William Maxwell Estate Legal Cases
Ellis vs Maxwell
1841: March 19, 21, 26: Rolls Court, Lord Langdale M.R.
A party, whose interest in a fund had not vested, held, under the terms
of a power in a will, entitled to maintenance, even after attaining
The Thellusson Act (39 & 40 Geo III. c. 98) does not permit
accumulation during a minority and any time to elapse between the death
of the testator and the commencement of the minority, or in favour of
any person who would not, for the time being, if of full age, be
entitled to the annual produce of the fund.
A testator directed the accumulation of the whole of his personal
estate for the benefit of his grandchildren ; and he gave to his
wife “any thing which he might not have sufficiently disposed of ”:
Held, that the accumulations of the fund, which were void under the
Thellusson Act, belonged to the widow, notwithstanding the
grandchildren took vested interests
A testator devised his freeholds to pay certain annuities, and
accumulate the surplus rents so as to become part of his personal
estate: and, subject to the charges, to the use of the first and
other sons of his son A. in tail, with remainder to his daughter B. for
life, with remainder to her first and other sons in tail, &c,; and
he directed that no person should, under the limitations, become
entitled in possession while any antecedent limitation remained in
contingency. And he gave his personal estate to the children of A. and
B., “except the eldest son,”
to be transferred to all his younger grandchildren, equally to be
divided between them as and when the sons attained twenty-one, and the
daughters attained that age or married, it being his will that each of
their several shares and interests should become vested at that age, or
the previous marriage of daughters, though such shares should not
become payable or transmissible till after the demise of both his son
and daughter ; but, in the meantime, he empowered his trustees, though
the parents of his grandchildren should be living, to apply the
interest of each grandchild’s “presumptive share, even including an eldest son’s share, in their maintenance and education;”
and the surplus was to accumulate and be payable along with their
respective original shares when the same became vested and
transmissible, and the payments were to be allowed to the trustees,
though such grandchildren should not gain a vested interest. And the
testator declared, that after the death of A. and B., as well as during
their lives, his trustees should in the mean time and until the share
or shares of all his grandchildren of and in the trust funds should
become vested and assignable, transferrable, or payable, apply the
dividends of the trust funds towards the maintenance and education of
every such child and children respectively, including even the eldest.
A. and B. were still living ; A. had no children, but B. had an
eldest son and other children : Held, first, that the eldest son of B.
had not a vested interest in the personal estate ; secondly, that
the other children took vested interests, subject to be divested
partially by the birth of other children ; and, thirdly, that all
the children of B., including the eldest son, who had attained
twenty-one were entitled to have maintenance.
testator William Maxwell by his will, dated 25th of March, 1818, after
referring to the insanity of his son John Maxwell, devised his freehold
estates to his wife the defendant Jane Maxwell, and to the plaintiffs
in fee, to the intent that his wife might receive an annuity of 1,000l.
for her life out of the rents and profits if sufficient, but if not
then out of his personal estate ; and to the further intent that his
son John Maxwell might receive or have applied for his benefit, an
annuity of 1,000l., which might be increased under circumstances
in the will mentioned ; and the testator directed the residue of the
rents, so charged, to be invested and accumulated, to the end that the
same might become part of his personal estate. And, subject to the
charges, the testator directed his trustees to stand seized of his
freehold estate, to the use of the first son of the body of his son
John in tail male, with remainder to the other sons of his son John,
successively in tail male, with remainder to his daughter Ann Lyte for
life, with remainder to the use of the first son of the body of Ann
Lyte in tail male, with remainder to the other sons of the body of Ann
Lyte, successively in tail male, with remainder to the daughters
of his son John and daughter Ann as tenants in common
in tail, with other remainders over. And the testator directed,
that no person should under the limitations and trusts aforesaid become
entitled to the lands in possession, or to the rents and profits
thereof during such time as any antecedent limitations remained in
The testator then disposed of his leasehold estates ; and he gave his
personal estate to his trustees and executors desiring them to pay his
debts and certain legacies ; and he directed that after payment of his
debts and legacies, his trustees should stand possessed of his personal
estate, upon the trusts after mentioned, for the benefit of all the
sons and daughters of his son John Muwell and his daughter Ann Lyte, “save
and except a first born or eldest son, or such other son as by the
death of an elder brother might become an eldest son, and as such would
be entitled to a considerable portion of his fortune under the
limitations of his will whether such eldest son should be the son of
John Maxwell or of Ann Lyte, but the son of his said son John Maxwell
was to be preferred before the son of the testator’s
said daughter ; and to that end he directed the trustees to transfer
the trust funds unto all his younger grandchildren equally to be
divided between them, as and when being sons they should attain the age
of twenty-one years, or being daughters they should attain that age or
be previously married, it being his will, that each of their several
shares and interests should become vested at that age or the previous
miarriage of daughters, though such shares should not become payable or
transmissible until after the demise of both his son and daughter;”
and he directed, that if only one grandchild should live to attain such
vested interest, the whole fund should go to such only grandchild.
