof. Georgiana Charlton having died intestate and unmarried, and leaving no heir or next of kin, the Crown claimed to be entitled to her interest in the premises. Questions having arisen as to whether the above- mentioned will and codicil were or was, so far as regarded the gifts therein contained of the annuity to Mary Ann Hall, and of a life-interest to Alfred Charlton, or either of them, an execution, so far as such gifts extended, of the power contained in the declaration of trust of the 25th April, 1833, with regard to the hereditaments therein comprised; William Charlton Fearn, although he had received the rents and profits as aforesaid: and Mary Ann Hall, although she had received the annuity payable under the above- stated codicil, insisted upon their title respectively under the above declaration of trust, in opposition to the dispositions contained in the will in favour of the children of Alfred Charlton. The plaintiff, on the other hand, charged that the defendants were not entitled to take under the will and codicil, and also adversely to the dispositions contained in the will; but that they must, under the circumstances, be held to have elected to take under the will, and that effect ought to be given as against them to the dispositions contained in the will, and that with respect to the hereditaments comprised in the aforesaid feoffment and memorandum; or that, if the court should be of opinion that they or either of them were entitled to make such election, and if they or either of them respectively should elect to take under the declaration of trust, the plaintiff ought to be entitled to stand in their places respectively as regarded the life-estate of William Charlton Fearn in the Manchester estate and the annuity given by the will. Baily,Q C and De Gex appeared for the plaintiff. Glasse,Q C and Welford for the defendant, Hall. Wickens for the Attorney General. Whitbread for the Attorney General of the Duchy of Lancaster. Little for the trustees. Southgate and Hobhouse for other parties. Baily, Q C, in reply. The following cases were cited:Blake v Bunbury, 1 Ves jun 523; Rancliffe v Parkyns, 6 Dow 202; Hales v Margerum,3 Ves 299. The VICE-CHANCELLOR - The most important of these questions is, whether the testator in devising the Brassington estate intended to deal with that which was the subject of the feoffment, dated in 1833, whereby he conveyed the property to Mary Ann Charlton his daughter, in fee, with livery of seisin; she by a memorandum of agreement dated the same day agreeing to hold the premises in trust for such one day or more of four persons, herself being one, and they being the children of the settlor, as he should by deed or will appoint, and in default in trust equally for their benefit. This instrument conveyed the immediate fee in possession for the benefit of the four children immediately. Notwithstanding this dealing William Charlton continued in possession of the Brassington estate till his death, which took place in April 1854, and made his will; the question being whether that will did to any and to what extent exercise the power. [Here his Honour referred to the will] It appears that at the date of the will he was the owner of some property at Brassington, which he had purchased since the date of the feoffment, and which would answer the description of "my real estate, situate, standing, lying and being at Brassington", and if that were all there was no question but that the effect would be that the will would devise his own property, and not that the subject of the power, but it was contended that he must intended to dispose of the whole, because he said, "my real estate" and his own was only worth £5 or £6 a-year, consisting of two cottages, of which the exact annual value could not be ascertained, being let with other property, and he must be considered as referring to something worth at least £100 a year, he having charged it with £300. But a pecuniary test could not be applied; it was too uncertain a one. If he had no other property, he meant to dispose of that which was the subject of the power. The rule was most satisfactorily laid down by Lord Alvanley in Hales v Margerum, 3 Ves 301, in which the leading cases were referred to, where he said:"Andrews v Emmot, 2 Bro. C C 297, is a leading case upon this point, and has perfectly and clearly established that, to execute a power there must be a clear reference to the subject, or something on the face of the will, or independent of it, some circumstance which shows the testator could not have made that disposition without having intended to comprehend the subject of his power." Here there is no reference to the power, but the rule thus enunciated is peculiarly applicable to the present case, and the question is, could the testator have made the disposition without having intended to embrace the subject of the power? There may be cases, no doubt, where, on the question of value, it is extremely difficult to find out the intention by inference from the will and the surrounding circumstances that might be legitimately used in evidence; but here it is clear that the testator could not have intended to confine the gift to the two cottages, but referred to that which constituted his Brassington estate, although twenty-one years before he had made the greater part the subject of a feoffment. He must therefore be held to refer to all the property which he considered himself the owner of at Brassington, including that which was the subject of the power. The result is that, so far as he made a charge in favour of Mary Ann Charlton Fearn, it is valid, and not in excess; so far as it is given to Alfred it is a good exercise; but beyond that every gift is void, because it is an attempt to give to persons not objects of the power. Subject therefore to his own life estate the Brassington estate went in equal shares to the four, Alfred, William, Mary Ann, and to the Crown, and the Duchy of Lancaster as representing Georgina. Then comes the question of election. The testator has endeavoured to dispose of property which he had no right to dispose of to William and Alfred - to William property at Manchester which he had a right to dispose of, and to Alfred in remainder in fee after the death of William. Mary Ann Hall is not put to her election, because she only takes under an appointment in exercise of a power, he having given her nothing of his own property. He makes the Bradbourne property liable for debts first payable out of his personal estate, and then out of the Bradbourne estate, and then out of the Manchester property. There is no personal estate, and therefore no account can be taken of that. Alfred died, being the sole acting executor, and Fox received nothing. Alfred sold the Bradbourne estate, and out of the proceeds paid debts and other liabilities, and £840 remains which is not accounted for, and Alfred's estate is now liable for those debts, amounting to £900, £600, and £700, being speciality debts. The speciality creditors can come upon anything. The £840 must be paid out of Alfred's interest in the Manchester, William being put to his election as between the Manchester property and the fourth share, the subject of the power. Solicitor for the plaintiff, E Atkinson, 65,Watling Street. Solicitor for the defendant, G Hodgkinson, Wirksworth; agent,W M Wilkinson,44 Lincolns-inn-fields |
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