About Abraham Rodriguez Brandon
Abraham Rodrigues Brandon (son of Abraham Rodrigues Brandon and Esther Abigail) died 1818 in Barbados.He married Abigail da Fonseca Israel in London, daughter of Hezekiah Joshua Israel and Esther da Fonseca.
More About Abraham Rodrigues Brandon and Abigail da Fonseca Israel:
Children of Abraham Rodrigues Brandon and Abigail da Fonseca Israel are:
- +Abraham Rodrigues Brandon, b. 1766, London, England, d. 06 Jun 1831, Barbados.
- +Moses Rodrigues Brandon.
- Abigail Rodrigues Brandon.
Brandon v. Brandon (1819)
312 Brandon v Brandon June 17 21 July 14 1819 SC 2 Wils Ch 14 See Hinckley v Maclarens 1832 1 My & K 31 Withy v Mangles 1843 10 CI & F 251 Under a marriage settlement personal estate of the wife was vested in trustees upon trust to assign 1000 stock to the husband and in case the wife should die during the life of the husband without issue to transfer one moietvof the remainder to the husband and the other to the nearest and next of kin of the wife in equal shares and the husband covenanted that if the wife should die in her lifetime without leaving issue to survive her 30 days he would within three months after her decease transfer 500 stock to the trustees for the sole use and property of her nearest and next of kin on the death of the wife without issue during her husband's life her brother was declared entitled to a moiety of the trust fund in exclusion of nephews and nieces and the husband having become bankrupt before the death of the wife his assignees are entitled to his moiety of the trust fund without deduction of the sum due by virtue of his covenant which did not create a debt proveable under his commission By a settlement dated 23d October 1787 made previously to the marriage of Abraham Brandon and Abigail Brandon both of the Jewish religion reciting among other things that Abigail Brandon was under the will of her late mother entitled to a considerable part of her estate and effects she assigned the same to Jacob Israel Brandon Gabriel Israel Brandon Raphael Brandon and Daniel Brandon upon trust after the solemnization of the marriage to assign and transfer 1000 3 per Cent consolidated Bank Annuities for her marriage portion to Abraham Brandon and to invest the remainder in government securities in their names and to permit Abraham Brandon to receive the dividends for the joint lives of him and Abigail Brandon and after her decease in case Abraham Brandon should survive her and there should be issue of the marriage in trust for the children of the marriage in manner therein mentioned and in case there should be no issue of the marriage in trust to transfer one moiety of the trust stock to Abraham Brandon surviving her as aforesaid and to transfer the other moiety unto the nearest and next of kin of Abigail Brandon in equal shares among them The settlement then provided that every other sum of money to which Abigail Brandon then was or should become entitled should be paid to the trustees upon the same trusts as the other settled property and it contained a covenant on the part of Abraham Brandon that in case Abigail Brandon should die after the marriage in his life time without leaving issue to survive her 30 days Abraham Brandon should within three months after her decease transfer and pay over 500 3 per Cent consolidated Bank Annuities to the trustees for the sole 313 use and property of the nearest and next of kin of Abigail Brandon The sum to which Abigail Brandon became entitled under her mother's will amounted to 2000 3 per Cent consolidated Bank Annuities which was transferred by the executors to the trustees of the settlement who after the marriage paid 1000 Consols part of it to Abraham Brandon and retained the remainder in their names upon the trusts of the settlement In July 1793 Abraham Brandon became bankrupt Sometime after the marriage a legacy of 1000 was bequeathed to Abigail Brandon by an uncle Jacob Israel Brandon and paid by his executors to the trustees and invested by them in the purchase of stock upon the trusts of the settlement Abigail Brandon died in February 1805 without issue leaving her husband and Jacob Da Fonseca Brandon the Plaintiff her only brother surviving her she also left several nephews and nieces the children of two deceased sisters The bill was filed by Jacob Da Fonseca Brandon against these nephews and nieces the trustees of the settlement the executors of Jacotidsrael Brandon and the assignees of Abraham stating that according to the Jewish law he was the sole next and nearest of kin to Abigail Brandon and claiming in that character to be intitled to one moiety of the funds included in the settlements and also to the sum of 500 covenanted to be paid by Abraham Brandon in the event of his wife dying without issue the bill prayed that the latter sum might be retained out of Abraham Brandon's moiety of the trust fund 314 AH the parties to the settlement were Jews The Plaintiff produced the of some Rabbi that by the Jewish law on the death of a Jew without issue a brother and the children of deceased sisters the whole of his personal devolves