SCHOOL OF LAW LIBRARY \ TREATISE ON THE LAW OF LEGACIES, BY THE LATE R. S. DONNISON ROPER, ESQ. BARRISTER AT LAW, OF GRAY'S INN. UNDER AN ENTIRELY NEW ARRANGEMENT, AND WITH VERY CONSI- DERABLE ADDITIONS, BY HENRY HOPLEY WHITE, ESQ. BARRISTER AT LAW, OF THE MIDDLE TEMPLE. IN TWO VOLUMES. VOL. I. FIRST AMERICAN, PROM THE THIRD LONDON EDITION. ROBERT H. SMALL CHESNUT STREET. 1829. T lU-RSELL AlfD MAHTIMT, PRIWTER9. TO THE RIGHT HONOURABLE JOHN, EARL OF ELDON, &c. &c. &c. THIS WORK is, WITH HIS LORDSHIP'S PERMISSION, MOST RESPECTFULLY INSCRIBED, BY THE EDITOR. PREFACE. THE late learned Author had intended to republish his Treatise on the Law of Legacies under an entirely new arrangement; and at his death left the thirteen first chap- ters and part of another prepared with that view, but without any other manuscripts from which even an out- line of his plan respecting the remainder of the work could be collected. The completion of this design de- volved upon the Editor, in the prosecution of which he has avoided, as much as possible, alterations in the manu- script chapters left by the late Author, beyond verbal corrections and the addition of subsequent decisions. The substance of the former Editions will be found in the present, but under a new arrangement, which has been adopted in the. hope of rendering the work more useful, and at the same time a more accurate and compre- hensive analysis of a complicated subject. To obviate objections which have been made to the lengthened state- ments of cases in the former Editions, considerable pains have been bestowed in compressing them within the smallest compass consistent with utility. The Editor feels confident that the chapters left by the late Author, and forming about one third of the present volumes, will not disappoint the expectations of those acquainted with his intention of republishing. vi PREFACE* In presenting to the profession the remaining portion of the work, the Editor cannot divest himself of much anxie- ty, lest an undertaking, so ably commenced, should have been concluded in a manner derogating from the high reputation of his deceased friend, and he entertains the hope, that any attempt to diminish the labours of others, in a subject of such acknowledged intricacy, will be received with indulgence. Lincoln's Inn, January, 1828. CONTENTS OF THE FIRST VOLUME, CHAPTER I. Donations mortis causa page 25 SECT. I. The description and nature of a Donatio mortis causa ib. SECT. II. The circumstances required to constitute a Do- natio mortis causa 26 I . As to the gift of the Donee ib, 2. The delivery of Possession ; and, 27 3. Of Evidence admissible to prove the gift and the the sufficiency of such evidence 39 SECT. III. What will defeat the Donation when originally good 41 CHAPTER II. Who may be a Legatee ; and of the Descriptions of Lega- tees 42 SECT. I. Legacies to legitimate children and grand-chil- dren 45 1. Where children living at the date of the will, are entitled in exclusion of those afterwards born ib. 2. Where children living at the death of the testator, are entitled in exclusion of those after born 48 3. The right of a legitimate child in ventre sa mere 52 4. When children living at the time the fund becomes distributable after the testator's death, are and are not entitled in exclusion of those after-born. And, 54 First, When the division is postponed until a child or children attain twenty-one ; and, ib. Second, When the distribution is deferred during the life of a person inesse - 59 5. When a younger child considered an eldest - 63 6. When an eldest or only child considered a younger 65 viii CONTENTS. SECT. I. Legacies to legitimate children continued. 7. When a child required to answer the description literally 66 8. When the word "children" witt and will not in- clude grand-children, fyc. 69 9. When the words " children" and "grand-children" will and will not comprehend great grand-chil- dren, fyc.; and of the claims of grand-children by marriage 75 SECT. II. Legacies to natural children 76 1 ty- 2. Effect of bequests to unborn natural children ib. 3. Capacity of natural children living at the date of the will, to take under the description of chil- dren: and the evidence admissible in those cases 78 SECT. III. Legacies to <( heirs," who entitled 85 1 . When next of kin ib. 2. When children ib. 3. When the heir 88 SECT. IV. Legacies to " issues," who entitled - ib. 1. Grand-children, fyc. - ib. 2. When, the issue of children only who were living at the date of the will - 89 3. When restrained to children - - ib. SECT. V. Legacies to " relations," who entitled 92 1 . When restrained to next of kin, as where the be- quest is - ib. To relations generally; or ib. To near relations; or - 93 To poor relations; or - 94 To most necessitous relations ' - 95 2. When the word relations will comprehend other re- latives than next of kin ; as 96 Where the legacy is given to poor as a perma- nent charity ; 'or ib. Where the bequest is to poor or poorest rela- tions, at the discretion of executors, fyc. And the nature of such discretion ; or 97 When the intention appears upon the will to include more distant relations than next of kin - 100 3. When the word relations may not include all the next of kin; as - 101 In bequests to my nearest relations or my nearest relation - ib. Construction of the term, nearest relation 102 Construction of the words nearest relation, of the name, or of the name and blood of the testator; and the effect of assuming the name by statute or royal license - 103 4. Whether relations by marriage are included in a bequest to relations - 1 04 CONTENTS. ix SECT. VI. Legacies to " next of kin." 106 1. Who entitled under the description - ib. 2. Whether relations by marriage - ib. 3. Sis to distinction when the Statute of Distribution, or intestacy is or is not referred to in the be- quest - ib. 4. Bequest to next of kin in equal degree - 108 SECT. VII. Legacies to " personal representatives," or " legal personal representatives" ib. I. When executors or administrators entitled under the description . - - - ib. 2. When next of kin - 110 3. When children; and 113 4. When a husband or wife ib. SECT. VIII. Construction of bequests when limited to exe- cutors and administrators - 114 SECT. IX. Legacies to " descendants" ib. SECT. X. The word " family," who entitled under it 115 1. When the bequest is immediate and absolute - ib. 2. When the bequest to family is connected with a power of appointment. And the different con- struction when the power is one of selection, and when not 118 SECT. XI. Legacies to " nephews and nieces" 119 SECT. XII. Legacies to " first and second cousms" 120 SECT. XIII. Legacies to e observed, in relation to the last case, that prior and subsequent authorities appear in opposition to the opinion ascribed to the Chief Baron ; for in Lawson v. Lawson,(o] Miller v. Miller,(p) Hill v. Chapman,(q) Snellgrove v. Baily,(r) and Gardner v. Par- ker,(s) no evidence appears to have been given of the gift or delivery of the subjects having been made during the last sickness of the donors, and yet the gifts were supported mortis causa. The law upon this subject may probably be thus stated : When it appears that the donation was made whilst the donor was ill, and only a few days or weeks before his death, as in the cases last referred to, it will be presumed, in the absence of evidence, that the gift was made in contemplation of death, and in the donor's last illness ; but when he for a long period survives the gift, then it seems that evidence will be required that the donor was not only seriously indisposed when he made the gift, but also that it was his last illness ; for the time of the gift being so remote from the period of the donor's death, prevents the presumption before mentioned. In either case, how- ever, if it appear from the evidence that the donation was not made with a view to the death of the donor, it cannot be supported as a gift mortis causa.