Analysis of Dr Fox's will

Accession 242/6/12

 

1841

Dr Fox Deceased

CASE

For the opinion of Mr Weston

Bayly  Solicitor Plymouth

Case

3rd April 1830  

By Will of this date Joseph Fox late of Plymouth M.D. deceased after giving certain pecuniary and specific legacies gave and bequeathed All his residuary personal Estate to Trustees Upon Trust to permit his widow to take the income for her life making up the income of Charles James Fox his son, Emily Sleeman and Sophia Jas Fox and Mrs Mitchell his daughters with a provision he had already made for them amount to 100 per annum cash provided the income of his wife should not be reduced below 500 per annum and after the death of his wife he directed the Trustees to sell and convert into money his residuary personal estate and pay unto his daughter Sophia James Fox 400.

 

Then the legacy duty and then within 3 months after such conversion and after the payment of Legacy Duty Upon Trust to divide the whole of the Trust Monies in 4 equal parts and pay one quarter part thereof unto his son absolutely And as one to one other equal part or share of the said Trust Moneys together with such additions thereto as thereinafter mentioned (if any) In Trust that his daughter Emily Sleeman might be entitled to the same Subject to the Trusts and limitations thereinafter contained And as to the remaining 2 parts In trust in a similar manner for his other daughters Mary James Mitchell and Sophia James Fox.

And the Testator and thereby direct and declare that the respective parts and shares of each of his said daughters Emily Sleeman, Sophia James Fox and Mary James Mitchell of and in the said trust monies so divided to be divided as aforesaid should be held by the said Trustees for the time being so and in such manner that each of his said daughters might receive and take the Dividends, Interest and income of her respective part or share thereof and in the said Trust monies for her life for her sole and separate use free from the engagements or control of any present or future husband respectively with whom she might intermarry and so that her accept whether sole or married might be a sufficient discharge for the same dividends interest and income respectively. Then to their children with the powers of appointment and in default of children with power to appoint absolutely by Will

 

During the lifetime of the widow Charles James Fox the son and Mrs Sleeman and Sophia Jas Fox two of the daughters received 20 per annum under the direction in the Will to make up the income to 100 per annum No direction was given for any payment to be made to his other daughter.

 

The Widow died in November 1839 and the other Trustees have only recently succeeded in realizing the personal Estate bequeathed to them but they have an urgent request of the 3 daughters of the Testator made advances to them for their support according to the amount of the respective incomes which they might each reasonably calculate upon deriving from their respective shares on their being invested for their benefit according to the directions of the Will.

 

There appears to be some doubt owing to the daughters not being legitimate whether these advances for maintenance can be deducted from the amounts directed to be invested for the benefit of each daughter and her children and on the other hand a feeling appeals to be entertained by the parties themselves that the Trustees have not advanced as much as they would be justified in advancing the income received from the Estate before it was realizes being much larger than the advances made.

This arises from the nature of the Estate a considerable portion of it consisting of Leasehold Houses producing considerable rents but held for a term of Fifteen Years remained unexpired when the houses were disposed of and they of course only realizes a comparatively small number of years purchase.

 

24th December 1834: 

Under the Will of the Widow Mrs Elizabeth Fox of this date a similar question arises Mrs Sleeman, Mrs Mitchell and Miss Sophia James Fox were the natural daughters of Dr Fox born many years after his marriage with his wife by whom he had no children.

Mrs Sleeman was however adopted by her from her childhood and resided with her until his death.

The two other daughters were brought up at a distance.

By her Will however Mrs Fox directs her Trustees to convert into money her personal Estate and to stand possessed thereof Upon Trust as to one third part thereof for Mrs Sleeman and the other two third parts thereof to be divided equally between Charles James Fox, Mrs Mitchell and Sophia James Fox.

The daughters shares to be invested and the interest paid them during their lives and afterwards the principal to be paid according to their respective appointments by Will and in default of payment to their respective Executors.

The Trustees have already realised and divided the proceeds of this Estate it having consisted almost entirely of money and securities for money but Mrs Sleeman Mrs Mitchell and Miss Fox are very desirous to have the income which has accrued since the Death of the Testatrix paid over to them instead of being invested. Mrs Mitchell particularly has a large family with small income.

You will therefore be pleased to advise the Trustees

1st 

Whether under Dr Fox's Will they are justified in making advances to his illegitimate daughters for their maintenance out of the accruing income between Mrs Fox's death and the Division of the Estate now nearly 18 months instead of investing the whole of each share as ascertained on the division and upon which Duty has been paid.

2nd 

In case you think the Trustees are so justified. You will also be pleased to advise what proportion of the income they would be justified in advancing. Whether the whole of the rents received or merely common interest on the sums released from the sale of the houses.

3rd 

Whether under Mrs Fox's Will they will be entitled to make any and what advances by way of maintenance out of the accruing income since her death or whether they must invest the full amount of the Shares upon which duty has been paid consisting as they do both of principal and income accrued since Mrs Fox's death. And you will be pleased to advise the Trustees generally for their guidance herein

 

I have perused the Case and I am of opinion under the circumstances detailed therein that by the Will of Dr Fox the Daughters are entitled to an amount equal to the Dividends of so much 3 per cent Stock as would have been produced by the conversion of the property at the death of the Testator's wife and under the Will of Mrs Fox to the Dividends according to the Same Rule reckoning the conversion at the end of one year after her decease

In either case the sums to be advanced to the legatees would not have been out of the rents (as supposed in Folio 2 of this Case) Both properties must be converted or supposed to be so before any distribution take place.

I think the proper mode to be adopted by the trustees in the payment of the Legacies would be

1st  As it respects Dr Fox's Will

To take the amount actually realized by the Trustees by sale and otherwise and add to this sum the rents received out of the tenanted property and then calculate how much 3 per cent Stock could have been purchased with the united amount at the Death of Mrs Fox and whatever dividends such amount of stock as purchased at such a period would have been paid at the Bank should be the sum to be divided among the daughters according to the proportions named by the Testators

2nd  As it respects Mrs Fox's Will

The same rule should be adopted making however the period of valuation one year from Mrs Fox's Death instead of contemporaneous with it

(Dinnes v Scott 4 Rails 195)

 

Chas H Weston

Inner Temple

13 May 1841

 

 

 

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