St. Barbe Tregonwell v. John Sydenham, Elder, and John Sydenham, Younger [1815] UKHL 3_Dow_194

UKHL
St. Barbe Tregonwell v. John Sydenham, Elder, and John Sydenham, Younger
[1815] UKHL 3_Dow_194
REPORTS OF APPEAL CASES IN THE HOUSE OF LORDS, During the Session , 1814—15. 55 Geo . III.ENGLAND.APPEAL FROM THE COURT OF EXCHEQUER.

No. 13

St. Barbe Tregonwell Appellant v. John Sydenham , Elder, and John Sydenham , Younger RespondentsMay 2 , July 27 , 1814 . July 7 , 11 , 1815 .had been no such intermediate devise, which was the opinion of the Court of Exchequer, but that the trusts of the lands to be purchased as above resulted to the heir at law.HEIR AT LAW. — RESULTING TRUST. — PERPETUITY.Wherever land, or any interest in land, which would descend to the heir at law, is devised for purposes which the law will not permit to take effect, the heir at law shall have the benefit of the interest so devised as undisposed of, whether the testator intended that he should have it or not; for there is this distinction between the case of a devisee and that of an heir at law, that the devisee takes by force of the intent of the testator, and can only take what is given him by the will; whereas the heir at law takes whatever is undisposed of, not by force of the intent, but by the rule of law. Therefore wherea. A. devised lands to his sonb. B. for life, remainder to the first and other sons of B. in tail male, remainder to the second, third, and other sons of A. successively in tail male: and in case there should be no such issue male of A.'s body, or the same should become extinct, then to trustees for a term of 60 years, to retain the rents, &c. and apply them in the purchase of lands to be conveyed to such person as should then be in possession by virtue of his will of certain other estates therein mentioned, for life, with such remainders as would continue the estates as long as possible in the testator's name and blood; and after the trusts should be executed, or the term expired, the estate was limited toc. C. for life, with remainders over: and it happened that the person so in possession at the time when the conveyance could have been made of the lands to be purchased as above was one not in existence at the time of A., the testator's, death, and the uses were considered as in the event too remote and void—It was held by the House of Lords, reversing a decree of the Court of Exchequer, that the consequence of the failure of the intermediate devise was, not that the next devisee became entitled as if there

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The Court of Exchequer appeared to consider the trusts of the term under the above circumstances as void in their creation. Lords Redesdale and Eldon seemed to consider them as only void in event.Bill filed, T, T. 1802.This was a bill by two devisees under the will after mentioned against the heir at law, and the executor of the survivor of the trustees named in the will, to have it declared that the trusts of a term of 60 years created by the will were void, as being too remote under the circumstances, and that the Plaintiffs, as next in interest, were entitled to the lands comprised in the term discharged of the trusts.Will of Humphrey Sydenham.Astington estate.The bill stated in substance that Humphrey Sydenham by his will, dated February 25, 1737, devised and bequeathed his estates in the parish of Astington, in the county of Somerset, to trustees upon certain trusts and to certain uses; and amongst others, upon the determination of certain terms therein mentioned, to the use of his son, St. Barbe Sydenham, for life; and, after the usual remainder to preserve the contingent remainders, remainder to the first and other sons of St. Barbe Sydenham in tail male; remainder to the eldest daughter of St. Barbe Sydenham, and the heirs of her body; with like remainders to the second and other daughters of St. Barbe Sydenham; remainders over, with the ultimate remainder in fee to the testator's right heirs.

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Limitations of the Dulverton estate in case of failure of issue male of testator's body. first part .The testator then devised his estates in the parishes of Dulverton and Brushford, in the said county, to the same trustees, to the use of several termors and persons who had estates for life given them by the will, and amongst others to the said St. Barbe Sydenham for life, with remainder to his first and other sons successively in tail male, remainder to the second and other sons of the testator in tail male; and in case there should be no such issue male of the testator's body, or the same should become extinct, then as to that part of these estates called Coombe, the Clawes, Andrews Bill, &c. to the use of the testator's brother, Floyer Sydenham, for life, remainder to his first and other sons in tail male; and, after several other remainders for life and in tail, remainder to the Plaintiff, John Sydenham the elder, for life, remainder to his first and other sons in tail male, with the ultimate remainder in fee to the right heirs of the testator.second part .Term and Trusts.
“And as to all the rest of his manors of Dulverton and Brushford Sydenham, and all other his estates in the parishes of Dulverton and Brushford, to retain the same in their hands and custody, for and during the term of 60 years; and during the said term to receive the rents and profits thereof; and to grant leases for one, two, or three lives, until they should have received thereby the sum of 17,500 l ., which his will was they should apply to the uses following, viz.: when they should have received 2,500 l ., to lay out the same, together with such interest as they should have made therefrom, or from any part thereof, in some real estate in some or other of the parishes and counties