upon the brother as the next of kin Franks v Martin 1 Eden Sir Arthur Piggott and Mr Sidebottom for the Plaintiff The phrase next of is a definite description denoting the first degree of consanguinity to comprehend within it unequal degrees would be to confound propinquity and representation The description known to the law long before the statute of distributions in stat 21 H 8 c 5 s 3 and under the provision of that clause directing the to grant probate to the widow or next of kin of the deceased representation tion is not admitted but the grandfather is entitled after brothers and in preference to uncles or nephews Blackborough v Davis 12 Mod G15 IP W 41 Rep temp Holt 43 1 Lord Raym 684 1 Salk 38 251 Com 96 108 Before the statute of distribution 22 & 23 Car 2 c 10 no doubt could have been entertained on the effect of a gift to the next of kin that statute introduced the title by representation but neither that nor the supplemental statute 1 Jac 2 c 17 vary the import of those terms The decision in Worthington v Statham reported as an anonymous case 1 Madd 36 is conclusive in the present case the words in equal degree neither extending nor restricting the description next of kin 315 The Court resorts to the statute of distribution for a construction of general terms of relationship only where the terms are so indefinite that without that construction the gift would be void Thomas v Hole Ca temp Talb 251 Whithornr v Harris 2 Ves Sen 527 Edger v Salisbury Amb 70 Brunsden v Woolredge Amb 507 Isaac v Defrier Amb 595 17 Ves 373 n Green v Howard 1 Bro CC 31 The single authority in support of the Defendant's claim is Phillips v Garth 3 Bro CC 64 But the assertion of Justice Buller that the stat 1 Jac 2 c 17 has given a new sense to the terms next of kin is manifestly erroneous the design of the clause in which those terms occur s 6 was merely to restrict the remedies provided by the former stat 22 & 23 Car 2 c 10 to the persons entitled to distribution under that statute and the terms are employed as descriptive of those persons though not strictly next of kin the widow of an intestate is within the exception of that clause entitled to distribution and it is settled that she is not one of her husband's next of kin Garrick v Lord Camden 14 Ves 372 Bailey v Wright 18 Ves 49 1 Swans 39 The case of Phillips v Garth terminated by compromise and the doctrine there expressed cannot be maintained Marsh v Marsh 1 Bro CC 293 the observations of Lord Eldon in Garrick v Lord Camden 14 Ves 385 and Smith v Campbell Coop 275 a strong authority for the present Plaintiff The express intention of the parties to the settlement was distribution in equal shares that intention will be 316 frustrated by the application of the doctrine of representation a doctrine not found in the Pentateuch On the second question the sum of 500 which the husband covenanted to transfer ought to be retained out of his share had he not become bankrupt the Court would not have compelled the trustees to assign nor suffered him to possess the fund without performing his covenant He is a purchaser and one of the considerations is his covenant the wife therefore as a vendor is entitled to a lien for enforcing that covenant His assignees take his interest subject to all equities affecting him and subject therefore to this equitable right to satisfaction for the non performance of his obligation whether in the form of lien or set off or mutual credit a present debt payable in futuro may be the subject of set off Jeffs v Wood 2 PW 128 Atkinson v Elliott 7 TR 378 Ex parte Boyle Cooke BL 596 Mr Shadwell for the trustees Mr Wetherell and Mr Wyatt for the nephews and nieces of Abigail Brandon The question must be decided by the law of this country not by the Jewish law The parties were domiciled in England the contract was made and the property is situated here The case therefore presents no conflictus legum the lex domicilii the lex loci contractus and the lex loci rei sitas are all the same The law of England is the only law in question Brodie v Barry 2 Ves & Beames 127 and many other cases 317 In the law of England the terms next of kin are a technical description of a class ascertained by the statutes of distribution the class of civil as distinguished from natural kindred Phillips v Garth The decision in Worthington v Statham which is supported by Wimbles v Pitcher 12 Ves 433 proceeded solely on the words in equal degree which exclude the doctrine of representation Mr Heald and Mr Teed for the assignees of Abraham Brandon The assignee are entitled to a moiety of the trust fund and no deduction or proof can be made in respect of the bankrupts covenant His right to a moiety vested immediately on the death of Abigail Brandon j Miis obligation was contingent and could not beconir absolute until three months after that event The Master of the Rolls Sir Wm Grant On the first question whether the Plaintiff the only brother of Abigail Brandon is entitled exclusively or whether the nephews and nieces have a right to participate I see no reason for suspending my opinion The terms of the