Physic gardener Samuel Philip Killick, born 1776, died 22nd August, 1810.
His will was made out in 1809. He left three children: Samuel Philip aged 6, ? aged 4 and ? aged 1.
He made his wife’s father, Richard Arthur, executor, and her executrix, of his will. She received all contents of their house and his money. Her and her father jointly received the business and its profits, with the desire that these be used to maintain her and the children.
However there were debts to pay, and his wife borrowed from friends to pay these debts. She remarried in 1816 to William Newman.
When the youngest child reached 21, the children filed a lawsuit against their mother and her husband, for the profits of the business. The case of Killick v Newman is described below.
This was a bill filed in 1834 by the children of Samuel Philip Killick, late of Mitcham, Surrey, (after they had attained the age of twenty-one,) against his widow and her second husband. The object of the suit was to have the will established, and to have an account of the profits of trade. The will, which bore date the 6th of November, 1809, was to the following effect:
First, the testator willed and directed, that all his just debts, funeral and testamentary charges, should be paid; and he appointed his father in law, Richard Arthur, and his wife, Bridget Killick, to be executor and executrix of his will.
He gave and bequeathed unto the said Richard Arthur, the sum of £10. He gave and bequeathed unto his said wife all his household furniture, plate, linen, china, and every other article in the house, for her own separate use; and also all bonds, bills, monies, and securities, and all his stock, profits in trade, implements and utensils in trade, together with all leaseholds and personal effects whatsoever and wheresoever. He gave and bequeathed unto his executor and executrix, or the survivor of them, towards the bringing up his children, and placing out for their advantage any monies that might or could be spared out of trade, for the benefit of his children, and the survivors of them, till the youngest child arrived at the age of twenty-one years, and then it was his will, and he directed, that what property might, at that time, remain in the hands of his said executor and executrix, or the survivor of them, if any property be by them laid out in government securities, that the whole of such securities, and all other property arising from the profits of his trade or otherwise, be equally divided between his surviving children and his said wife.
The testator (who was a physic gardener,) died the 22nd August, 1810, and left three children, of the respective ages of six, four, and one.
Mrs. Killick, in October, 1816, married to the defendant Newman.
The children were maintained by Mrs. Newman till her second marriage, and afterwards by herself and husband.
It appeared that the testator, before his death, had incurred heavy expenses, on account of his long illness, and on account of a law suit; and, on his death, did not leave sufficient to pay the whole of his debts, or to carry on his business.
Mrs. Newman, after the testator’s death, paid off his debts so far as the assets went, and, with the assistance of her friends, paid off the remainder, and was enabled to carry on the business of her late husband, out of which she supported herself and children. She continued, part of the time, to cultivate the land occupied by her husband, as well as employed the same workmen: she also took other lands.
The question was, what interest the wife and children respectively took in the business.
It was contended, that Mr. and Mrs. Newman carried on the trade as trustees for herself and children.
On the other hand, it was contended, that every thing was given to the wife, except what might be spared out of the trade; and that even supposing that not to be the construction of the will, yet, as she had borrowed money for the purpose of paying the testator’s debts, and also for carrying on the business, which otherwise must have been discontinued, she had obtained a right, as a purchaser, to the trade, exclusively of the children, and that, at law, the widow might have pleaded plene administravit. Chaltner v. Bradley.
In answer to which, it was contended, that Mr. and Mrs. Newman could not have become purchasers of the trade, which was trust property.
The Master Of The Rolls said, the difficulty occurred in the wording of the will. It appeared that the testator had had great confidence in his wife, and he gave her the whole management of the business. It was contended, that that business would have been at an end, had not the wife borrowed money for the purpose of carrying on the trade.
His Lordship, however, said,-that the good-will must be considered as property; and in construing the will, the clauses must be read thus :—I give and bequeath unto my said wife, all my household furniture, &c. for her own separate use. This clause must be read distinct from the following clause in the will, which his Lordship said must be considered as one bequest, which would make the will consistent. The bonds, bills, monies, &c. given to his executor and executrix, were to be employed in carrying on the trade, and the wife and children were to be maintained out of it; and the testator relied on his wife to do this. The property which was maintaining the children during their minorities, could be considered as what the testator meant by the monies that might or could be spared out of trade; and though the testator did not leave sufficient to pay his debts, and not enough to enable a person to carry on the trade, still he left her the good-will, and with that she prevailed on the creditors to be indulgent, and obtained money from her friends. She employed the same land and the same workmen as the testator; and, in fact, carried on the same business, for the benefit of herself and children, till the youngest child attained the age of twenty-one years; and the income of the property was thus properly employed. At that period the testator had directed how the property should go. Here his Lordship read the words of the will, and said, under those words, what property remained at that period, would be the property of the wife and children. The question was, what could be the best mode of inquiry how that could be done?
His Lordship afterwards said, that it must be considered that all the profits were absorbed for the maintenance of the wife and children, till the youngest attained twenty-one; and that there must be an inquiry as to what was the state of the trade at the time of the testator’s death, and at the time the youngest child attained twenty-one; and in taking the account, the lands which the wife afterwards took were not to be considered as her capital. And to inquire what capital the widow had brought in, for which she was to have credit. And the children were to have credit for whatever surplus the widow had invested in the trade.
Counsel.—Mr. Boteler, Mr. Treslove, Mr. Roupell, and
Cases cited.—Chalmer’v. Bradley, 1 Jac. & Walker, 51—64;
Wynn v. Hawkins, 1 Brown, 179.