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Failure of issue male of testator.—St. Barbe Tregonwell, not in existence at death of testator, tenant in tail of Astington estate.Prayer of the bill.The bill further stated that Humphrey Sydenham, the testator, died in 1757, without having altered his will, leaving only one son, the said St. Barbe Sydenham, and two daughters; that St. Barbe Sydenham entered on the estates so limited to him for life, and had two daughters, Ellery and Katharine, but no

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Decree, May 15, 1814.To this bill St. Barbe Tregonwell, the heir at law, then an infant, answered by his father and guardian, submitting his interests to the protection of the Court. After issue joined, and proof by witnesses for the Plaintiffs of the material allegations in the bill, the cause came on to be heard: and on May 15, 1807, the Court “declared that the trusts of the 60 years' term were void, and that the Defendant Lucas was a trustee thereof for the benefit of the Plaintiffs according to their respective interests:” and decreed “that the said Lucas should convey and assign the estate and premises comprised in the 60 years' term to the Plaintiffs, or as they should appoint, for the remainder of the said term, to attend the inheritance of the said estate and premises, &c.”From this decree the Defendant, St. Barbe Tregonwell, the heir at law, appealed.May 2, 1814.Humberston v. Humberston , 2 Vern. 737.—Pre. Ch. 455.—Gibb. Eq. R. 128.— Grosvenor v. Hallam , Amb. 642.For the Appellant it was contended, 1st. That the trusts of the term might be executed by applying the doctrine in Humberston v. Humberston , 1 P. Wms.

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Vid. Fearne. 6th Ed. (n.)

For the Respondents it was argued, with reference to the first point, that the person who was to take a vested interest must come into esse within a life or lives in being, and 21 years and some months after. Here he could not be ascertained till failure of issue male of the body of the testator, which might not happen for two centuries after. The case of Humberston v. Humberston had no application whatever where the object of the testator was to render the property unalienable as long as by the rules of law he could; and the Court, to effectuate the intention as far as possible, executed the will cypres . But here the Court could not execute. The testator had left it undefined who should take. There will be some one in existence to take the interest, he says; but whether you find him a month after my death, or a century after, is uncertain. The longest period within which an executory interest must vest is for a life or lives in being, and 21 years and some months, allowing for the period of gestation. Duke of Norfolk's Case.— Lamb v. Archer .— Phipps v. Kelynge , &c. cited by Fearne, 6th Ed. 435, 468, 470, 532, 616. so that if the devise may transgress the limits

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Then as to the second question, which was chiefly relied on below, the distinction was well defined in the cases. If it be a devise of a certain portion, giving over another, and that other cannot take effect, it cannot go to the devisee, because the devise to him is so far limited, and it results to the heir at law; but if it be a devise burthened with a charge which cannot be executed, the charge sinks for the benefit of

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In reply it was insisted that the principle of the

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Counsel: Romilly and Leach for Appellant; Hart and Roupell for Respondents.July 27, 1814.Lord Eldon (C.) If I were under the necessity of giving a decided opinion upon this cause now, I should be disposed to advise your Lordships to reverse this decree of the Court of Exchequer; but though I think I should be justified in that, yet, considering the great authority of the Court from which the cause came, and that we have had no opportunity of ascertaining with accuracy the grounds upon which its judgment proceeded, I think it my duty to advise your Lordships to allow this cause to stand over.Lord Redesdale . I concur in that, and the more readily, because the cases cited in support of the decree have not satisfied my mind; and the result of the whole is an impression different from that which was produced on the Court below. But it is due particularly to the very able Judge at the head of that Court, to consider well the nature of the question,