settlement on which the question arises are nearest and next of kin They occur twice and in the first passage they are followed by the words in equal shares among them Those words however afford no assistance in resolving the difficulty since either mode of construction is consistent with a plurality of claimants The question is whether the property belongs to the persons who are next of kin according to the rule and measure established by the statutes of 318 distribution or to those who are next of kin according to a more strict and natural sense 1 To consider the question without reference to authorities In the construction of deeds the first object is to ascertain the meaning of the parties and if the words are explicit they must prevail The words nearest and next of kin are perfectly exempt from ambiguity and in their general sense unquestionably denote the persons nearest in proximity of consanguinity The present contest is between the brother who undoubtedly answers that description and persons a degree more remote and it is to be inquired whether the contest extends the import of the words next of kin 1 Were this a new case the words are sufficiently explicit to decide it the person who without ambiguity answers the description ought not to be excluded by persons not within the terms The argument for the nephews and nieces is that though not natural next of kin they are admitted in that character under the statute of distribution But no evidence exists that the parties intended to refer to the statute The statute clearly adverts to two classes next of kin in equal degree and next of kin by right of representation not confounding but expressly distinguishing them It is true that the phrase next of kin has long acquired a technical sense and that on a reference to the Master to inquire who are the next of kin of an individual deceased it is unnecessary to add a direction for including those who claim by representation and if the import of words has been fixed by a technical rule that rule should not be infringed The question therefore is have the authorities established a rule on this subject 1 319 The case of Phillips v Garth 3 Bro CC 04 is directly in point and if that case had been followed I should have been unwilling to contradict it But it appears that the doctrine of Justice Buller was not approved by Lord Thurlov and the case ended in a compromise In Garrick v Lord Camden 14 Ves 385 the present Lord Chancellor declared that he had always entertained doubts on the doctrine there expressed and in Smith v Campbell Coop 275 the late Master of the Rolls putting the very case now before the Court adds that he should have decided in favour of the brother That opinion was uttered after a review of all the authorities and affords the third instance of a judicial disapprobation of the doctrine of Justice Bailer In many cases indeed the Court has construed the word relations in a will by reference to the statute of distribution as in Thomas v Hole Ca Temp Talb 251 Green v Howard 1 Bro CC 31 Widmore v Woodroffe Amb 636 Whithorne v Harris 2 Ves Sen 527 Isaac v Defrier Amb 595 17 Ves 373 n and in Edge v Salisbury 1 the words nearest relations received the same construction But it has been properly observed that this rule of construction is founded in convenience 320 alone the Court being compelled to reduce words in their natural sense indefinite to some practical meaning 321 The word family has for the same reason received the like construction Criiwys v Colman 9 Ves 319 and with a like exception of the husband and wife and therefore not precisely conformable to the provisions of the statute 322 Notwithstanding this long line of decisions the late Master of the Rolls in Smith v Campbell thought that he was not prevented by authority from construing a 323 gift to nearest surviving relations in favour of brothers and sisters to the exclusion of nephews and nieces The words of the present instrument are at least equally 324 definite The same conclusion is supported by Wimbles v Pi teller 12 Ves 433 and Worthington v Statham 1 Madd 36 On the first question I am therefore of opinion that the words of the settlement are too explicit and definite to require or admit for their construction reference to the statute and that the weight of authority is against the doctrine of Phillips v Garth The Plaintiff is therefore exclusively entitled to a moiety of the trust fund The second question I shall not decide without further consideration and reference to authorities July 1 4 The Master of the Nolls On the first question in this case I retain the opinion which I have expressed that the Plaintiff is exclusively entitled under the words nearest and next of kin The question here arises not on an intestacy but on the construction of a deed even in a case of intestacy the statute of distribution would afford a rule since it has been expressly enacted that that statute shall not extend to the 325 estates of femes covert 29 Car 2 e 3 s 25 and in the division of this property of a feme covert the Court therefore could not resort to the statute as a