(t) To the authorities before referred to may be added one of recent date, viz. Walter v. Hodge ;(u) a case in which Martha Hodge, the wife and an executor of her husband, claimed GOOZ.the amount of bank notes, as a gift from her husband mortis causa. The transaction detailed in her answer was, that the testator, shortly before his death, delivered to her a book containing those notes, and informed her that they were for her private use, and which he gave her to be at her own disposal ; that she expended some of them before his death, and the rest were then in her possession. In addition to this, the evidence of Mice Mason, the wife's niece, was given before the Master, (upon whose testimony and the wife's answer he had not charged the latter with the 600/L) the effect of which was, that about eleven days before the testator's death, he, in the witness's presence, delivered to his wife a note-case containing some bank notes, (of the number of which she was ignorant,) telling her if any thing happened to him, the contents of the note-case were her's ; and that on the same day the testator, on his return from the Bank of England, where he had gone to sell stock, gave to his wife, immediately after the delivery of the note-case, other bank notes, (of the amount of which the witness was also ignorant,) saying, " these are to be your's also ;" upon which the wife put them into the note-case. Mice fur- (n) 14 Bro. C. C. 72. (o) Sufira, p. 32. (ft) Sufira, p. 31. ( q) Sufira, p. 34. (r) Sufira, 36. (s) Sufira, p. 27. (0 Tate v. Hilbert, 4 Bro. C. C. 291-294, and the cases referred to in the be- ginning of this section. (u) 2 Swanst. 92. SECT. III.] Donations mortis causa. 41 ther deposed to the testator being at the period of those gifts in an indifferent state of health, but not insensible to what he was doing, and that she understood the gifts to have been made to the wife for her own use conditionally, viz. in case of the testator's death. The question was, whether a donation mortis causa had been sufficiently proved 1 ? And Sir Thomas Plumer, M. R. determined in the ne- gative. The reasons upon which his Honour came to such a conclusion were, first, from the difference between the statement in the answer and the evidence of Alice Mason; the one representing the gift of the whole to be an entire act, and the other as two distinct acts ; the former stating the single act as a gift to commence in prtesenti, while the latter, in contradiction, described the two gifts as made with a view to the donor's death. And secondly, because such con- trary testimony (if Mason's evidence were admitted) prevented that clear and satisfactory evidence of the real nature of the gift or gifts, which is necessary to prove a donation mortis causa. But his Honour was of opinion that Mason's testimony could not be received to establish a species of gift not put in issue by the answer ; and he finally decided, that the evidence was insufficient to prove either a donatio mortis causa or a donation inter vivos : not the former for the reason last mentioned, nor the latter, since it rested solely upon the wife's answer, which was contradicted by the testimony of Alice Mason. The last thing to be considered is, III. What will defeat the donation, after it has been legally made. Since the sole motive of making a donation mortis causa is the expectation of speedy death, the law annexes a condition to the gift, that it shall be void if the donor recover from the disorder, or escape the peril which threatened his life. It follows, therefore, that the donor's recovery, or his escape from the danger, will defeat the gift ; and he may resume the donation, or if prevented, recover it at law.(x) The donee must either continue in possession of the subject from its first delivery till the death of the donor, or by re-delivery be in possession of it at that time ; consequently, if the donor resume the possession and continue it until his decease, the gift will be revok- ed,^) and for the following reason : the gift not being made to take effect immediately, but being inchoate," and depended on the event of the donor's death, locus penitentice was reserved to him, of which change of mind the resumption of possession being evidence, deter- mined the donation. But if the donor do not exercise his power of revocation previously to his death by a complete act, he cannot revoke it by a subsequent will; and upon this principle : that on the death of the donor, the title of the donee becomes, by relation, complete and absolute from the period of delivery in the life of the donor ; and therefore incapable of revocation by an act which was inoperative before and only com- menced at his death.() Yet, although a gift mortis causa cannot be revoked by the will of (JT) Bunn v. Markham, 7 Taunt 224, stated sufira, p. 28. (y) 2 Ves. sen. 433. 7 Taunt 232. (z) See Jones v. Selby, Pre. Ch. 300. 304. VOL. I. F Who may be a Legatee. [On. II. the donor, it may be satisfied by a legacy given to the donee. Sup- pose, then, the donation were of a bond for 1000Z. and by a subse- quent will a legacy of equal amount was given generally to the do- nee, the latter would be satisfaction of the former, subject, however, to the donee's ability to prove that no satisfaction was intended. This was determined in Jones v. Selby before stated. (a) The same principle which authorizes the application of the doc- trine of satisfaction to those species of donation, equally applies to that of election; so that if the donation were of a bond, and the donor afterwards specifically bequeath it, and give by the same will a legacy to the donee, he must elect between the gift and the legacy. (6) CHAPTER II. Who may be a Legatee; and of the Descriptions of Legatees. HAVING in the first chapter treated of a species of disposition, which is neither strictly a legacy, nor a gift inter vivos, but partak- ing of the nature of both ; we now proceed to consider legacies strictly so called, confining our attention in the present chapter First, To the persons capable of being legatees ; and, Secondly, To the persons who take as legatees under certain modes of description. Under the latter division it is proposed to consider SECT. 7. When a child required to answer the description literally. 8. When the word " children" will and will not include grandchil- dren, 4*c. 9. When the words " children and grandchildren will and will not comprehend great grandchildren, #c. ; and of the claims of grand- children by marriage. II. Legacies to natural chil- dren. 1 4* 2. Effect of bequests to unborn natural children. 