in the mean time his will was, that although the parents of his
grandchildren, or either of them should be living, it should be lawful
for the trustees to apply the interest of each grandchild’s presumptive share, even including an eldest son’s
share, or such portion thereof as in their discretion they should think
fit, in the maintenance and education of all his grandchildren, or in
aid therof ; and the surplus, if any, was to be laid out and
accumulate, and be payable and paid along with their respective
original shares when the same should become vested and transmissible,
together with all such benefits of survivorship, amongst his younger
children as after mentioned ; and such several applications and
payments by the trustees were to be allowed in their accounts, even
though such grandchildren so maintained and educated should not
afterwards live to gain a vested interest under his will. The will then
provided for giving to surviving grandchildren the benefit of the
original or accruing share of any who should die without having
acquired a vested interest. And the testator then expressed his
will to be, that from and after the decease of both his son John
Maxwell and his daughter Ann Lyte, as well as during the lives of both,
or the life of one of them, his trustees should in the mean time and
until the share or shares of all his grandchildren of and in the trust
funds should become vested and assignable, transferrable, or payable to
him, her, or them respectively, pay, apply, and dispose of the
dividends, interest, and annual proceeds of the trust funds, or any
part thereof, in and towards the maintenance and education of every
such child and children respectively, including even the eldest, in
such manner as the trustees should in their discretion think fit.
The testator afterwards directed, that if there should be
anything which he might not sufficiently have disposed of, the same
should go and belong to his wife Jane Maxwell as his residuary legatee.
At the date of the will the testator’s son John Maxwell was, and still remained, a lunatic and unmarried.
The testator died on the 8th of September, 1818.
The daughter Ann Lyte had no child born at the time of the testator’s
death. She had since had four children, the eldest of whom was born on
the 29th of September, 1818, and consequently attained his age of
twenty-one years on the 29th of September, 1839. The youngest was born
on the 10th of January, 1828.
The term of twenty-one years after the testator’s death expired on the 8th of September, 1839.
The will was very inaccurately expressed, and was in some respects
contradictory ; and several questions were raised upon the construction.
Mr. Pemberton and Mr. Purvis, for the plaintiffs, who were two trustees.
for Jane Maxwell, the widow and residuary legatee, contended that the
bequest of the residuary estate amounted, in effect to a trust for
accumulation during the lives of the testator’s
son and daughter, and the survivor of them ; that it was void for the
excess above twenty-one years ; and that the widow was entitled
to the income which could not lawfully be accumulated. He further
contended that the trustees had no power to apply any part of the
income towards the maintenance of any grandchild who hud attained the
age of twenty-one years.
Mr. Kindersley, for the
defendant Henry William Maxwell Lyte, who was the eldest son of Mrs.
Lyte, and had attained his age of twenty-one years, contended, that
although he was now the eldest grandson, yet that as he might be
excluded from all benefit of the limitations of the real estate by the
birth of a son of John Maxwell, and was, during that contingency and
the life of his mother, excluded from any interest in possession in the
lands, he ought to be considered as a younger grandchild, and as having
acquired a vested interest in a share of the personal estate ; and he
claimed either to have such share now paid to him, or at least, to have
his right thereto declared ; and if he should not succeed in
establishing that claim, he contended that even as eldest grandson he
was entitled to have an allowance for his maintenance and education,
until the shares of the younger grandchildren became payable.
