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![handle is hein.slavery/ssactsengr0668 and id is 1 raw text is: CRESWELL V. CHESLYN
(1) In Green v. Green, cit. n., 1 P. IV. 644, it was stated that the precedents had been
both ways, but that the most solemn ones were against the children. In Pusey v.
Desbouverie, 3 P. W. 315, however, it was determined by Lord Talbot, that where the
wife was compounded with. it should be taken as if there was no wife, and the like was
held by Lord Hardwicke, Metcalfe v. Ives, 1 Atk. 63. Morris v. Burroughs, ib. 403, and
2 Atk. 627. Read v. Snell, 2 Atk. 644, et vide Pickering v. Lord Stamford, 3 Ves. 337.
The doctrine is the same in the case of advancement, of which, as observed by Sir W.
Grant in Folkes v. Western, 9 Ves. 460, one should think, prima facie, the effect
would be to increase the part of the estate of which he would have power to dispose ;
but it was held otherwise, that it had no effect except to remove that child entirely
out of the way, and to increase the shares of the others.
CRESWELL V. CHESLYN. March 8, 1762.
[S. C. 3 Bro. P. C. 246. See Skrymsher v. Northcote, 1818, 1 Swan. 572. Approved,
Shaw v. M'Mahon, 1843, 2 Conn. & Law. 532; 4 Dr. & W. 438. Distinguished,
Harris v. Davis, 1844, 1 Coll. 426. See Elborne v. Goode, 1844, 14 Sim. 178.
Followed, Sykes v. Sykes, 1867, L. R. 4 Eq. 206; S. C. on appeal, 1868, L. R. 3 Ch.
303. See Fell v. Biddolph, 1875, L. R. 10 C. P. 707.]
Testator gives the residue of his personal estate to his three children A., B., and C.,
share and share alike, as tenants in common, and not as joint tenants ; but by a
codicil revokes C. from being one of his residuary legatees, and gives a pecuniary
legacy instead: held, that this third does not belong to the two other residuary
legatees, but shall go according to the statute of distributions. -S. C. Serj. Hill
MSS.
Richard Cheslyn by his will, bearing date the 31st of July 1758, bequeathed to his
brother Thomas Cheslyn, and his two sons, Richard and Edward Cheslyn, £1000 Bank
stock, in trust, to pay the interest and dividend to his eldest son, Peter Courtney Cheslyn,
for his life ; and after his decease to transfer the same to such persons as would be
entitled thereto by the statute'of distribution; also £1000 Bank stock in trust, for his
daughter, Mary Cheslyn, in like manner ; and after giving several sums to his daughter,
Sarah Creswell (the wife of the plaintiff Henry Creswell), and her children, he gave and
bequeathed to his son Richard £1000, part of his Bank stock, and to his son Edward
£1000, part of his Bank stock. After giving several annuities, and some specific and
pecuniary legacies to his brother and his children, he gave, devised, and bequeathed,
all the rest and residue of his estates, real and personal, of what nature, kind, or
[124] quality soever, which he should be any ways entitled to at the time of his decease,
to his said sons Richard and Edward, and his said daughter Mary Cheslyn equally,
share and share alike, as tenants in common, and not as joint tenants. He appointed
his brother, Thomas Cheslyn, and his two sons, Richard and Edward, joint executors
of his will.
By a codicil, bearing date the 27th of December 1760, reciting, that he had made
his will, and appointed his daughter, Mary Cheslyn, one of his residuary legatees, he
revoked that appointment, and thereby gave her in lieu thereof the interest of £500
New South Sea annuities carrying 3 per cent. to be paid to her half yearly by his
executors during her life, and at her death the principal sum to be equally divided
among her brothers and sisters ; and in all other things confirmed his will.
The testator's daughter, Mary, died on the 17th of April 1761, intestate, and on the
29th of the same month the testator died, leaving his said three sons and his daughter,
Sarah his next of kin. This was a bill by Creswell and his wife, claiming to be entitled
equally with the three sons to a distributive share of the £1000 Bank stock, and £500
New South Sea annuities ; and that the testator having revoked the bequest of one
third of the residuum of his estate, he ought to be considered as having died intestate
with respect thereto, and praying that the same might be distributed between the next
of kin.
The Attorney-General and Mr. Jones for the plaintiffs. The devise of the residue of
the personal estate was to the three children of the testator expressly as tenants in
common-: had one of them died in the lifetime of the testator, the share of that child
would have been lapsed ; so it is also if the share of one of them is revoked by the
2 EDEN, 124.](ViewImageLocal?handle=hein.slavery/ssactsengr0668&div=1&collection=&method=preview&ext=.png&size=3)