3. Capacity of natural children liv- ing at the date of the Will, to take under the description ; and the evidence admissible in those cases. SECT. I. Legacies to legitimate chil- ren and grand -children. 1. Where children living at the date of the Will, are entitled in exclu- sion of those afterwards born. 2. Where children living at the death of the testator, are entitled in exclusion of those after-born. 3. The right of a legitimate child in venire sa mere. 4. When children living at the time the fund becomes distributable af- ter the testator's death, are and are not entitled in exclusion of those after-born. And, First, When the division is postponed until a child or children attain 21 ; and Second, When the distribu- tion is deferred during the life of a person in esse. 5. When a younger child considered an eldest. 6. When an eldest or only child considered a younger. III. Legacies to t{ Heirs," who entitled. 1. When next of kin. 2. When children. 3. When the heir. (a) See Jones v. Selby, Pre. Ch. 300. 304. et supra, p. 35. (b) See Johnson v. Smith, 1 Ves. sen. 314. CH. II.] and Description of Legatees. 43 SECT. IV. Legacies to " Issues," who entitled. 1. Grandchildren, $c. . 2. When, the issue of children only who were living at the date of the Will. 3. When restrained to children. V. Legacies to " Relations," who entitled. 1. When restrained to next of kin, as where the bequest is To relations generally ; or To near relations ; or To poor relations ; or To most necessitous relations. 2. When the word relations will comprehend other relatives than next of kin ; as Where the legacy is given to poor as a permanent charity ; or Where the bequest is to poor or poorest relations, at the discretion of executors, fyc. And the nature of such discretion ; or When the intention appears upon the will to include more dis- tant relations than next of kin. 5. W/ien the word relations may not include all the next of kin; as In bequests to my nearest rela- tions or my nearest relation. -, Construction of the term near- est relation. Construction of the words near- est relation, of the name, or of the name and blood of the testator ; and tlie effect of assuming the name by statute or royal licence. 4. Whether relations by marriage are included in a bequest to rela- tions. VI. Legacies to " Next of Kin." 1. Who entitled under the descrip- tion. 2. Whether relations by marriage. 3. Jis to distinction when the sta- tute of distribution, or intestacy is or is not referred to in the be- quest. VII. Legacies to " Personal Representatives" or " Legal personal Representatives." SECT. 1. When executors or administra- tors entitled under the description. 2. When next of kin. 3. When children; and 4. When a husband or wife. VIII. Construction of Bequests when limited to Executors and Administrators. IX. Legacies to " Descen- dants." X. The word " Family," who entitled under it. 1. When the bequest is immediate and absolute. 2. When the bequest to family is connected with a power of appoint- ment. And the. different construc- tion when the power is one of selec- tion, and when not. XI. Legacies to " Nephews and Nieces." XII. Legacies to <( First end Second Cousins." Construction of. V XIII. Legacies to " Govern- ment." XIV. Legacies to " Servants." 1. Who entitled under the descrip- tion; and 2. Ofparol evidence in this case. XV. Of the periods when the persons described by the terms f( Family" or t( Next of Kin" &c. must be in esse to take under the descrip- tions* 1. When at the date of the will. 2. When at the death of the testa- tor ; and 3. When at the happening of an event subsequently to the testa- tor's decease. XVI. When Legatees take per capita, or per stirpes, or per capita et stirpes. \. When per capita. 2. When per stirpes; and 3. When per capita et stirpes. 44 Who way be a Legatee. [Cn. II. SECT. XVII. Effect of mistakes in the names of Legatees. 1. When error in, or omission of name will be rectified by the des- cription of the person or the con- text of the Will. 2. When mistake in name correct- ed by pawl evidence. XVIII. Effect of mistakes in the descriptions of Legatees ; and the admission of parol evidence in those cases. 1. When the error in description rectified by the name. 2. When such error is occasioned by fraud, it will avoid the bequest. 3. When error in description cor- rected by parol evidence, end when SECT. such evidence is inadmissible. 4. fVhen the evidence is insufficient, and the bequest void for uncertain- ty, and 5. When that evidence is insufficient, and the legacy established. XIX. Consequences of imper- fect descriptions of, or imper- fect references to, legatees apparent in Wills, and of the admission of parol evidence in these cases. 1 . Where a blank is left for a Chris- tian name. 2. Where a blank is left for the * whole name. 3. When only the initials of a name are written. FIRST, Who may be a Legatee. 1. Every person is capable of being a legatee unless particularly disabled by the common law or by statutes. Some of the individuals BO disabled are traitors(o) and artificers going abroad to use and teach their trades in foreign countries and not returning home after request so to do by the ambassador, &c,(fe) Also persons neglecting to* take the oaths prescribed by law, and to qualify themselves for offices which they accepted and exercised. (c) To whom may be added individuals twice convicted of denying the truth of the Chris- tian religion, or the divine authority of the Scriptures, (d) Legatees who are attesting witnesses to wills devising freehold estates are not entitled to receive what was so intended for them, be- cause the statute of George the Second(e) avoids the bequests, in order to restore the competency of such witnesses to support the wills, which^ would otherwise be defeated by the operation of the statute of frauds. (f) That statute requires wills of freehold proper- ty to be attested and subscribed by three or more credible witnesses : a description which is not considered applicable to a person who takes an interest under the instrument which he is made to attest in the character of a witness. But the Act of George the Second has been commonly understood not to extend to wills merely disposing of personal property ; an understanding which now appears to have been founded in error ; for Sir William Grant, determined in the case of Lees v. Summorsgill,(g) that a legacy given to a subscribing witness to a will bequeathing personal estate only, was an interest which such person could not legally claim, since the enacting clause of the above statute of George the Second applied to witnesses not only attesting the execution of wills of freehold estates, but to wit- (a) 2 Black. Com. 512. (c) 25 Char. 2. chap. 2. sect. 5. (rf) 9 & 10 Will. 3. chap. 32. (/) 29 Char. 2. chap. 5. sect. 5. (A) 5 Geo. 1. chap. 27, sect. 3. 