Mr. Tinney and Mr. Morley,
for the younger grandchildren, contended that Henry William Maxwell
Lyte. being at this time, eldest grandson, entitled in expectancy to
the freehold estate, could not, whilst he held that character, be
entitled to a share of the personal estate, though he might become so,
if, by the birth of a son of John Maxwell, his expectancy should be
further postponed ; and they submitted to the Court, whether he was
entitled to an allowance for his maintenance out of the income.
the younger grandchildren, it was further contended, that the trust for
accumulation, whether expressed or implied, was a trust during the
minorities of children, who, under the uses of the will, would, if of
full age, be entitled to the income : that such accumulation was lawful
under the statute. It was also insisted on their behalf, that
when they respectively attained the age of twenty-one years, they would
become entitled to vested interests, subject only to partial
divestment, in the event of other grandchildren coming into existence ;
but that until such grandchildren should be born, each of the present
younger grandchildren would, on attaining twenty-one years of age, be
entitled to receive the income from his or her presumptive share.
The following authorities were referred to Mills v Karris (1), Haley v Bannister (2), Shaw v Rhodes (3), O’Neill v Lucas (4), Macdonald v Bryce (5), Eyre v Marsden (6), Pride v Fooks (7), Erans v Hellier (8).
THE MASTER OF THE ROLLS, after stating the circumstances and the points argued, observed as follows:
will is very inaccurately expressed, and is in some respects
contradictory, and several questions are raised upon the construction.
there is not at present any surplus of the rents of the real estates,
and as none of the younger grandchildren have attained the age of
twenty-one years, some of the questions which arise upon this will do
not now require decision. The questions which it is necessary to
1. Whether the defendant, Henry William
Maxwell Lyte, the eldest grandson for the time being, is entitled to a
vested interest in a share of the personal estate.
2. If he
is not, whether he is, nevertheless, entitled to an allowance for his
maintenance and education, or for his maintenance, out of the income of
the personal estate, notwithstanding his having attained his age of
3. Whether the trust for accumulation is void for the time exceeding twenty-one years, after the testator’s death.
1. As to the first it appears to me, that the words “save
and except a first-born or eldest son, who, as such, will be entitled
to a considerable portion of my fortune under the limitations of this
my will,” the
eldest son answering that description is excluded from the class for
whose benefit the capital of the personal estate is given ; and this
construction is, I think, confirmed by the mode in which the testator
has taken care to provide for the maintenance of such eldest son out of
the income ; thinking it necessary, on two distinct occasions, to
include him specially as one of the grandchildren to be so maintained.
It may happen that a son of John Maxwell may be born ; such son
will, by the express words of the will, be entitled to a prior interest
in the real estate ; and, in that event, the eldest son of Mrs. Lyte
will, I conceive, upon the construction, have the rights of a younger
grandchild to a share of the personal estate ; but at present, I think,
that he is not entitled to a vested interest in the capital.
I think that the intention to be collected from the will is, that the
shares of the grandchildren should not be paid during the lives of John
Maxwell and Mrs. Lyte, or the life of the survivor of them. The
testator has distinctly contemplated the two periods of time, the time
of vesting and the time of payment ; but the will is expressed very
inaccurately as to what is to be done on each occasion, and in the mean
times. In one place he directs the shares to be paid to the
grandchildren, as and when they respectively attain the age of
twenty-one years ; in the same clause he says, that the shares are to
vest at twenty-one, but not become payable or transmissible till after
the death of both his son and daughter; and having in one place
expressed himself so as to exclude an eldest son from any share, he in
another place speaks of an eldest son’s
share. But, upon the result of the whole, I think, that according
to the terms of the will, the eldest son, though excluded from a vested
interest in the capital, is entitled to an allowance out of the income
for bis maintenance and education ; and then the question is, whether
the trustees have authority to continue this allowance after the eldest
son’s attainment of
twenty-one years of age. And whatever ambiguity there may be in
the first clause relating to maintenance, I think that, upon the
second, the trustees have such authority. The words are, “that
from and after the decease of both his son and daughter, as well as
during the lives of both, or the life of one of them, the trustees
shall, in the meantime, and until the shares of all the grandchildren
shall become vested and assignable, and transferrable or payable to
him, her, or them respectively, pay, apply, and dispose of the income
or any part thereof, in and towards the maintenance and education of
every such child or children, including even the eldest son, in such
manner as they shall think fit.”