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July 7, 1815.The trusts of the term not void, but only the conveyance of the lands to be purchased with the trust fund are, in certain events, such as the law will not permit to take effect.The subsequent devisees expressly excluded till the purposes of the term should be answered, or the term determined.Lord Redesdale (after stating the case).—The effect of this decree it to put the term of 60 years entirely out of the will, as if it had never been there, and to give up the lands to the next tenant for life, as if he had been the immediate devisee. I confess my mind does not in that respect accord with the decree of the Court of Exchequer; it appears to me impossible to hold with the Barons, that the trusts are void as to the term of 60 years; I do not apprehend that the trusts are altogether void, but only that the conveyances of the lands to be purchased are in certain events what the law will not permit to take effect, and so far only the trusts are void; but I do not see the reason why the trusts, as to the raising of the 17,500 l . and 2,500 l . should be void. The raising of these sums, and the application of them in the purchase of lands, were perfectly legal, and the only thing to be quarrelled with is, his having directed the lands when purchased to be conveyed to such uses. These are uses which, in certain events, the law would not perfect. The defect is in the disposition of the lands when purchased, and not in raising the money, and applying it in the purchase of lands when raised, or in the limitations made of the purchased lands in all events. But supposing the trusts to be

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Where that is devised which would otherwise descend to the heir, whatever is not given to some devisee, and what the devisee cannot take, goes to the heir at law.I take it to be perfectly clear that, where that is devised by will which would otherwise descend to the heir, whatever is not given to some devisee goes to the heir at law, and that what it is impossible for the devisee to take belongs to the heir; and the question always is, where a purpose pointed out by the testator fails, whether the interest is expressly, or by necessary implication, given to some devisee; if not, the heir must take. Now in this case, there are no words by which the next devisees can take, till the 20,000 l . have been raised. It strikes me then, in that view of the case, that we cannot affirm this decree consistently with the law as decided in other cases, that where the testator has not pointed out another to whom the benefit is to go, the heir at law must have it.The conveyances, &c. perfectly legal as applicable to certain persons.But I do not see any ground upon which it can be maintained, that the trusts of the term were originally void. They are legal as far as the raising of this sum of 20,000 l . The laying out the money, when raised in the purchase of lands, is a perfectly legal trust. The directions for the conveyance of the lands so purchased are legal, as applicable to certain

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The illegality commences where he limits for life to persons unborn at the time of his death.The heir at law takes as far as he is not disinherited; and he is not disinherited in favour of those devisees, &c.Where money is directed to be turned into land, or land into money, they shall be considered as that species of property into which they are directed to be turned. 1 Bro. Ch. Ca. 497, 499. And failing the devise, the heir must take.The remainder to his right showed his intention that, failing the devise, the heir should take.Cases examined.Amb. 487.Amb. 643.Case of the Foundling Hospital, 1 Ves. 108.Roper v. Ratcliffe , 9 Mod 171.Now the present case is to be considered in two ways; first, the right of the heir to the land devised, so far as he is not disinherited. But he is not disinherited in favour of those, who, according to the decision of the Court of Exchequer would be entitled; for they cannot take, because the interest is not given them until the 20,000 l . be raised: the consequence necessarily is that, if there is a failure as to the whole of the devisees, the heir must take till the 20,000 l . is raised; or if that cannot be raised within 60 years, then he must take the beneficial interest for the whole of the 60 years' term. The next consideration is, what is the effect of the disposition of the lands when purchased with the money raised, the manner of settlement not being what the law will permit to take effect. It has been established in many cases that, where land is directed to be turned into money, or money is directed to be laid out in land, both shall be considered as that species of property into which they are directed to be converted. This was distinctly stated by Sewell, M. R. in Fletcher v. Ashburner , and accordingly we find, in the several cases, that to be the clear and uniform decision. Then considering the 20,000 l . as land, the disposition not being capable of being carried into effect, who is to take? the heir at law must take. If the testator had

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July 11, 1815.It is a general rule that the heir at law takes whatever interest in land is not effectually disposed of, and pro tanto he is not disinherited.An heir at law can only be disinherited by express words or necessary implication.Where a devise is made subject to be reduced to a certain extent on the happening of a given event, the happening of the event is the condition or ground of the reduction, and if the event never happens, the ground of reduction is gone and the devise remains entire and absolute.Cases examined.Case of the Foundling Hospital, 1 Ves. 108. 110.The devisee takes only what is intended to be given him. The heir takes what is undisposed of whether it is intended for him or not, as he takes not by force of the intent, but by the rule of law.Lord Eldon , (C.) The way in which I consider the case, is this: Where land, or interest in land, such as would descend to the heir at law, is undisposed of by the will, the heir at law shall have