1 Geo. 1. stat. 2. chap. 13. sect. 8. ( being construed to mean children, equally ap- ply to the term " issue." So that if a bequest were made to Jl. and his issue, with a power for Jl. to appoint among them ; or if the property were given to the issue as* tenants in common, or to them, their executors, administrators and assigns,, the word " issue" would be construed synonimous with children, letting in grand-children, &c. who ansVer the description of issue. In addition to the cases stated and referred to in the last section, is the authority of Hockley v. Mawbey,(n] in which John Russell devised freehold and leasehold estates " to his wife for life, remain- der to his son Richard, and his issue lawfully begotten or to be be- gotten, to be divided among them as Richard should think fit." Lord Thurlow said, it was clear that issue were not intended to take as heirs in tail, but distributively, and in proportions to be fixed by the son ; and that by the word " issue," children and de- scendants from the son, however remote, who might come into ex- istence during his life, would take vested interests, subject to his ap- pointment of the proportions each should have in the property. () 1 Ves. jun. 143-149. 92 Description of Legatees. [Cn. II. Our next inquiry will be, SECT. V. The persons entitled under a bequest to " RELATIONS.'' When the terms adopted by a testator in reference to the objects of his bounty, are so large that the Court cannot discriminate any particular persons intended to be benefited, as in the instance of a legacy to " relations" generally, or to " relations by blood or mar- riage," without enumerating any of them ; the Court, in order to per- form the intention by giving effect to the bequest, will direct' the money to be paid to such of the testator's relatives as would be en- titled under the Statute of Distributions in the event of intestacy,(o) including those of the half blood equally with those of the whole.(p} Lord Thurlow observed in relation to this rule, that ".when, first, cases of this description came before the Court, it said, that to avoid inconvenience, the best way was to adhere to the statute : that the first cases probably were thos.e where testators, having exhausted the persons whom they meant as objects, intended the rest for the individuals to whom the law would give it.( (A) 15 Ves, 9?, SECT. V3 Description of Legatees. 105 tween husband and wife, it is not of that description which falls within the meaning of the Statute of Distributions. (i) Such is the rule when nothing appears from the context of the will explanatory of the sense in which a testator used the word. It must, therefore, receive additional power to exclude relations by marriage, when aided by the inference arising from those relatives being provided for by the testator, and the distribution of the property is deferred till their deaths. Accordingly, in Davies v. Baity, (k) the testator gave the interest of his residuary personal estate to his wife for life, and the capital at her decease " to such of his relations" as would be entitled to it by the Statute of Distributions. Lord Hardwicke determined upon the intention appearing in the will confirmatory of the general rule, that the executor of the widow was not entitled to any share of the principal residue. In Worseley v. Johnson,(l) his Lordship made the like decree under similar circumstances. The testator devised certain lands, of which he was seised in fee, to his wife for life, remainder to his kins- man, Ralph Buckwell, in tail, with remainder to be sold, and the proceeds to be divided among his relations, according to the statute. The question was, whether the wife's executor was entitled to com- pel a sale of the lands, and to receive a proportion of the produce with the testator's next of kin *? And the decision was in the nega- tive. Whether Lord Rosstyn's determination in Maitland v. ddair,(m) is to be relied upon may possibly admit of doubt. There the tes- tator, after giving a number of legacies, and most of them to rela- tions, viz. a brother, sisters, nephews, nieces, and their children, and 500Z. to his brother-in-law, made the following disposition by a co- dicil : " My will is, that whatever money, over and above what I have already bequeathed, I may be possessed of at my death, may be di- vided among my said relations by my executors, in the proportion I have bequeathed the other part of my fortune." His Lordship ex- cluded the brother-in-law from a share of the residue, applying to the case the general rule before mentioned. It may probably be thought that the last decision militates against the testator's intention as expressed in his will. Before disposing of the residue he had given a legacy to his brother-in-law, and class- ed him among his own kindred. When then in disposing of his residuary estate, the testator directed it to be divided among his said relations, and proceeded to order its distribution among them in the proportions he had before given the other part of his fortune, it seems difficult to conceive upon what principle the brother-in-law was excluded, or how, upon such a construction, the residue could, consistently with the intention expressed in the will be divided in the proportions the testator had bequeathed the other part of his property, part of that other property having been expressly given to his brother-in-law. (n) The term " relations," being synonimous with " next of kin," a (i) 1 Ves. sen. 84. 3 Atk. 761. 1 Bro. C. C. 31. 294. ed.by Belt. 3 Ves. 232. f ) 1 Ves. sen. 84. (/) 3 Atk. 758. (m) 3 Ves. 231. (n) See Lord Eldon's observations, 14 Ves. 382. VOL. I. O 106 Description of Legatees. [Cn. II. description of legatees which will be the next subject of considera- tion ; several of the distinctions and observations appearing under the latter title seem applicable to the one we are just leaving ; to which the readers attention is accordingly directed. VI. Legacies to (( NEXT OF KIN." 1. In common acceptation the being of a man's kindred is being of his blood, in which sense the word " kindred" is used in the Sta- tute of Distributions. So that when a man bequeaths " to his own next of kin as if he had died intestate," he is understood to refer to such persons as are related to him by blood, and within the degree mentioned in the statute. But it is not necessary that next of kin should be of the whole blood, for that is only required in deducing titles to freehold estates upon feudal principles ; the half-blood therefore answering the description of next of kin, are equally en- titled with the whole, and if nearer in degree will exclude the whole blood. (o) 2. It follows from these observations, that relations by marriage are in general excluded from participating in a legacy given to next of kin ; and that neither a husband nor wife answers the description required in a bequest to the next of kin of either of them. This was; so determined in Nichols v. Savage,(p) and Garrick v. Lord Cam- den,(q) upon testamentary dispositions ; and in Watt v. Watt,(r) and Bailey v. Wright, (s) where the limitations to next of kin were contained in settlements. But this is only a primd facie construction which may be repelled by the contrary intention of a testator : accordingly Lord Eldon said in Garrick v. Lord Camden, "it was competent to and required from the Court to look through the whole will, and to see whether from the whole, an intention was manifested to include the wife among those who were to be taken more strictly as next of kin, a description primdfacie excluding her." His Lordship then proceed- ed to remark, that the words " to be divided as if I had died intes- tate," (omitting the words next of kin) might upon the whole admit or even authorize or require such a construction as to let in the widow. (t) Hence it follows that the same words in the wife's will, made under a power of similar words in a bequest to her, must also entitle the husband to a share .