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Knight V Broughton [1843-44] 11 Clark and Finnelly 513, 8 ER 1195

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Knight V Broughton [1843-44] 11 Clark and Finnelly 513, 8 ER 1195 Knight v Broughton [1843-44] 11 Clark and Finnelly 513, 8 ER 1195 Report Date: 1843, 1844 [11-Clark & Finnelly-513] JOHN KNIGHT and Others, - Appellants; Sir WILLIAM EDWARD ROUSE BOUGHTON, Baronet, and Others, - Respondents [May 1, 9, 15, 22, 23, 26, and 30, 1843; Sept. 4, 1844]. Devise in Fee; whether Absolute or in Trust-Precatory Words-Uncertainty of Subject. [Mews' Dig xv. 1469. S.C. 8 Jur. 923; and, in Court below, sub nom. Knight V. Knight, 3 Beav. 148; 9 L.J. Ch. 354; 4 Jur. 839. Commented on in Holmesdale 11 Clark & Finnelly 514, 8 ER p1196 v West, 1866, L.R. 3 Eq. 485; Shelley v Shelley, 1868, L.R. 6 Eq. 544, 545; Ellis v Ellis, 1875, 44 L.J. Ch. 226.] R. P. K. being, entitled, under a settlement and will of his grandfather, to real estates in tail male, with remainders to his cousins in tail, with remainder to himself in fee, as right heir, of the settlor, suffered a recovery, and acquired the fee simple. He had other, estates in fee-simple by purchase, and considerable personal estate. He, by his will gave, all his estates, real and personal, to his brother, T. A. K., if living at his own decease, and if not., to. T. A. K.'s son, T. A. K. the younger; and in case he should die before the testator, to his eldest son or next descendant in the direct male line; and in case he should leave no such descendant, to the next male issue of his said brother and his next descendant in the direct male, line; but in case, no such issue, or descendant of his said brother or, nephew should be living at the time of the testator's decease, to the next descendant in the direct male line of his said grandfather., according to the purport of his will, under which the testator inherited those, estates, subject in every case to certain reservations out of the rents; and he appointed the person who should inherit his said estates under his will, his sole executor " and trustee, to carry the same, and everything contained therein duly into, execution, confiding in the approved honour and integrity of his family to take, no advantage of any technical inaccuracies, but to admit all the comparatively small reservations which he made out of so, large, a property, according to the plain and obvious meaning of his words." He. then, after giving some, legacies, gave his gems and other articles to the British Museum, " on condition that the next descendant in the direct male, line, then living of his said grandfather should be made an hereditary trustee, to be continued in perpetual succession t& his next descendants in the direct male line." And he concluded thus: - " I trust to the liberality of my successor's to reward any others of my old servants and tenants according to their, deserts; and to their justice, in continuing the estates in the male succession, according to the will of the founder of the family, my above-named grandfather." T. A. K. survived the testator, and died without leaving any son Held, that T. A. K. took the estates in fee, absolutely, and that no trust was, or was intended to be created by the will, a discretion being left to the devisees to defeat the testator's expressed desire. Semble, that the property to which the words of desire applied, and the nature of the estate to be taken in it, were not sufficiently certain to raise a trust: - Per the Lord. Chancellor. This was an appeal from a decree of the Master of the Rolls, upon the construction of the will of Richard [11-Clark & Finnelly-514] Payne Knight, who at the time, of making the same, and thenceforth down to and at the time of his decease, was seised in fee simple, of divers freehold estates; and was also, at the time of his decease, possessed of a large personal estate., comprising, among other things, a valuable collection of gems and articles of virtue. The greater, part of the freehold estates (known by the general name, of the Downton estates, and situate in the counties of Hereford and Salop) had devolved on him as tenant in tail male under the will, and a settlement also of his grandfather Richard Knight, who died in 1745 (the settlement, and the substance of the will of Richard Knight, are stated in the report of this case, 3 Beavan, p. 148); and he, previously to the date of his will, had, by common recoveries or, other assurances, acquired the absolute fee simple and inheritance of these estates. The testator's other freehold estates had been purchased by himself. The will of Richard Payne Knight, dated 30th of June 1814, and duly executed and