BHD78/17

Instructions to Counsel to prepare release of trustees and transfer of trust property from trustees of will of J.J.T.Stevens to his widow Elizabeth and daughter Elizabeth (21 in Mar 1877) consisting of a freehold house at Dunstable, a freehold mill and free and copyhold farm at Eaton Bray as well as some land in Totternhoe, the latter subsequently claimed by his sister [see BH/2/78/2] but was ultimately released to the trustees; - at testator's death his debts and later funeral expenses amounted to £389/11/2; - trustees borrowed £200 to settle testator's debts from Joseph Strange secured on the house in Dunstable; - at testator's death the farm was in occupation of John Tingey. The trustees ordered a survey indicating that non repair and improper cultivation had left the farm in a very bad condition. Notice to repair was duly served but then discovered that on 6 Sep 1856, just before the lease, the testator had bound himself in an agreement with Tingey "to do the present repairs where wanted and the said John Tingey to keep the said messuage and farm buildings, gates, stiles and fences in repair during the term on being found materials for the purpose by the said J.J.T.Stevens" the lease contained no reference to present repairs and the trustees insisted on Tingey carrying them out. The trustees felt it best to make an arrangement rather than enter litigation and they agreed to pay at lease £300 in repairing the farm and erecting new buildings and at least £100 in repairing the mill - Tingey agreeing to pay interest on the £100 at 5% until expiration of the lease; - at this point the mortgage on the Dunstable house was called in and the trustees mortgaged part of the farm to raise £400 from Catherine Dancer, £200 of which was used to pay off Strange's mortgage; - repairs to the mill cost £215/12/9 of which £50 was paid out of income and the trustees then borrowed £170 from Joseph Cook secured on the Dunstable house - this mortgage was still outstanding; - the Eaton Bray farm formerly belonged to the testator's grandfather James Warner who devised it to the testator. He also devised to the testator's sister Mary Ann a farm at Stanbridge and designated the two grandchildren his residuary legatees; - in 1864 a suit was instituted, with Mary Ann Stevens as plaintiff, for the administration of the estate of James Warner in which the testator, his wife and daughter were defendants. The court held that two pieces of land in Stanbridge and Billington did not pass to Mary Ann Stevens under the will of James Warner; - on investigation it was also questioned as to whether land in Totternhoe (about 15 acres) occupied with the Eaton Bray farm should pass to M.A.Stevens. She applied to J.J.T.Stevens' trustees for a compromise settlement which was reached on the following terms: 1. the Totternhoe land was vested in the trustees of J.J.T.Stevens; 2. 4a 3r 8p of land in Billington Mead was vested in M.A.Stevens; 3. J.J.T.Stevens' trustees to pay £50 to M.A.Stevens in discharge of £70/15/- rents and profits received by J.J.T.Stevens in respect of Billington Mead; 4. M.A.Stevens paid the taxed costs of the defendants other than beneficiaries under the will of J.J.T.Stevens who had to repay half the costs of M.A.Stevens - this half amounted to £187/4/1 in addition to which £15 was the share of the cost of the mutual conveyances to be made; - to raise more funds the trustees transferred the Dancer mortgage to Thomas Whinnett in 1867 and a further £100 borrowed which was retained by the trustees' solicitor towards his costs. A further mortgage of £1,000 was taken out at the end of the trial with Victoria Caroline Cripps from which £500 was used to pay off Whinnett's mortgage and the costs of the suit amounting to £282/0/10; - of the Eaton Bray farm 56a 1r 0p was copyhold of Manor of Eaton Bray and J.J.T.Stevens was admitted tenant on 6 Dec 1854, previous to this proceedings had been taken to inclose Eaton Bray but the award was not made until 1860 and J.J.T.Stevens was allotted 133a 3r 26p but free and copyhold lands were not distinguished; - after J.J.T.Stevens' death proclamations were made for his heir or devisee and at third proclamation the trustees' solicitor objected to admission as the copyhold land could not be admitted; - the matter remained in abeyance until 1870 when the steward proposed that the trustees be admitted to 56a 1r 0p without distinguishing the lands and an arbitrary fine of 38/- an acre be