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Amb. 643. vid . also Wright v. Row , (n). 1 Bro. Ch. Ca. 61.So in the case of Grosvenor , or Gravenor v. Hallam , also mentioned at the bar, where one Goldsbury by his will gave a messuage in Ipswich to his executors, subject to a charge of 10 l . out of the same for ever, to certain charities, the estate to be sold, and after payment of debts residue to some persons named, the question was, what was to become of the 10 l .? Lord Camden said that the land was given to the devisees, subject to the payment of 10 l . a-year, that the 10 l . was severed from the devise, and being void as given to a charity, it went to the heir at law, as not effectually disposed of. There was no declaration of intention, express or implied, as to its going in a way permitted by law, and not being effectually disposed of ex consequentia it went to the heir at law.2P. Wms. 361.—3 Bro. P. Ca. 412.Ca. Temp. Talbot 44.—1 Atk. 597.3P. Wms. 251.To disinherit an heir at law, there ought to be a clear intention that the property should go in another direction.The case of Carrick v. Errington was decided on the same principle. Edward Errington there, by lease and release, settled lands to himself for life, remainder to his first and other sons successively in tail male, remainder to Thomas Errington, a Papist, for life; remainder to trustees during the Papist's life, to preserve contingent remainders; remainder to the Papist's first and other sons in tail male; remainder to William Errington, a Protestant. The remainders were void as to the Papist, but the effect was held to be, not that the subsequent remainders were accelerated, but that the rents and profits belonged to the heir during the life of the Papist. Upon the same ground in the case of Hopkins v. Hopkins , where estates were limited by will to certain persons, on their attaining the age of 21, with an allowance for maintenance in the mean time, out

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Grounds of decision in those charity cases where, though the devises to the charities were void, the heir did not take—either that the heir was completely disinherited, or that his claim was barred by express words, or necessary implication.Amb. 487.As to the charity cases where the gifts rendered void by the statute did not go to the heir, they all seem to have been decided on one or other of these grounds, that the heir at law was completely disinherited, or that his claim was barred under an intention of the testator, express or clearly implied.Vid . Cruse v. Barley , 3P. Wms. 20.

l Bro. Ch. Ca. 61. (n.)

The case of Jackson v. Hurlock appears to have been decided on the first of these principles. This was a devise of the whole estate, subject to the payment of such sums not exceeding 10,000 l . as the testator should appoint, not doubting the devisee's honour and integrity in the performance of the will. Several sums, amounting to 6000 l ., were appointed to

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Now see what this case is: and here I must distinguish between this and a case lately decided in the Court of Chancery, where a term was created for raising portions, and no portions were subsequently mentioned. It was there contended that the heir at law was entitled to the beneficial interest as undisposed of. But the Court, looking at the intention as collected from the whole of the will, was of opinion that, as the testator had not mentioned any portions, he had merely stated what he proposed in case he had chosen to express it: but as he had not mentioned any portions, the will was so framed that that part could have no application; and it was decided

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Difficult to say that the trusts were in all events too remote.There could be no doubt but that in this case the term was well created. It was admitted to be so in the decree which directed that it should be assigned to attend the inheritance: and here I must intimate that though these trusts have been considered as too remote, it is difficult to say that they were so in all events; but as the case had not happened in which they could be carried into effect, and as the money was to be raised out of land, and the devisee could not take it because it was not given to him, it must go to the real representative. It appears to me then that the question is narrowed to this:—suppose the trusts were too remote, was it the intention of the testator that in such circumstances the devisee should take the beneficial interest in the term? A question which must be considered with reference to the fact, that there is an express direction to the trustees to

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The judgment was in these terms:—

July 11, 1815. Decree of the Court of Exchequer reversed.
“Ordered and adjudged that the decree complained of be reversed: and it is declared and adjudged that, on the failure of the issue male of the body of the testator Humphry Sydenham, the manors of Dulverton and Brushford Sydenham, and all

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Solicitors: Agent for Appellant, Sandys, Horton, and Roarke.Agent for Respondents, Parry.