Neutral Citation Number: [1862] EWHC Ch J67
(1862) 4 De GF & J 517; 45 ER 1284 

IN THE COURT OF APPEAL IN CHANCERY

  4 June & 12 July 1862 

B e f o r e :

The Lord Chancellor Lord Westbury
____________________

Between:

DILLWYN
v
LLEWELYN

____________________

This was the appeal of the Plaintiff from a decree of the Master of the Rolls declaring the Plaintiff entitled to a conveyance of, but only of, a life-estate in certain lands in which he claimed an estate in fee-simple. The grounds of the decision were, that a gift of the lands had been made to the Plaintiff by his father, Llewelyn W. Dillwyn, the testator in the cause, under such circumstances as to entitle the Plaintiff to call for a conveyance of the legal estate, but that according to the terms of the memorandum of gift an estate for life only was intended. 

Before the date of the gift in question, the father made his will dated the 21st June 1847, whereby he devised all and singular his real estates, both freehold and copyhold, in the two counties of Glamorgan and Caermarthen, with the appurtenances, unto John Montgomery Traherne and to the Defendant John Dillwyn Llewelyn, who was the testator's eldest son, and the Plaintiff Lewis Llewelyn Dillwyn, who was the testator's second son, their heirs and assigns, upon trust after the testator's decease to convey and assure the same to the use of the testator's wife for life, with remainder to the use of or in trust for the Plaintiff and his assigns for his life without impeachment of waste, with a limitation to trustees to provide contingent remainders, with remainder to the use of or in trust for the son or sons of the Plaintiff in such proportions, if there should be more than one son, as the Plaintiff might by will appoint, and subject thereto to the use of the Plaintiff's eldest son, and in default of the Plaintiff having any son who might attain the age of twenty-one years, then with remainder to the testator's eldest son John Diliwyn Llewelyn, his heirs and assigns for ever; provided nevertheless, that if the Plaintiff should happen to die without any male issue who might attain the age of twenty-one years, the testator's aforesaid freehold and copyhold estates should be charged with the payment of an annuity of £200 to each of his daughters, the Defendants Fanny Llewelyn Moggeridge and Mary Welby, then Mary Dillwyn, as an additional provision for them, and so that those annuities might be received by them respectively for their sole and separate use during their lives. The testator made three codicils, dated respectively the 21st June 1847, the 8th August 1852, and the 22d August 1852, not affecting the above dispositions. 

In 1853 the testator, who resided at Sketty Hall, and had expressed a wish that the Plaintiff, who was in want of a residence, should reside near him, offered the Plaintiff a farm called Hendrefoilan, in order that the Plaintiff might build a house upon the land. The Plaintiff accepted the offer, and a memorandum was signed by the testator and his eldest son in the following terms: 

"Hendrefoilan, together with my other freehold estates, are left in my will to my dearly beloved wife, but it is her wish, and I hereby join her in presenting the same to our son Lewis Llewelyn Dillwyn, for the purpose of furnishing himself with a dwelling-house. L. W. DILLWYN. "
J. D. Llewelyn. 	Feb. 10, 1853. 	Sketty Hall." 

The Plaintiff thereupon purchased from the tenant of the farm his growing crops and manure, took possession of the farm and built a residence at an expense of £14,000, including the costs of laying out and planting the grounds. This was done with the knowledge and approbation of the testator, and Plaintiff had ever since continued to occupy the residence, but no conveyance of the legal estate was ever executed to him. In August 1855 the testator died. The Plaintiff sought by his bill a declaration of his rights, and that the Defendant John Dillwyn Llewelyn might be ordered to execute to him a conveyance of the estate. 

By the decree under appeal it was declared that the Plaintiff was entitled to an equitable interest in the property for his life, and conveyance was decreed accordingly. 

Mr. Selwyn and Mr. Hobhouse, for the Appellant, contended that the intention must have been to give the whole fee-simple. 

Mr. Lloyd and Mr. Surrage, for the Respondent, contended that the bill ought to have been dismissed, as the Court would not aid an incomplete gift, and that, at all events, the terms of the memorandum could at the utmost give an equitable estate for life. 

The following authorities were referred to: The East India Company v. Vincent (2 Atk. 84); Dann v. Spurrier (7 Ves. 235); The Duke of Beaufort v. Patrick (17 Beav. 69); The Somersetshire Canal Company v. Harcourt (24 Beav. 571); and The Unity Joint Stock Bank v. King (25 Beav. 72). 