imposed; the trustees' solicitor objected on the grounds that the whole estate would be tinged with copyhold tenure and that 38/- per acre was too high; - the steward intended to take out a Commission to define the copyhold lands and assess the fine but abandoned the idea; considerable negotiation ensued and in 1875 an agreement to enfranchise was put forward and the deed drawn up and amended by the trustees' solicitor but the trustees decided to wait until J.J.T.Stevens' daughter Elizabeth became 21. The steward was told that the trustees preferred to wait but was shown the amended deed to which he objected. Meanwhile the trustees paid quitrents on the land; - in 1867 the trustees received £141/7/7 which was one sixteenth of the estate of William Stevens, grandfather of J.J.T.Stevens. The sum was kept by Thomas Coates Johnson and used for his own purposes; he was later declared bankrupt but no proof was made against his estate in respect of this debt. It was thought that he was unable to repay it; the co-trustee, Frederick Farr, was aware of the actions of his colleague; - The testator's widow and daughter wished the trust estate wound up but Johnson had lost many of the vouchers, papers etc. regarding the trust. It was proposed that the trustees be released except for the £141/7/7 and any amounts due from them under an account to be prepared; - the testator's solicitor considered to best to take enfranchisement of the copyhold lands and sell the Totternhoe lands in order to avert a fine for admission; - opinion was sought as follows: 1. to advise the trustees, widow and daughter as to the best course to pursue regarding the copyholds; 2. to advise on the draft enfranchisement agreement; 3. to prepare necessary deeds to vest trust properties in widow and daughter; 4. to prepare a release of the trustees; 5. to advise the widow and daughter on the facts disclosed in the instructions Extracts of the award and descriptions of the land Counsel's Opinion: " I have perused the accompanying papers. 1. The difficulty in regard to the copyholds arises from the fact of the Valuer having failed to set out specifically in the Award the portion of the land to be held of Copyhold tenure. If the copyholds be not enfranchised it would be needful in order to the appropriation of the copyhold part to obtain from the Inclosure Commissrs an Order distinguishing the copyholds from the freeholds if they have the power now to make such an Order in regard to which the provisions in the Inclos'e Acts are not clear see Stat 8 & 9 Vict C118 894 ib 8107 (which is limited to 2 years) ib 8142 (which seems limited to lands inclosed under local Acts or enclosed under the Stat of 7th William the 4th for enclos'e of open fields). 9 & 10 Vict C70 (but supposing this clause to apply it requires the consent of both the Lord & the parties entitled to the Copyhold). The expenses attending the applicat'n for such an Order would be very considerable as it would involve a Valuat'n of the Copyholds held by the Testator previously to the Award & such expenses would apparently have to be borne by the applicant (see 7 & 9 Vict C118 & 94 ib 102) unless both parties agreed in the application. If Mrs & Miss Stevens wished to sell a portion of the property it would be needful for them to have the copyholds set out but on the other hand it would be necessary for the Lord to have them set out before he could enforce admittance in seize quosque. If therefore Mrs & Miss Stevens are desirous of holding the whole of the property there would be no necessity for them to have the copyholds distinguished but the delay would be greatly prejudicial to the Lord as he would be deprived of a present fine & in the event of the death of one of the Trustees might lose the benefit of a double fine. The best mode of getting over the difficulty would be to have the property enfranchised for which purpose it would be needful for the Trustees to be admitted. The enfranchisem't would be made to them & they could then hold the Freehold interest to such use as Mrs & Miss Stevens by the Deed of Enfrchisem't should direct without the need of any further convey'ce. If the Trustees of the Manor have adequate powers of enfranchisem't & Sale & are prepared to shew a good title to the Manor the most desirable course would be to effect an Enfranchisem't under their powers without the intervention of the Commiss'rs but if they have not adequate powers & it wo'd be needful to seek the aid of the Commiss'rs it is quite possible they might decline to interfere until the Copyholds to be enfranchised were set out & the value of the copyholds in respect of which the allotments were made was ascertained under their authority, which would probably be attended with great expense & delay. 