HN2/B3/39/1

Case for Opinion of Counsel (C.Parke of 24 Old Square, Lincoln's Inn)

30 Jan 1878

From: 1816 To: 1878

Reciting: - George Brooks of Flitwick was seized of freehold property in Higham Gobion and in an indenture of 21 May 1816 conveyed it to his son John Thomas Brooks for life, remainder to his children; - HN2/B3/21/14; - HN2/B3/24/21; - HN2/B3/9; - John Thomas Brooks left as issue John Hatfield Brooks, George Henry Brooks and Thomas William Dell Brooks; - John Thomas Brooks' widow Mary and John Hatfield Brooks' wife Sophia Margaret Myburgh Brooks were still living; - John Hatfield and Sophia Margaret Myburgh Brooks had two daughters [Catherine Mary Frances and Marianne Sophia Eugenie] the elder being over 21; there was no possibility of further issue; - Samuel Swaffield was dead leaving John Green as surviving trustee of will of John Thomas Brooks; - HN2/B3/21/14 and HN2/B3/9 were prepared from information given by John Thomas Brooks and in ignorance of the existence of the deed of 21 May 1816 which was tied up with the title deeds of other property and was only recently discovered; - Mary Brooks was "very aged and infirm" and the sale of property in Higham Gobion would allow legacies to be paid after her death; no contract had yet been entered into. Counsel was asked: - could HN2/B3/21/14 be taken to be an execution of general power of appointment given by the deed of 1816; - if not, assuming such power was executed by HN2/B3/9 (sections 10 and 27 of The Wills Act) "has the surviving trustee with the consent of tenant for life power to make an absolute conveyance to a purchaser under the general powers of sale and mortgage or who would be the necessary parties? It is of importance if possible to avoid making the beneficiaries under the Will concur in the conveyance – it is apprehended that a conveyance might be effected under the term of 1,000 years but this probably would not satisfy the purchaser"; - general advice on title also sought Opinion: - HN2/B3/21/14 operated as a valid exercise of the powers to appoint given in the conveyance of 1816; - the equity of redemption passed in HN2/B3/9 and the mortgage debt now stood primarily charged on the mortgaged estate; - the surviving trustee could, without the consent of the tenant for life in possession, exercise the general power of sale contained in HN2/B3/9; - "But it remains to be considered whether the surviving trustee of the will, as between himself (with the consent of the tenant for life in possession) on the one hand, & the remainder men under the will on the other hand, is justified in resorting to the general power of sale at the present time, there being no particular repurchase of land in view and (as the testator's widow is alive) no present right to raise the Legacies. The rule appears to be that where (as here) the Instrument contains the usual clause for interim investment, the Donees of the Power need not necessarily (for protection as between themselves and their trust) have in prospect an immediate reinvestment in land, & that they are within the scope of the Powers if selling without improper motives & in the exercise of a reasonable discretion. In the present case, looking to the advantageous offer stated to have been made for the fee & to Mrs. Brooks' advanced age and infirmity, I am of opinion the surviving trustees may safely & properly exercise the general Power", approval of Mary Brooks not necessary but that of John Hatfield and Sophia Margaret Myburgh Brooks would be prudent; - "The only remaining question is whether the trustees can properly apply (upon Mrs. Brooks' death) the proceeds of sale of the fee arising under the general Power to the discharge of debts & legacies raisable under the term. I consider he can, in as much as the general Power of sale expressly authorizes sale proceeds to be applied in discharging "any mortgage or other charge on incumbrance which may then affect all or any of the hereditaments etc"

item

Parke, C.,
Brooks, George,
Brooks, John Thomas,
Brooks, John Hatfield,
Brooks, George Henry,
Brooks, Thomas William Dell,
Brooks, Mary,
Brooks, Sophia Margaret Myburgh,
Cloete, Sophia Margaret Myburgh,
Brooks, Catherine Mary Frances,
Brooks, Marianne Sophie Eugenie,
Swaffield, Samuel,
Green, John,
Hatfield, Mary

C. Parke, John Green, specific solicitors, George Henry Brooks, deaths, legal papers, John Thomas will: Brooks, HIGHAM GOBION