THE LORD CHANCELLOR. In this case the testator devised his property to his wife, the Plaintiff's mother, during her life, with remainder to the Plaintiff for life, with remainder to the first and other sons of the Plaintiff. Subsequently the father and mother became desirous that the Plaintiff, their son, should reside in their immediate neighbourhood, and accordingly they selected a small estate and determined to give it to the son in order that he might build a proper dwelling-house for his residence thereon. A memorandum was made of the transaction, which is in these words [His Lordship read it.]. 

This memorandum was signed by the testator and also by his eldest son. The Plaintiff was put in possession of the estate and immediately proceeded to build a dwelling-house thereon, and laid out, as it is stated, a sum of no less than £14,000. This expenditure took place in the lifetime of the father, and with his assent and approbation. No alteration was made by the father in his will, and he died in the month of August 1855. The question now arises, what estate the Plaintiff has in the property so given to him, and which was made the site of his dwelling-house. The mother is willing that the son should be regarded as the absolute owner; but inasmuch as the estates of the testator under the will are given to the first and other sons of the Plaintiff, his eldest child, who is an infant, is interested in contesting the effect of the transaction, and it requires therefore to be narrowly examined by reason of the infancy of the child. 

About the rules of the Court there can be no controversy. A voluntary agreement will not be completed or assisted by a Court of Equity, in cases of mere gift. If anything be wanting to complete the title of the donee, a Court of Equity will not assist him in obtaining it; for a mere donee can have no right to claim more than he has received. But the subsequent acts of the donor may give the donee that right or ground of claim which he did not acquire from the original gift. Thus, if A. gives a house to B., but makes no formal conveyance, and the house is afterwards, on the marriage of B., included, with the knowledge of A., in the marriage settlement of B., A. would be bound to complete the title of the parties claiming under that settlement. So if A. puts B. in possession of a piece of land, and tells him, "I give it to you that you may build a house on it," and B. on the strength of that promise, with the knowledge of A., expends a large sum of money in building a house accordingly, I cannot doubt that the donee acquires a right from the subsequent transaction to call on the donor to perform that contract and complete the imperfect donation which was made. The case is somewhat analogous to that of verbal agreement not binding originally for the want of the memorandum in writing signed by the party to be charged, but which becomes binding by virtue of the subsequent part performance. The early case of Foxcroft v. Lester (2 Yern. 456), decided by the House of Lords, is an example nearly approaching to the terms of the present case. 

The Master of the Rolls, however, seems to have thought that a question might still remain as to the extent of the estate taken by the donee, and that in this particular case the extent of the donee's interest depended on the terms of the memorandum. I am not of that opinion. The equity of the donee and the estate to be claimed by virtue of it depend on the transaction, that is, on the acts done, and not on the language of the memorandum, except as that shews the purpose and intent of the gift. The estate was given as the site of a dwelling-house to be erected by the son. The ownership of the dwelling-house and the ownership of the estate must be considered as intended to be co-extensive and co-equal. No one builds a house for his own life only, and it is absurd to suppose that it was intended by either party that the house, at the death of the son, should become the property of the father. If, therefore, I am right in the conclusion of law that the subsequent expenditure by the son, with the approbation of the father, supplied a valuable consideration originally wanting, the memorandum signed by the father and son must be thenceforth regarded as an agreement for the soil extending to the fee-simple of the land. In a contract for sale of an estate no words of limitation are necessary to include the fee-simple; but, further, upon the construction of the memorandum itself, taken apart from the subsequent acts, I should be of opinion that it was the plain intention of the testator to vest in the son the absolute ownership of the estate. The only inquiry therefore is, whether the son's expenditure on the faith of the memorandum supplied a valuable consideration and created a binding obligation. On this I have no doubt; and it therefore follows that the intention to give the fee-simple must be performed, and that the decree ought to declare the son the absolute owner of the estate comprised in the memorandum. 

I propose, therefore, to vary the decree of the Master of the Rolls, and to declare, by virtue of the original gift made by the testator and of the subsequent expenditure by the Plaintiff with the approbation of the testator, and of the right and obligation resulting therefrom, the Plaintiff is entitled to have a conveyance from the trustees of the testator's will and other parties interested under the same of all their estate and interest under the testator's will in the estate of Hendrefoilan in the pleadings mentioned, and with this declaration refer it to the Judge in Chambers to settle such conveyance accordingly.