2. The proposed Agreem't for Emfranchisem't is open to certain object'ns. If the value of the Land per acre was agreed upon there would be no necessity for the interposition of a Valuer for this purpose unless it were agreed that he should be at liberty to give the Lord less than 2 years Rental. It would be better that the parties sho'd agree as to the amount of the Fine and a liberal fine should be assessed considering that the Tenant is under no legal obligation to be admitted till his copyholds be ascertained & that the effect of delay might be to render only a single fine payable. There is no ground for the Lord's claim of Interest on the fine as no fine becomes payable till admittance. I have before stated that it would be desirable to complete the Enfranchisem't without reference to the Commiss'rs if circumst'ces admit of this being done. 3. Article 5 of the agreement should be expunged & the Lord's title shewn as if it will govern the title to the Enfranchised copyholds. The consider'n for the Enfranchisem't to be ascertained by the Vendor should be based on the present Ann value to be agreed upon & the part struck out in page 7 of the Ag'mt is in my opinion properly struck out. 4. The expenses sho'd be borne equally as the Agreem't is for the mutual benefit of the parties & is in fact of greater importance to the Lord than the Tenant as without any enfranchisem't the Lord would get neither fine nor purchase money. The attempt to throw these costs on the Tenant appears to me to be most unreasonable. 3 & 4. I have settled Drt Convey'ce of the Freeh'd property of the testator for the benefit of Mrs & Miss Stevens & an assignm't of the furniture to the former absolutely as she has advanced money out of income to pay off incumbrances I have inserted a Covenant by the Trustees on the applicat'n & at the cost of the owners to cause themselves to be admitted Tenants & to surrender to such uses as Mrs & Miss Stevens should direct. I have also prepared Draft Release to the Trustees from the Trusts. It is desirable how'r to come to a Settlement in regard to the £141 trust money received & misapplied by Mr.Johnson & for paym't whereof Mr.Farr is liable. If Mrs.Stevens knew that the money was retained by Mr.Johnson the liability might be affected by it. Notwithstanding the Release the trustees wo'd be liable to be admitted to & surrender the copyholds under the Cost cont'd in the Deeds & of Reconv'ce. It appears from p.2 of the instruct'ns that the Testator was held by the Court entitled under the Will of James Warner to 2 pieces of land one in Stanbridge & the other in Billington & that by the Order carrying out the compromise (p3) the land in Billington only was directed to be conveyed to Mary Ann Stevens. According to this the Land at Stanbridge would belong to the Trustees* & ought to be included in the Reconveyance. I have not the Order in the Suit to refer to but take the facts from the instructions. In framing the D't Rcv I have assumed that Mrs & Miss Stevens are satisfied with the Tr's acc'ts (see note in Dr't Rcv). It would have been better also to have come to some Arrangem't as to the sum of £141.7.7 rec'd from the ami'x of John Stevens and the Int thereof but I have in this respect adhered to the Instructions & exempted the Liab'y of the Tr's from the Rcv. The Ex'on of the Rcv sh'd however be postponed till the acct's [unreadable words] or practically there w'd be no Rec'v". *No. Both pieces, failing Miss Stevens being entitled, would go to residue. The Stanbridge piece was sold prior to Suit & the proceeds divided between J.J.T.Stevens & his sister & the Parties agreed that the other should go wholly to Miss Stevens".

1877

From: 1854 To: 1877

item

Stevens, John James Theophilus,
Stevens, Elizabeth,
Strange, Joseph,
Tingey, John,
Dancer, Catherine,
Cook, Joseph,
Warner, James,
Stevens, Mary Ann,
Whinnett, Thomas,
Cripps, Victoria Caroline,
Stevens, William,
Johnson, Thomas Coates,
Farr, Frederick

case notes, Eaton Bray Farm, Eaton Bray Manor, enfranchisement, MILLS, agricultural leases, Chancery, BANKRUPTCY, Inclosure, steward, EATON BRAY, TOTTERNHOE, DUNSTABLE, STANBRIDGE, BILLINGTON, Billington fields