attested for devising freehold estates, was as follows: - " I give and bequeath all my estates, real and personal, except such parts as are hereinafter, excepted, to my brother. Thomas Andrew Knight, should he be living at the time of my decease; and if not, to his son, Thomas Andrew Knight the younger; and in case that he should die before me, to his eldest son or next descendant in the direct male line; and in case that he should leave no such descendant in the direct male line, to the 11 Clark & Finnelly 515, 8 ER p1197 next male issue of my said brother and his next descendant in the direct male line; but in case that no such issue or descendant of my said brother or nephew should be living at the time of my decease, to the [11-Clark & Finnelly-515] next descendant in the direct male line of my late grandfather Richard Knight, of Downton, according to the purport of his will, under which I have inherited those estates, which his industry and ability had acquired, and of which he had therefore the best right to dispose;* subject nevertheless and liable in every case to the following reservations and deductions out of the rents and profits thereof, which I give and bequeath to the purposes and in the manner, following." Here followed a bequest of £300 to be distributed among the poor of Downton and other parishes in the county of Hereford. The will then went on thus: - "And I do, hereby constitute and, appoint the person who shall inherit my said estates under this my will, my sole executor and trustee, to carry the same and everything contained herein duly into execution; confiding in the approved honour and integrity of my family to take no advantage of any technical inaccuracy, but to admit all the comparatively small reservations which I make, out of so large a property, according to the plain and obvious meaning of my words." The testator then bequeathed "out of the said reserved rents and profits," a weekly sum of 25s. to his faithful servant Anne Payne, and £3 weekly tot a Mrs. Gregory, as a reward for her kindness to him; and then proceeded: - "And I moreover give and bequeath all coins and medals, and all wrought or sculptured articles in every kind of metal, ivory, and gems or precious stones, together with all descriptive catalogues off the [11-Clark & Finnelly-516] same; and all drawings or books of drawings, of every kind, which shall be found in the gallery or, western room of my house in Soho-square, to the British Museum, on condition that, within one year after, my decease, the next descendant in the direct mate line then living of my above-named grandfather, be made an hereditary trustee., with all the privileges of the other, family trustees, to be continued in perpetual succession to his next descendants in the direct male line, so long as any shall exist, and in case of their failure, to the next in the female line; and also upon condition that all duties and other expenses attending the taking possession of and removing the said articles, be paid out of the funds of the said Museum." The will concluded thus: - "I trust to the liberality of my successors to reward any others of my old servants and tenants according to their deserts; and to their justice, in continuing the estates in the male succession, according to the will of the founder of the family, my above-named grandfather Richard Knight. Given under my hand," etc. The testator died in April 1824, without having revoked or altered his said will, leaving the said Thomas Andrew Knight, his only brother and heir-at-law, and Thomas, Andrew Knight the younger, him surviving; and also, leaving surviving him the Appellant John Knight, and his sons, Frederic Winn Knight, Charles Allanson Knight, and Edward Lewis Knight, who are the other, Appellants; and also the said John's younger brother, Thomas Knight the elder, and his sons, Thomas Knight the younger, and Edward Knight (three of the Respondents), and other sons of the said Thomas Knight the elder, hereinafter mentioned. (See pedigree, infra, p. 524) Thomas Andrew Knight, soon after the testator's [11-Clark & Finnelly-517] death, proved his will, and possessed himself of his personal estate and effects, and entered into, possession or receipt of the rents off the real estates. He, also became a trustees of the British Museum, by virtue of the said will, and of an, Act, of Parliament, 5 G. 4, c. 68, passed pursuant thereto, for vesting the said bequests of R. Payne, Knight in the trustees of the Museum, in perpetuity By indentures of lease and release and assignment, dated respectively the 27th and 28th of December 1825, the release and assignment being made between the said T.
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