(w) 3. It may be considered settled, that a testator is to be under- stood to mean by the expression " next of kin," when he does not refer to the statute, or to a distribution of the property as if he had died intestate, those persons only who should be nearest of kin to him, to the exclusion of others who might happen to be within the degree limited by the statute. It is true that Phillips v. Garth,(x) determined by Bulkr, J ; is a decision in favour of all the next of kin, upon the principle that the words " next of kin" had received a technical signification by reference to the statute; so that every testator using them, must be understood to do so in the sense they fo) 1 Ventr. 425. Alleyn, 36. Styl. 74. Mascall's Digest, 61, a very useful little work, (fi) Cited 18 Ves. 53. (?) 14 Ves. 376, 381, 386. (r) 3 Ves. 244. (0 I 8 Ves - 49 - (0 14 Ves. 382. (u) See more fully upon these subjects, the law of " Husband and Wife," 1 Vol. 327, 2 Vol. 63. (x} 3 Bro. C. C. 64 SECT. VI.] Description of Legatees. 107 are used in a case of intestacy; but its authority was materially shaken by Lord Thurlow, before whom it was afterwards brought,(y) by Sir W. Grant in Smith v. Campbell,(z) . and by Lord Eldon in Garrick v. Lord Camden,(a) and the decision by Sir Thomas Plumer in Brandon v. Brandon, after noticed, appears to have over-ruled it. The bequest in Phillips v. Garth, was of a residue to the tes- tator's executors " to be equally divided by them among his next of kin, share and share alike." His nephews and nieces claimed the same shares per capita, with his surviving brothers ; and the decree was in their favour upon the principle before mentioned. Sir W. Grant, in allusion to the last case, and on the present subject expressed himself to the following effect, in pronouncing judgment in the case of Smith v. Campbell. " Even if the words were next of kin, yet if there was nothing to show, that the testator had reference to the Statute of Distributions, or to a division as in the case of intestacy, the inclination of my opinion would be, that the nearest in kindred only are entitled ; and that brothers and sisters would exclude nephews and nieces from participating in such a bequest. I know the contrary was determined by Buller, J. in Phillips v. Garth, a case which afterwards came before Lord Thur- low, but not upon that point; yet the inclination of his Lordship's opinion was so strong against that of Mr. Justice Buller, as to in- duce him to direct the cause to stand over in order that the brothers might have an opportunity of applying to re-hear the cause, but which was compromised. So in the case of Garrick v. Lord Cam- den, the Chancellor referring to Lord Thurlow's doubt, states his own also with regard to that decision of Mr. Justice Buller." This is a strong opinion that Phillips v. Garth, is erroneously de- cided ; an opinion which was acted upon by Sir Thomas Plumer in the case of Brandon v. Brandon,(b) before referred to ; and in which he determined that a surviving brother was entitled in exclusion of the children of a deceased sister, under the words " nearest and next of kin." But where the bequest is to a legatee (who happens to be nearest of kin to the testatrix) for life, and after his death, to the testatrix's next of kin, to be a vested interest in them at her death, the legatee for life, though nearest of kin, will be excluded, and the pefsons, next in degree, entitled. Thus in the recent case of Bird v. JVood,(c) the bequest was of certain funds to trustees in trust to pay the interest to the testatrix's daughter for her separate use for life; and after her decease, to the daughter's appointment by deed or will ; and in default of appoint- ment, for the testatrix's next of kin, to be considered a vested inte- rest from the testatrix's death except as to any child that might be afterwards born of her daughter. The daughter died without any child, and without executing any appointment. Her husband took out administration to her, and claimed the fund : but Sir John Leach, V. C. held, that the persons who, at the testatrix's death, would have (y) 3 Bro. C. C. 69. (z) 19 Ves. 404. (a) 14 Ves. 335. (6) 2 Wils. C. C. 14. (c) 2 Sim, & Stu. 400. 108 Description of Legatees. [Cn. II. been her next of kin, if her daughter had been then dead without children, were clearly intended. That the daughter could not be such next of kin; for. the persons intended were to take at her death; and must have been living at the death of the testatrix ; for their interests were then to be vested. 4. If a bequest to next of kin generally will entitle those only who are nearest relations in exclusion of others who are next of kin in the sense of the Statute of Distributions, it follows that nearest of kin will alone be entitled under a bequest to " next of kin in equal degree" Thus in Wimbles v. Pitcher,(d) the testator gave part of his real estate to his two nieces, one of them being the daughter of a sur- viving brother. He then bequeathed legacies to his brothers and their children, and to other nephews and neices, and the residue " to his next of kin in equal degree, share and share alike." Sir W. Grant held, that the surviving brothers were alone entitled ; nephews and nieces not being in equal degree with them, and therefore not answering the description. So also "in an Anonymous case,(c) Sir Thomas Plumer made a similar decree upon words of like import. The subject next proposed is ; SECT. VII. Legacies to " LEGAL PERSONAL REPRESENTA- TIVES," or (( PERSONAL REPRESENTATIVES." The legal construction of the words " personal representatives" or " legal personal representatives" is the executors or adminis- trators of the person described.(/) Consequently, if a legacy were given to A. and his personal, or legal personal, representatives, the absolute interest must vest in A. But if no bequest be made to A: and the limitation be to the personal, or legal personal, representa- tives of A. unexplained by any thing in the will, As executors or administrators would be entitled to it, not as representing A. or as part of his estate, or liable to his debts, but in their own rights as persona designate by the law.(g) This legal construction and ap- pointment only take place when testators have not manifested any intention in their wills to the contrary ; for if it appear from the dis- positions in the instrument, whether it be a deed or will, that those words were used in reference to other persons than executors or administrators, that intention will prevail. We shall consider, 1. Where the executors or administrators as personal, or legal personal, representatives, are entitled. In Evans v. Charles, under a bequest to the personal represen- tatives of a person then dead, the Court of Exchequer, at the head of which vf&sEyre, Ch. B. gave the property to the administratrix. The case seems to have been maturely considered, and must be held in great credit from his Lordship's acknowledged learning and talents. In Long v. Blackall,(h) Lord Rosslyn approved of it, ob- serving that the words were to be explained according to the sub- ject matter. (d) 12 Ves. 433. ( e ) i Mad. 36. m 5 Ves. 402. Price v. Strange, 6 Mad. 159. ( P-) See 2 Mad. 155. (A) 3 Ves. 486. SECT. VII.] Description of Legatees. 