This clause is expressed generally, without distinctly referring to the ages of the children ; the words “vested and assignable transferrable or payable”
appear to me to show, that the testator contemplated a period beyond
the time, when, according to the former clause, the shares were to
become vested, but not payable or transmissible ; and upon the
best consideration which I have been able to give to the case, I think,
that there are no words in the will which lead necessarily to the
conclusion, that the operation of this clause, which itself
contemplates a longer period, should be confined to the minorities of
the children, who are to be maintained in the event of a majority being
attained, during the lives of the son and daughter. I am
therefore of opinion, that the defendant Henry William Maxwell Lyte is
entitled to an allowance for his maintenance, notwithstanding his
having attained his age of twenty-one years.
3. With respect
to the question relating to accumulation, the words of the statute
permit accumulation for the term of twenty-one years from the death of
the testator ; or during the minorities of any person who shall be
living, or in ventre sa mere at the time of the death of the
testator ; or during the minority only of any person, who, under the
uses of the will, would for the time being, if of full age, be entitled
to the annual produce directed to be accumulated.
Maxwell admits the accumulation to be good for twenty-one years ; she
has scarcely suggested that it may not be good during the minority of
Henry William Maxwell Lyte, who was in ventre sa mere at the time of the testator’s
death ; but she insists that it can be good no longer ; whilst the
younger grandchildren insist, that they are persons who under the uses
created by the testator, will upon attaining the age of twenty one
years be entitled to the annual produce of the whole fund.
difficulty of attributing a distinct and efficient meaning to all the
words of this Act has frequently been acknowledged. If the
accumulation is permitted only during the minority of a person entitled
under the uses of the will, and no time is to be allowed, either before
the minority commences or after it has ceased, it does not seem that
any thing is added to the permission to accumulate during the minority
of a person living at the death of the testator. But taking the
words as they are, they do not appear to permit accumulation during a
minority and any time to elapse between the death of the testator and
the commencement of the minority, or in favour of any person who would
not for the time being, if of full age, be entitled to the annual
produce of the fund ; and accordingly, in the case of Longdon v. Simson, where an accumulation was intended to be made till unborn children attained twenty-one, Sir WILLIAM GRANT decreed an accumulation for twenty-one years only ; and in Haley v. Bannister, Sir JOHN LEACH
expressed his opinion to be that the statute prevents an accumulation
during the minority of an unborn child. These cases prevent me
from considering, that upon the construction of the Act the
accumulation would be lawful during the minority of any grandchild born
after the death of the testator. Moreover, upon the construction
of this will, it will have to be considered whether the younger
grandchildren attaining twenty-one will be entitled to the annual
produce of the fund, although it may be lawful for the trustees to make
them an allowance for their maintenance and education out of it after
they have attained twenty-one.
In the view which I have taken
of the case, it does not appear to me that the circumstance of the
younger children taking vested interests at twenty-one makes any
material difference. They will, as it seems to me, be vested
interests, subject to be partially devested by the births of after born
children ; but in Eyre v. Marsdcn the interests were
vested on the death of the testator, subject to be devested in a
particular event ; and yet the grandchildren were held not to be
entitled till the time of distribution appointed by the testator.
appears, therefore, to me, that the trust for accumulation after the
attainment of twenty-one years by Henry William Maxwell Lyte is void ;
that an allowance ought to be made, out of the annual produce of the
fund accumulated up to that time, for the maintenance and education of
all the grandchildren, including Henry William Maxwell Lyte ; and that
the surplus if any of such annual produce belongs to Jane Maxwell as
Some further points which arose in this case are reported on the further consideration of the case in 12 Beav. 104
Hogg vs Jones
Master of the Rolls
Chattels were bequeathed “in
the nature of an heirloom to the person who for, the time being, shall
be in actual possession and enjoyment of my freehold estates, under the
limitations of this my will” —
Held, that they did not vest absolutely in a tenant in tail whose estate was defeasible, and who never came into possession.
also, that they did vest absolutely in the person who in the events
which happened, would have been tenant in tail in possession, if his
estate had not been defeated by the execution of a disentailing deed.
