The Stourbridge Observer, Cradley Heath, Halesowen & District Chronicle.
Stourbridge, West Midlands, England, 1874-01-24 00:00:00

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"LOVIBOND v. PERRYN "

The above case has been before Vice-Chancellor
Sir C. Hall, In which a somewhat peculiar quee- ,
Pon of construction ar ice. Mr. Lovibond, by his
will, dated the 2nd of April, 1832, devised all
his real estate in the county of Essex and elsewhere to
trustees for 100 years from his death, with remainder, ,
in the event (which happened) of his having no child
living at, or born after his decease, to the use of sucn
person or persons as his wife, Francis Lovibond, should
by deed or will appoint, and in de f suit of, or subject to,
any such appointment, to the use of his own right heirs.
The trustees of the term of 100 years were directed
thereby to raise out cf the rents of Mr. Lovibond's
estates (subject, however, to his widow's j .inture '
of £l,OOO per annum) and to pay an annuity of
£2O to each and every of his servants, male and !
female, who should be in his service at his death, and '
should have lived with him for six years previously
thereto, by four equal quarterly payments on the usual
quarter days in every year, free of legacy duty, and to
pay the residue of the rents from the time of his death
to Mrs, Lovibond for her sole and separate use and
benefit. Mr. Lovibond made five codicils (to which
further reference is here unnecessary), and by a sixth
codicil, dated the first of September, 18fi I, he revoked
the ultimate devise of the estates to his own right heirs,
and in lien thereof limited the estates to the plaintiff,
Colonel Lovibond, for life, with remainder to his first
and other sons in tail male, with divers remainders
over. Mr. Lovibond died on the 30th of July, 1870.
There were four personn who became entitled to the
annuities of each charged on the devised estates,
and on her husband's death blrs. Lovibond entered
into the possession of the property, and out of the
rents paid the annuities till her death. She did not
exercise the power of appointment given to her by
Mr. Lovibond's will, but by her will, datol the lfitla
of September, 1070, bequeathed certain legacies, and
Rave the residue of her personal estate to trustees
for her sister, the defendant Jane Whitehunt, and
appointed the defendants Richard Henry Perryn
and John Hatfield lirocks her executors. Mrs.
Lovibond made a codicil, dated the Ist of July, 1671,
which was as follows :

" I also direct that sny Executors shall set apart a suf-
ficient fund or funds, security or securities. for securing
nod psyln.rthe four annuities glven by the last wi 1 of my
sold late uear husoand to four clout old sereauts, cut abich
atm uitles I am liable to pay out of Ms property elven to we
by his will.

She died on the let of attober, 1872, and her exe-
cutors duly proved her will and codicil. Jane \Mho
hurgt, her residuary legatee, contended that the devised
estates, of which the plaintiff and his children were re-
epeotively tenants for li'e and tenants in tail in re-
mainder, were not by virtue of the co iil to Mrs.
Lovlbond'e will exotefated from payment of the
annuities as from her death, but were as from that
dote the primary, if not the only fund for their pay.
meet. The plaintiff, Colonel Levitt ind, on the other
hand, charged that the devised estates were intended
by Mi.. Lovibond to be wholly exonerated from the
future payment of the annuities, and that her codicil
was in effect a bequest in favour uf the plaintiff and
' his children of sornuch of her personal estate as would
ba sufficient to pay and discharge the annuitiee.
Mr. Korelake, Q.C., and Mr. C. Walker, for the
plaintiff and hie children, after stating the facts of the
c. 0., were stopped by the Court.
Mr. Greene, Q.C. and Mr. Witt, for the defendant
Jane Whithurst, dre. Lovibond's residuary legatee.
contended first that this was a case cif "mistake."
The widow was not bound to pay the annuities at all;
and, as she bad go erroneously stated in her codicil, it
could net be allowed to operate as a charge of them on
her estate. They remained, therefore, chargeable on
and payable out of the legatee's devised estates alone.
If, however, the cage was not to be treated as one of
"mistake," then the widow had merely provided an
additional fund to secure the payment, in case her
husband's estate was insufficient for that purpose, but
she never meant to " exonerate " that estate and make
her own responsible.
Mr. Worsley Knox, for the annuitants., submitted
that they at all events were clearly entitled tube paid
their annuities. The annuities hasebeen duly paid by
Mrs. Lovibond till her death, and they were and
always had been satisfied with the security of the
estates charged therewith by the testator's will. They
also submitted that, whatever might be the true con
strnction of Mrs. Isoviboncra codicil, they were entitled
ta the benefit of the charge ha their favour created by
the will of Mn. Lovibond, and could not be called upon
to abandon their rights and remedies against the
estates subject to ouch charge.
Mr. Karslake, Q.C., was not called on to reply.
The Vice-Chancellor said the cage was not one of
" mistake "at all. Mrs. Lovibond did not by her
. „. . .

codicil dispose of any property. She merely directed
her ezecutors to do that which she bad herself done
during her tie, and when she said she was liable to
pay the annuities out of ter late husband's property
she stated what was the fact. There was, therefore,
no mieditatement whatever on her part. The
plaintiff's contention was right. There must therefore
be a declaration that he and his children were
entitled, as between the estates devised to them and the
estate of Mrs. Lovibond (but nottas between them and
the annuitants), to have the estates devised them
esontrated, as from Mr. Lovibond'e death, from the
payment of the four annuities of £2O each out of her
general personal estate. The Vice-Chancellor then
added come consequential directions to that declare,
tion, and said that the minutes of the decree ought
to be settled and signed by counsel for all partiee.