109 In the case just noticed of Evans v. Charks,(i) it appears that Mice Heath, as executrix and residuary legatee of her brother John, became a creditor of Charles Floyer, who after John's death com- pounded with Alice and the other creditors for ten shillings in the pound in full of their demands. Alice died before receipt of the com- position, having by will bequeathed her residuary estate among some of her relations, and appointed two executors, who died before Floy- er ; and the plaintiff, Mrs. Evans, was the legal personal represen- tative of the surviving executor, as also of Alice Heath. Floyer be- ing dead, his widow, Blanch, after the death of Mice, charged her property by will with the remaining ten shillings in the pound of her husband's debts which had been compounded for, directing the money to be paid to those creditors, " or their personal representa- tives." Of the share of this bequest coming to Alice Heath there were four sets of claimants : 1, the plaintiff Evans, as her administra- tratrix ; 2, her residuary legatees ; 3, her next of kin at her death, or their representatives ; and, 4, her next of kin living at the death of Blanch Floyer. The Court disposed of these claims as follows : First, that the plaintiff, as administratrix of Alice, was legally and beneficially entitled, unless any otlrer person could show a better right. Second- ly, that Alice's residuary legatees failed in doing so, because the fund was neither Alice's at the date of her will, nor at her death ; so, it never constituting part of her estate, could not have passed as such, if it had been expressly bequeathed to them, for want of in- terest in Alice ; consequently since her residury legatees could not have taken the money by direct bequest, much less could they do so upon the basis of an implied trust affecting the conscience of the plaintiff. And, thirdly and fourthly, that neither class of next of kin could make out a good title against the plaintiff, as that could only be effected by converting her into a trustee for them ; a con version impracticable in the present case ; because the money formed no part of Alice's estate at her death ; for in order to raise such a trust there must be property belonging to a testator at the time of his decease ; but in this instance, there was no such property belong- ing to Alice at her death upon which to found a constructive trust for her next of kin. It followed, therefore, and was determined, that the plaintiff, the legal representative of Alice, was the only per- son who could make a title to the legacy. The last case is an express decision, that where executors or ad- ministrators are entitled under a bequest " to the personal repre- sentatives" of a third person, they take the property by the descrip- tion aspersonee designate, beneficially, and not as part of the estate of the testator. And it must be remarked, that the subject matter in the preced- ing case was one among many sums of money bequeathed by Blanch Floyer to satisfy in full debts of her late husband, which had been compounded. The motive for the bequest therefore afforded no in- ference that Blanch, in using the words " personal representatives" of those creditors, meant any other than those answering the legal decription, viz. their executors or administrators. There was, there- fore, no ground upon which the Court of Exchequer could transfer (t) Anstr. 128. 110 Description of Legatees. [Cn. II. the legal right of Mrs. Evans to >any other person ; and it would seem that Lord Rosslyn referred to this circumstance, when he observed, that the words " personal representatives" were to be ex- plained according -to the subject matter ; upon the strength of which he reconciled the present case with that of Bridge v. Abbot, after stated. The construction which entitles executors or administrators merely because they answer the description of " personal representatives" in a legal sense, is discountenanced, as seldom, if ever, according with the intention of the testators. It is, therefore, only adopted from necessity, which appears from the case of Evans y. Charles, last stated j consequently, a court of equity will lay hold of any cir- cumstances to displace the legal title, and give the property to the next of kin of the person described, upon the principle that the intention of a testator is more likely to be executed in imputing his sense of '' personal representatives" to be descriptive of next of kin, than of mere executors or administrators. We shall therefore pro- ceed to consider, 2. When next of kin, and not executors or administrators, will be entitled under the description of " personal representatives," or " legal personal representatives. It is settled, that if an inference can be drawn from a will that a testator used the words " personal, or legafcpersonal, representa- tives" to designate individuals answering the description, though not in the legal sense of the terms, those persons will be entitled in preference to executors or administrators. Thus in Bridge v. Abbot,(k} Mary King bequeathed the residue of her estate to several persons equally ; but if any of them died be- fore her, she directed that the share or shares of him, her or them so dying should belong to his, her or their " legal representatives," and appointed Abbott and Webb executors. One of the questions was, who were entitled to the share of John Webb, a residuary lega- tee that died before the testatrix, the claimants being the executors, the residuary legatees, and the next of kin of John Webb 9 And Lord tflvanley determined in favour of the next kin of John, liv* ing at the death gf the testatrix. In order to reconcile that decision with the case of Evans v. Charles, before stated, it must be ascribed to some such impression as the following : that the testatrix being anxious to prevent a lapse by the death of any of her residuary legatees before herself, and that the legacies should at all events go to their respective/amides, could not mean by the term " personal representatives," executors or ad- ministrators of legatees so happening to die, persons casually repre- senting them, but their next of kin under the Statute of Distribu- tions. The Court of Exchequer, in the subsequent case ef Evans v. Charles, (in which the present was maturely considered) did not dis- pute the correctness of his Lordship's decision, but attributed it to his conviction (for the above reason as is presumed) that the tes- tatrix intended by the words " personal representatives," the in- dividuals answering that description under the statute, (that is) per- (*) 3 Bro. C. C, 224. approved by Lord Rosslyn in Long v. Btackall, 3 Ves. 486. SECT. VII.] Description of Legatees. Ill sons substituted in the place of others deceased; a construction