Odell and others v. Crone and others [1815] UKHL 3_Dow_61

UKHL
Odell and others v. Crone and others
[1815] UKHL 3_Dow_61
REPORTS OF APPEAL CASES IN THE HOUSE OF LORDS, During the Session , 1814—15. 55 Geo . III.IRELAND.APPEAL FROM THE COURT OF CHANCERY.

No. 5

Odell and others Appellants v. Crone and others Respondents

April 19 , 1815 .CONSTRUCTION OF A WILL.Devise and bequest by testator of the residue of his estates and property of every kind and nature whatsoever, both real and personal, of which he should be seized, possessed, or entitled to at the time of his death, to his son and two daughters, and all their younger children, their heirs, executors, and assigns for ever: but nevertheless that his intentions were, that each of his three children should take for life the interest of such part as he the testator intended for the younger children of such child. Held that the fund was at the time of the testator's death to be divided into three equal parts, the interest of one of these third parts to be paid to each of testator's children, during his or her life, and then to be distributed among his or her younger children, and that the younger children took per stirpes , and not per capita , and that the younger children who came in esse after testator's death were included, and entitled to share along with those living at the time of the testator's death.John crone , at the time of making the will upon which the question arose, (September 15, 1789) had four children, Aphra and Constance, his daughters, and Robert Fennel and John, his sons. He first devised certain lands to trustees, subject to an annuity to his son John, (who died in the testator's life-time,) and other annuities to the use of his daughter Aphra, wife of William Odell, for her life, and after her decease to the use

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“I leave, devise, and bequeath the rest and residue, not hereby particularly devised and disposed of, of all my estates and property of every kind and nature whatsoever, both real and personal, of which I shall be seized, possessed, or entitled unto at the time of my death, (subject to and charged with my debts and legacies,) unto my eldest son Robert Fennel Crone,”
(who had then one younger child) “my daughter Aphra Odell, and my daughter Constance Crone,” (who had then no child,) “ and all their younger children , their heirs, executors, administrators, and assigns, for ever: but nevertheless my intentions are, that my said son Robert Fennel Crone shall have and receive the entire interest or yearly produce of such part of my said real and personal fortune, as I by this my will intend for his

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Lord Clare's decree, Dec. 1792.Order by consent, May 3, 1794, founded on the above decree.Bill filed May 28, 1806, on behalf of children born after testator's death.Decree, Feb. 14, 1811, reversing decree of 1792.By a codicil dated April 11, 1790, the testator revoked the legacy of 4000 l . to his daughter Constance, having, as he stated, made a proper provision for her in lieu thereof, on her then intended marriage with Mr. Massy. The testator died very soon after, and at the time of his death, Aphra had nine younger children, Robert one younger child, and Constance no child. Robert on the 14th May, 1791, filed a bill in the Exchequer, praying that the property which was the subject of the residuary clause might be divided into three equal portions and secured, and that the interest of one third should be paid to himself for life, the interest of another third to Aphra, and the interest of the remaining third to Constance; but this suit was never effectually prosecuted, and in August, 1791, Aphra and her husband in their own right, and as next friends of their children, filed a bill in Chancery against the proper parties, praying an account of the residue of the testator's property, and the application of the fund according to his intention. This cause came to a hearing before Lord Clare, in December 1792, who made a decree declaring “that the testator's three children, and such younger children as they or any of them had at the time of the testator's death, were entitled to the residue in equal shares, subject to the power of appointment and distribution mentioned in the will;”

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Lord Eldon , (C.) Is it the practice in Ireland, in case of bequests to parents for life, and then to their children with power of appointment and distribution to the parents amongst the children, to order the fund to be paid over to the parents? That is what is done by Lord Clare's decree.Cited for Appellant, Ellison v. Airey , 1 Ves. 111. — Horseley v. Chaloner , 2 Ves. 83.— Buffar v. Bradford , 2 Atk. 220, to show that in case of a bequest to children, the tendency of construction is in favour of a vested interest in those then living. Cited for Respondent, Douglas v. Chalmer , 2 Ves. 501, to show that the words, in case any, &c. shall die, may be construed when any &c. shall die.

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Counsel: Leach and Nolan for Appellants; Romilly and Fonblanque for Respondents.April 21, 1815.Judgment.In construing a will, state of the family at the time of execution to be attended to.In construing the words of a will the intention of the testator, and not the technical import, is to be attended to.Lord Eldon (C.) In this case it appeared that the testator was desirous to provide for three families, that of his daughter Aphra Odell, that of his son Robert Fennel Crone, and that of his daughter Constance Crone, now Massy: and in construing a will, he might state what was the situation of the testator's family at the time when it was made. His daughter Aphra had nine younger children, his son Robert one younger child, and his daughter Constance was unmarried. He first devised his lands in a place called Tomeline, and other places mentioned in the will, to trustees, to the use of his daughter Aphra Odell, for her life, subject to certain annuities, the trustees to permit her to take the rents and profits to her sole and separate use, during her natural life; all which was expressed in terms sufficiently artificial; and then to the use and behoof of all and every the younger children of his said daughter, to be divided among them as she should appoint, and in failure of such appointment to be divided among them equally, share and share

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Then came the decree of Lord Clare, the import of which he took to be that this was a residuary devise and bequest, of one share to R. F. Crone, and one to his younger child; of another share to Aphra, and nine shares to her nine younger children; and one share to Constance, who had no children at the time of the testator's death; or that the whole was to be divided into thirteen shares, of which the three children of the testator, and such of their younger children as were living at the time of the testator's death, were each to have one. Aphra and her family having by this

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With respect to the first part of the clause, it had been truly enough said, that if this were to be considered as an immediate devise, it would make them joint tenants in fee as to the real estate, and joint tenants as to the personal; and no doubt if it was meant to describe the persons who should be living at the time of his death, and this was an immediate devise to them, such would be the effect of the law. But it was difficult to believe that he, having a daughter unmarried, could really mean that those only should take who were born before his death, and that this was a devise to them in presenti . But nothing was more clear than that where there was an immediate devise, unless the testator could use such technical words as would not give way to his own exposition of his meaning, that exposition ought to be attended to in order to determine the meaning of words which, without such an exposition, would have a fixed legal sense. And then the testator went on: “But nevertheless,” &c. ( Vide ante. )Object of the Courts to comprehend as many as by fair construction of the will could fall within it.They had been driven to this: that R. F. Crone was entitled during his life to the interest of the share of only one child; and to admit the effect to be that Aphra took not only the share originally given her, but also the interest for life of the nine shares given to her children; and that as to Constance who had no children, she had only one out of thirteen shares, and that the benefit given her

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Lord Redesdale . He should not have thought it necessary to say any thing, if there had not been a contradiction between the decrees. The decree of Lord Clare was manifestly in contradiction to the will throughout; for it was clearly the intent of the testator that the younger children should take nothing during the lives of their parents. The question was, whether the subsequent decree of the present Chancellor was correct, and he thought it perfectly well founded; and that the argument against it proceeded on a misconception of the words “all their younger children;” for by their construction all their younger children did not mean all, but some. It was true that in many

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Judgment affirmed.Solicitors: Agents for Appellants, Williams and Brooks.Agents for Respondents, Cannon and Gargrave.