guide The next question which involves more difficulty is whether the trustees or the Plaintiff as their cestui que trust are entitled to deduct the sum of 500 6tock due from Abraham Brandon under his covenant from his moiety of the trust fund In the event of Abigail Brandon's death during the life of her husband without issue which occurred in February 1815 the settlement directs the trustees to transfer a moiety of the trust fund to Abraham Brandon and he having received 1000 on the marriage covenanted on the same event of the death of Abigail Brandon in the circumstances mentioned to transfer to the same trustees 500 stock in trust for her next of kin Abraham Brandon having become bankrupt in 1793 his assignees now claim his moiety of the trust fund while on the other hand the Plaintiff and the trustees insist that they are entitled to deduct from that moiety the sum of 500 stock either on the principle of mutual debt and credit or of lien or as having an equitable right to prevent his assignees receiving all that was due became due from him The interest of the bankrupt in the property was at the time of the bankruptcy contingent and not reduced to certainty until 22 years after that event by the death of his wife but that contingent interest such as it was and all the bankrupts right and possibility was on the bankruptcy transferred to his assignees they became 326 eventually entitled to it as their absolute property and the trustees became trustees for them The fund thus acquired was derived not from the next of kin of Abigail Brandon but from herself as a part of her estate purchased by the marriage On the other hand the debt claimed by the trustees is due solely on the personal covenant of Abraham Brandon and in no other manner secured It was therefore on his part substantially a contract with his wife before marriage in consideration of the marriage and the property derived under it to pay the sum of 500 stock in a specified event The first question is whether the debt created by this covenant was provable under the commission against Abraham Brandon 1 Clearly not The debt had nu existence at the date of the bankruptcy it was then matter of contingency whether any debt would ever arise Is it then a debt which can be set off under the statute i 5 Geo 2 c 30 s 28 I am of opinion that it is not In order to be within the operation of that statute the debt must not be contingent it must be a debt subsisting at the time of the bankruptcy Here no debt existed until more than 20 years after that event This is not a case of mutual debt and credit here is no credit in any sense of that term nor any mutual debt between the same parties The trust fund a moiety of which was given to the husband moved from the wife there is no mutual debt or credit with her but her nominee or next of kin who made no advance and entered into no contract was eventually to become entitled to the sum in question Is there then any equity for charging this debt upon the fund 1 I think not No one is liable to pay this debt but the bankrupt It is his debt arising since his 327 bankruptcy and not provable under his commission There is no ground for charging his debt on a fund belonging to others The trust fund is vested in his assignees and they are not by any statute or equity subject to the payment of this sum If there is any injustice in the case it arises from the omission in the settlement to create a lien on the fund for this contingent debt but no lien can be here raised by implication nor is there any equity for charging the property of others with to him under which by the same deed the debt of the bankrupt To set off one against the other would be to confound distinct righta For these reasons I am of opinion that the claims cannot be blended The sum due from Abraham Brandon can neither be proved under his commission nor deducted from the sum due to his assignees under the settlement His honor doth declare that the Plaintiff as the sole next of kin of Abigail Brandon deceased is under the settlement and will above mentioned entitled to one moiety of the said several funds and the accumulations thereof since the decease of the said Abigail Brandon until the transfer and that the Defendant Abraham Brandon having become entitled in like manner to the other moiety thereof the Defendants his assignees are entitled to such moiety and it is ordered that it be referred to Mr Stephen one &c to tax as between solicitor and client all parties their costs of this suit &c Reg Lib B 1818 fol 2052 2054 1 Amb 70 See in addition to the cases cited Carr v Bedford 2 Bey in Cha 77 Griffith v Jones 2 Rep in Cha 179 2 Freem 96 Jones v Beale 2 Vern 381 Anon 1 PW 327 Roach v Hammond Prec in Cha 401 Attorney General v Buckland cited Amb 7 1 1 Ves Sen 231 Harding v Glyn 1 Atk 469 Bennett v Honeywood Amb 708 Supple v Lowson Amb 729 Rayner v Mowbray 3 Bro CC 234 Stamp v Cooke 1 Cox 234 Masters v Hooper 4 Bro CC 207 Hands v Hands 1 TR 437 n Devisme v Mellish 5 Ves 529 Mahon v Savage 1 Schoales & Lefr 111 Pope v Whitcombe 3 Mer 689 The following case is imperfectly reported Amb 397