that could not be resorted to in Evans v. Charles, since the next of kin were collaterals, and not claiming by substitution or representation. In Holloway v. Holloway,(l) Lord Alvanley adverted to those two cases, both of which he considered to have been properly determin- ed ; observing on the same occasion, that the words " personal re- presentatives," must have their legal meaning, (which is executors or administrators) unless clearly intended otherwise. The following case differs from the last two authorities, in ex- pressly referring to the Statute of Distributions, by adding to the words " personal representatives," the words " according to the course of administration,' 1 '' thereby pointing to the individuals en- titled under that statute, to have the fund divided among them in the event of intestacy ; a description, which it is presumed, would '.have been sufficient to explain the words " personal representa- tives" to mean next of kin,(w) had not the Court determined in their favour upon other circumstances of intention appearing in the will. The case alluded to, is Jennings v. Gallimore,(n) in which the tes- tator, Ambrose Gallimore, was empowered by settlement, in events which happened, to appoint 1000Z. by deed or will ; accordingly by his will, after reciting his power, he directed his trustees to pay the money " to his legal representatives according to the course of ad- ministration," in case his daughter Dorothy Turner should die with- out issue, a contingency which took place. Ambrose appointed two executors, one of whom was his nephew William, who was also his sole residuary legatee. William became a bankrupt, and his assig- nees claimed the money, or part of it, contending that the words " legal representatives" were to be construed executors of Ambrose. But Lord Alvanley was of opinion, that the next of kin were entitled upon the principle that Ambrose, if he had not intended by the ex- pression " legal representatives" other persons than his executors, would never have shown so much anxiety to execute his power, and dispose of the 1000Z. to persons by a description different from that by which he bequeathed his own property ; for it was to be supposed, that as the testator had given his own estate to his executor William, nominatim, he would have appointed to him the 1000Z. by the same name, if William ha.d been intended to take that sum. It must be noticed, that Lord Alvanley gave an extra-judicial opinion, that if the question had arisen upon the settlement (as might have happened if Ambrose had died intestate, without execut- ing his power, since by the deed the money was limited " to his legal representatives, according to the course of administration,") Ambrose's administrator would have been entitled irf preference to his next of kin. But his Lordship entertaining a doubt of that opinion, desired to be understood as not judicially putting any con- struction upon the deed. It cannot, however, be denied, that he thought these words were to receive different constructions when contained in a deed, and when in a will. No reason is given for such a difference ; and it is presumed, that where the intention of parties to a deed is clear upon the face of it, courts of law and equity will carry it into effect, where there is no want of expres- (0 5 Ves. 402. (m) 19 Ves. 404. (n) 3 Ves. 146. 112 Description of Legatees. [H. II. sions;(o) and a court of equity will even correct the instrument, if necessary, to give effect to such intention. (p) If then the words " personal representatives in the course of administration," be suffi- cient in a will (as before supposed) to designate relations described in the Statute of Distributions, there seems no reason why the same words appearing in a settlement, should not receive the like con- struction. Before proceeding to the consideration of the next authority, it seems expedient to remark the difference when the bequest is to the personal representatives of a stranger, and when to those of the tes- tator himself, as in the foregoing case. In the first instance, we have seen that the persons taking under the description, do so not only as persona designates, but also that they take the property in their own rights, discharged from the debts, &c. of their testator. In the second, however, it is otherwise, for since the subject be- queathed is the personal estate of the testator, to whose own per- sonal representatives he ultimately limits it r it follows that although the persons entitled under the description, whether they be execu- tors, administrators, or next of kin, may succeed to the property as persona designate, they nevertheless hold it subject to all the equities which it was liable to in consequence of belonging to the individual bequeathing it. After these observations, we shall pro- ceed to the next instance, where the title of the next of kin was pre- ferred to that of an executrix. In Long v. Blackall,(q) the testator bequeathed leasehold estates to his widow durante viduitate, remainder to his sons in succession, including a child en ventre sa mere, if a son, for life, remainder to their respective issue male, or descendants from issue male. And if all his sons died without leaving issue male or descendants from such issue, remainder upon the death of the last surviving son " to such persons as should then be the legal representatives" of the testator ; and he appointed his wife sole executrix. As the will originally stood, the ultimate limitation was in trust for the executors and ad- ministrators of his son Thomas, who was the first son named in the will ; but those words had been erased with a pen, and the expres- sions, " such persons as shall then be my legal representatives," were interlined. It was one of the questions whether, the widow, as execu- trix, or the testator's next of kin were entitled to the leaseholds ? And Lord Rosslyn determined in favour of the latter. It is very improbable that the testator intended his wife to take under the limitation to his legal representatives, njerely on account of her being executrix, because having named her in the commence- ment of his will, it might have been expected that he would have bequeathed to her the property, by the description of wife or of executrix, had he meant that she should succeed to it. And it is also observable, that the testator had appointed a period, that might have been very distant, for his legal representatives to take the property, viz. upon the death of his sons, without leaving issue male, or descendants from such issue. Whoever then answered the de- Co) Touchst. 86. et seq. 4 Maule & Selw. 433, 1 Ves. sen. 196. 18 Ves. 49. (/O 1 Ball Sc Beat, 253. 256. 260. (y) 3 Ves. 486. SECT. VII.] Description of Legatees. 