To destroy the right of such person to the chattels, his exclusion from
possession of the freeholds must arise from some act or disposition of
the testator, and not from any foreign circumstance beyond the testator’s control.
William Maxwell, by his will, dated the 25th March, 1818, devised all
his real estate unto his wife, Jane Maxwell, and her brothers, Henry
Ellis and Francis Ellis, and the survivors and survivor of them, and
the heirs and assigns of the survivor, absolutely for ever, to the
several uses, upon the several trusts, and for the ends and purposes
following, that is to say, to the use and intent that the said Jane
Maxwell should have, receive, and take out of the yearly rents and
profits, an annuity of 1000l. for her life, and to the further intent that the testator’s
son, John Maxwell, should (if the commission of lunacy therein
mentioned should be superseded) have, receive, and take out of the
yearly rents and profits the like annuity of 1000l. ; but if the
said commission should not be superseded, then the testator directed
that the annuity, so set apart for his said son, should be received by
the testator’s wife
during her life, and after her decease by his trustees for the
maintenance and support of his said son, and if the fund should be more
than sufficient for that purpose, then the testator directed the
surplus to fall into his personal estate. And as to all the
residue of the yearly rents and profits, the testator directed that the
same should be invested by his said trustees, as therein mentioned, and
become a part of his personal estate. And as to all his freehold
estates, devised as aforesaid, the testator declared his will to be,
that his trustees for the time being should stand seized and possessed
thereof, in the first place, to the uses thereinbefore mentioned, and
subject thereto to the use of the first son of the body of his said son
John, in tail male, and, for default of such issue, to the use of the
second and every son and sons of his said son John, severally,
successively and in tail general, and in default of such issue male of
his said son John, to the use of, or in trust, for his daughter Anne,
the wife of Henry Francis Lyte, for her separate use for her life, with
remainder to the use of trustees to preserve, with remainder to the use
of the first son of his said daughter Anne, in tail male, with divers
remainders over. After disposing of certain leaseholds for years,
and other personal estate, the testator proceeded —
as to my plate, I give the use and enjoyment thereof to my said dear
wife during her natural life only, and, after her decease, I give the
same, in the nature of an heirloom, to the person who for the time
being shall be in the actual possession and enjoyment of my freehold
estates, under the limitations of this my will.”
And the testator appointed the said Jane Maxwell his residuary legatee.
The testator died on the 3rd December, 1818.
In 1843, F. L. Gore was appointed a trustee of his will in the place of Francis Ellis.
Henry William Maxwell Lyte was the eldest son of the testator’s said daughter Anne.
By an indenture, dated the 27th September, 1844, and purporting to be
made between the said Jane Maxwell, Henry Ellis, and F. L. Gore, of the
first part, the said Anne Lyte of the second part, the said H. W. M.
Lyte of the third part, and R. W. Wolston of the fourth part, it was
witnessed, that in order to defeat all estates tail of the said H. W.
M. Lyte, under or by virtue of the said will of William Maxwell in the
lands thereby granted, and all estates, powers, rights, and interests,
limited to take effect after the determination or in defeasance of such
estates tail, and to limit the same lands to the uses thereinafter
expressed in remainder immediately expectant on the failure or
determination of the estates tail by the same will limited to the sons
of the testator’s son John in succession and the determination of the estate for life limited in remainder thereon to the testator’s
daughter Anne, he, the said H. W. M. Lyte, with the consent of the said
Jane Maxwell, Henry Ellis, and F. L. Gore, as also of the said Anne
Lyte, in so far as they, any, or either of them, might be, or be
considered as, protectors or protector of the settlement, will, or
instrument, creating the said estates tail, and for the considerations
therein expressed, granted, bargained, sold, and disposed of unto the
said R. W. Wolston, and his heirs, all and every the hereditaments of
which the said H. W. M. Lyte was then tenant iu tail, under or by
virtue of the will of the said William Maxwell, to hold the same unto
the said R. W. Wolston, and his heirs, in remainder immediately
expectant as aforesaid, and in the meantime, subject to the uses,
estates, and interests, limited or created by the will of the said
William Maxwell to take effect prior to the estate tail of the said H.
