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![handle is hein.slavery/ssactsengr0875 and id is 1 raw text is: DERBISHIRE V. HOME
bequeathed, and which I hereby revoke; and, in lieu thereof, I will and direct that
the said John Fenwick and Jonathan Thompson shall stand possessed of the said sum
of £1000 so bequeathed to them as aforesaid, upon the trusts following, that is to say,
upon trust to pay, apply and dispose of the dividends and annual proceeds thereof as
and when the same shall become due and payable for and towards the maintenance
[700] and education of my said granddaughter Catherine Lowdon, until she attains
the age of twenty-two years; and when and so soon as my said granddaughter attains
the age of twenty-two years, upon trust to pay the dividends and annual proceeds
thereof as and when the same shall become due and payable unto my said grand-
daughter Catherine Lowdon, to and for her own use and benefit, without the same
being subject or liable to the control, debts or engagements of any husband she may
marry, for and during the term of her natural life; and, in the event of my said
granddaughter Catherine Lowdon dying, either under or above the age of twenty-two
years leaving lawful issue, then in trust for all or any of the children or child of my
said granddaughter Catherine Lowdon, and, if more than one, in equal shares as
tenants in common: But in case my said granddaughter Catherine Lowdon shall
depart this life without leaving lawful issue, then in trust for my children living at
the time of her death, and the children of such of my children as may then have
departed this life, in equal shares and proportions for ever, such children of my said
deceased children, nevertheless, taking only per stirpes and not per capita.
The third codicil was dated the 3d of March 1851, and was as follows :- I declare
this is the last codicil to the will of me Catherine Rumney, of Brough, Westmoreland,
widow, to say I have altered my views respecting my dear granddaughter Catherine
Lowdon, respecting the £1000 as left in my will, and which I now think might prove
a snare for her. I now leave £500 for schooling and board ; when at a proper age to
be sent to a respectable place for useful teaching, under the sanction of my trustees
and friends, Mr. John Fenwick of Newcastle and Mr. Jonathan Thompson of Long-
marton, which my other friends and her aunt will, I hope, approve on.
Mr. Forster, Mr. Giffard and Mr. Martineau appeared for the parties beneficially
interested.
[701] Mr. Malins and Mr. Smythe, for the trustees.
The following cases were cited :-Heming v. Clutterbuck (1 Bligh (N. S.), 479), Fraser
v. Byng (1 Russ. & My. 90), Kidd v. North (2 Ph. 91), and. Bussell v. Dickson (2 D. &
W. 133; and see Guy v. Sharp, 1 My. & K. 589).
THE VICE-CHANCELLOR [Sir James Parker]. The Court cannot of course be sure
that it is putting upon instruments like these such a construction as will carry into
effect the testatrix's intention. [After reading the portions of the will and codicil
above set out, His Honour continued.] In the third codicil there is no reference
made to the second, nor does the testatrix declare any alteration of her views, as
expressed in the former codicil, but only of those expressed in the will. Without
speculating on a revocation, I see nothing to revoke the provisions made for the
children of the legatee by the second codicil. Whether she had the codicil before her
or not I cannot tell. She continues, I now leave £500 for schooling and board,
when at a proper age to be sent to a respectable place for teaching. Whether she
meant £500 in addition to the £1000, or in substitution for £500 part of the £1000,
I am unable to say ; but the conclusion of law I take to be that there is nothing to
revoke the gift contained in the codicil, and that the £500 is not by law a substitu-
tionary gift for the gift in the codicil, being given upon different trusts and for
another purpose. I think that the £500 is given substantively in addition to the
£1000 given by the former codicil.
[702] DERBISHIRE v. H031E. Jan. 15, 16, 19, 25, 28, July 16, 1852.
[S. C. affirmed, 3 De G. M. & G. 80; 43 E. R. 32 (with note).]
In 1817 a gentleman, then an infant, married a lady of full age, who was, as the
administratrix of her uncle with his will annexed, possessed of certain sums of stock
and of negro slaves, to the income of which she was, under the will, beneficially
1306
&DE G. & SM. 700.](ViewImageLocal?handle=hein.slavery/ssactsengr0875&div=1&collection=&method=preview&ext=.png&size=3)