W. M. Lyte, to dower uses commensurate with the fee in favour of H. W.
This indenture was duly enrolled, and was executed
by H. W. M. Lyte, and Anne Lyte, but not by the trustees of William
Maxwell’s will, or any of them.
In 1849, the present plaintiffs were appointed trustees of the will of William Maxwell.
The testator’s widow died in 1847, and his daughter Anne, in January, 1856.
H. W. M. Lyte died on the 3rd June 1856.
The testator’s son John died on the 29th November 1861, a lunatic, and without ever having married.
The defendant, Edward Maxwell Lyte, was the eldest son of H. W. M.
Lyte, and was the first equitable heir in tail under the entail created
by the will of William Maxwell, if such entail was not effectually
barred by the indenture of 27th September, 1844.
The testator’s will had already been the subject of litigation, which commenced as far back as 1839 ; see Ellis v, Maxwell,
3 Beav. 587 ; 12 Веav. 104. The present proceedings were by
supplemental bill, and the case was argued on motion for decree.
The effect of the indenture of 27th September, 1844, was not
discussed. This report is confined to the bequest of the
Selwyn, Q.C., and W. J. Bovill, for the plaintiffs.
Baggallay, Q.C., and Lewin,
for defendants representiug both the real and personal estate of H. W.
M. Lyte, argued that, in the events which happened, the plate became
absolutely vested in H. W. M. Lyte, the first tenant in tail ; and
Foley v. Burnett, 1 Br, С. С. 274.
Lord Scarsdale v. Curzon ,1 J. & H. 40.
for the defendant Ellis, the legal personal representative of Jane
Maxwell, the residuary legatee of the testator, argued. that the
original bequest of the plate had, in the events which had happened,
failed to take effect ; that bequest was to a person answering a
certain description, and it was a condition precedent—
that any one claiming under that bequest should be in the actual
possession and enjoyment of the freehold estates, under the limitations
of the will of William Maxwell ; H. W. M. Lyte never answered that
description ; his enjoyment of the estates was by the will postponed
till the death of John Maxwell, the lunatic, and he had died in the
lifetime of the lunatic. H. W. M. Lyte never was in possession of the
freeholds at all, and those who claimed under him, though in
possession, were not in possession under the limitations of William
Maxwell’s will :
neither was Edward M. Lyte, who was issue in tail under the
limitations, in possession or enjoyment of the freeholds. Under
these circumstances, the original bequest failed, and the plate fell
into the testator’s
residue. A gift of this kind was not in the nature of an
executory trust : it was to be construed strictly : effect must be
given to the clear expression of the testator’s intention : the fact that the case of the lunatic surviving the testator’s widow was not provided for, could not alter the construction of the bequest. He cited,
Vaughan v. Burslem, 3 Br. C. C. 101.
Lord Scarsdale v. Curzon, 1 J. & H. 40, 64, 69.
Druce, for the defendant Edward M. Lyte, contended, that he was entitled as persona designain ; the plate was bequeathed to the person who should be in possession of the freeholds under the limitations of the will— i. e.,
to the person who under the will hail the right to possession, the
person to whom by the will the freeholds were limited ; and in
determining such person, the form of the limitations in the will, not
the accidental subsequent circumstances, must be looked to : the
benefit of a bequest like the present could not be intended to pass to
a stranger, until the plate had become absolutely vested in some one
person ; until that event happened, and to determine the person in whom
it should so vest, the limitations of the will, and they only, were to
bo regarded. He cited,
Potts v. Potts, l H. L. C. 671.
Lloyd, Q.C., Osborne, Q.C., G. Lake Russell, and Jenkinson, appeared for other parties.
14 JAN 1863.
THE MASTER OF THE ROLLS
said, that there were three dusses of claimants to the chattels in
question : 1st, the representatives of H. W. M. Lyte, who
contended that the plate vested absolutely in him, as the first
tenant in tail ; 2ndly, Edward M. Lyte, who contended, that the
chattels vested in him, as the person who, on the death of John
Maxwell, would have become entitled to the possession of the freeholds,
if no disentailing deed had been executed ; and 3rdly, the
representatives of the residuary legatee of the testator, who
contended, that it was a condition precedent—that
the person taking the chattels under the original bequest should be in
actual possession of the freeholds, and under the limitations of the
will of William Maxwell ; that neither of the other claimants, or any
other person, fulfilled that condition ; and, consequently, that the
chattels fell into the testator’s residue.
There was no case which exactly governed this : Foley v. Burnell, and Vaughan v. Burslem
were not applicable. All that those cases decided was, that these
chattels would have vested absolutely, on his birth, in a son of John
Maxwell ; they did not decide that the chattels vested absolutely in
any person whose estate tail, though vested, was, nevertheless, like
that of H. W. M. Lyte, defeasible by the birth of a son of John
Maxwell. The tenant in tail, in whom the chattels vest, must be a
tenant in tail whose estate was indefeasible. Were it otherwise,
what would be the consequence? Suppose a testator were to devise
to A., his eldest son, for life, remainder to A.’s first and other sons successively in tail male, remainder to В., the testator’s second son, for life, remainder to B.’s first and other sons successively in tail male, with remainders over ; if B. had a son born, while A. had none, that son of B.’s
would be the first tenant in tail, and, according to the contention of
the representatives of H. W. M. Lyte, the chattels would vest
absolutely in him on his birth ; the estate tail of B.’s
son would, however, be defeated by the subsequent birth of a son to A.,
and thus, if the above contention were to prevail, the heir-looms would
not go with the estate. His Honour held, that the chattels did
not vest absolutely in H. W. M. Lyte, and that his representatives were
not entitled thereto.
If the deed of 27th September, 1844,
had not been executed, the defendant Edward M. Lyte would, on the death
of John Maxwell, have become entitled to the freeholds, as tenant in
tail in possession under the limitations of the will, and, as such,
would then have become absolutely entitled to the chattels. The
question was, whether the execution of the disentailing deed deprived
him of his right to the chattels?
His Honour was of opinion,
that, to satisfy the words of the bequest, an actual physical
perception of the rents of the freehold estates was not necessary, but
that a right to such perception and enjoyment, under the limitations of
the will, was sufficient to bring the legatee within the description.
The deed of 27th September, 1844, had no operation on the chattels, and as was forcibly argued by Mr. Druce,
they must go as if that deed had not been executed. The failure
of possession and enjoyment of the freeholds by Edward M. Lyte was not
owing to the defeasance of his estate by the coming into existence
of a person entitled, under the limitations of the will, to an estate
prior to his, but was owing to a foreign circumstance, over which the
testator had not, and could not have, any control. Suppose that
the whole of the freeholds, devised by the will of William Maxwell, had
consisted of a messuage on the east coast of England, and that such
messuage, and the ground on which it stood, had been swept into the
sea, so that the actual possession and enjoyment of the same had become
an impossibility, could it be contended that Edward M. Lyte, (if
otherwise entitled) was thereby deprived of his right to the chattels?
The failure of possession, in that case, would be dne to the act of God
; but it made no difference, whether such failure arose by the act of
God or man, provided the act were not that of the testator. In
order to deprive Edward M. Lyte of the chattels to which, on coming
into the actual possession of the freeholds under the limitations of
the will, he would, undoubtedly, have been entitled, his failure of
possession must arise from some act or disposition of the testator, and
not from some foreign circumstance (such as the execution of a
disentailing deed) over which the testator had not, and could not have,
His Honour referred to the cases of Potts v. Potts and Lord Scarsdale v. Curzon, and
said, that they confirmed him in the view which he took of the present
case. He should make a declaration, that the defendant, Edward M.
Lyte, was absolutely entitled to tho plate bequeathed by the will of
William Maxwell .
Ellis vs Maxwell: The Revised Reports:
Being a Republication of Such Cases in the English Courts of Common Law
and Equity from the Year 1785, as are Still of Practical Utility ed.
Sir Frederick Pollock, 1901, pp235-243
- Hogg vs Jones: The New Reports, containing Cases Decided in the Courts of Equity and Common Law, Volume 1 (November 1862 to March 1863) ed. George Osborne Morgan, Charles Edward Jemmett, Henry Tindal Atkinson, J. Morgan Howard and John Blosset Maule, 1863 pp222-225
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