113 scription of his legal representatives, were to have the estates. He could not therefore mean his executrix by these words, a person who, upon every reasonable calculation, might be supposed to be long previously dead. The latter was the ground upon which the Court founded its decree in favour of the next of kin. The last case seems to be an authority for considering that an executor or administrator will be excluded from taking beneficially, under the description of legal representative, personal estate ulti- mately limited by the testator to his legal representatives living at the failure of several prior dispositions of it; and upon the inference arising from the distance of time which may elapse before the event happens, that the testator meant by those words, other persons than his executor or administrator strictly answering the legal description. We have seen that the apparent intention of the testator has led to the construction of the words " personal" or " legal personal re- presentatives," in favour of the next of kin in preference to the exe- cutors or administrators. We proceed to observe, 3. That a similar reason has induced the Court of Chancery to construe the same words to mean, children, grand-children, &c. to the exclusion of those persons who technically answer the descrip- tion of " personal representatives." An instance of this kind occurred in the case of Horsepool v. Wat- son,(r) in which a fund was ordered to be distributed after the death of the survivor of two parents "among all their issue, child or chil- dren, male or female, and their representatives" equally. Lord Ross- lyn, after deciding that " issue" was explained by the words "child or children," declared that the expression "representatives" was also explained by the term " issue," to mean children, and descendants of deceased children ; his Lordship reading the will in this manner ; " among all the issue, child and children, male or female, and their representatives being issue" a word, as we have seen, comprehending ex vi termini descendants, however remote, from the persons de- scribed, (s) He therefore decreed in favour of the issue of a deceas- ed child in preference to its administrator. 4. As to the title of a husband or wife under a limitation to the personal" or " legal personal representatives" of each other. It has been shown in the fifth and sixth sections that neither hus- band nor wife regularly answers the description which would entitle either of them to take under a bequest to the relations, or to the next of .kin of the other ; but in order to include them in such limi- tations it must appear from the instruments, that they were in the contemplation of the settlors or testators, and intended by the de- scription as persona designate. In the present case, however, it is presumed, there is this difference, that if either be clothed with the character of executor or administrator of the other, the prima facie legal title attaches to the office, which will prevail unless an inten- tion to the contrary be expressed or clearly apparent in the instru- ment,^) and then if the words " personal representatives" be con- sidered synonimous with " next of kin," the husband or wife must be excluded, since neither of them, as before shown, answers that de- (r) 3 Ves. 383. and before stated, p. 90. (*) See sect 4. (0 See 14 Ves. 382. 18 Ves. 49. 3 Ves. 231-244. 1 Ves. sen. 84. 3 Atk. 758. VOL. I, P 114 Description of Legatees. [Cn. II. scription. But as this subject is discussed in the treatise of " the law of property arising from the relation of husband and wife,"(w) the reader is requested to refer to it. The subject next in order is : SECT. VIII. The construction of bequests when limited to "EXECUTORS and ADMINISTRATORS." If personal estate be given to B. his " executors and administra- tors," the law and the testator's intention concur in transferring to B. the absolute interest in the legacy,(x) so that if B. die before the testator the bequest will lapse, and cannot be claimed by the execu- tors or administrators of B. as will be shown in the eighth chapter which treats of lapsed legacies. And if an interest for life were given to B. with the ultimate limitation, after prior dispositions, or subject to his appointment, to the executors and administrators of B. it seems that the absolute interest would vest in him if he survived the testator, and his executors or administrators could not claim be- neficially by virtue of the express limitation to them ; the intention being that they should take the property to be distributed as part of JB's. estate, with which the law agrees, such a limitation of perso- nalty being analogous to a limitation of real property to the right heirs of a devisor. (y) But if no interest were given to B. and the bequest were to his executors and administrators, it should seem that the individuals answering the description would be beneficially entitled, as persona designate, in analogy to the devise of real estate to the heir of B. without a previous limitation to B. whose heir would take by purchase in his own right, and not by force of the word " heir" considered as a term of limitation. (z) Jl fortiori the con- struction must be the same when a testator, in addition to the gift to the executors and administrators, declares it to be " for their own use and benefit." Accordingly in Sanders v. Franks,(a) it was de- termined by Sir Thomas Plumer, that a limitation of personal estate to a widow, by her husband's will, for life, with a power of appoint- ment, and in default of such disposition " to her executors or admi- nistrators for their own use and benefit," did not vest the absolute interest in the property in the widow ; but that she had an estate for life only, with a power to dispose of the fund, upon the principle, that the executors and administrators took as purchasers, in their own rights, and not by representation. It was noticed in fifth and sixth sections, that neither husband nor wife is regularly entitled under a bequest to the relations or next of kin of the other ; but it would seem that if the ultimate limi- tation of personal property be made to the executors or administra- tors" of either of them, then if the husband or wife be invested with either of those characters, he or she will be entitled to the bequest, as answering the description in the instrument. (6) SECT. IX. Legacies to et DESCENDANTS." Attempts have been made to induce the Court of Chancery to put the same construction upon the word " descendants" as upon the (M) Ivpl. 326._ 2vol. 64-66. , (.r) 15_Ves. 537. 2 Mad. 155. 15 Ves. 537. . (z) 2 Madd. 155. (a)' Ibid, 147. and see "Law of Husband and Wife," 2 vol. 215, &c. 15 Ves. 537. SECT. X.] Description of Legatees. 115 term " relations," but the Court has constantly refused the applica- tion, since the principle which applies to the latter case does not apply to the former; for when a bequest is made to " relations" un- less the Court were guided by the Statute of Distributions in ascer- taining the legatees, the disposition would be void from the gene- rality and uncertainty of the term ; but when the word " descendants" is used, there is no necessity for resorting to the statute to fix or limit the objects of the bequest, as the natural import of the term is sufficient to include every individual proceeding from the stock or family referred to by the testator ; so that a legacy " to the de- scendants of jB." will comprehend all his children, grand-children, &c. Thus in Crossly v. Clare,(c) Mr. Ince devised his real estate to three persons for their lives, and the life of the survivor of them, with remainder " to the descendants of Francis Ince, now living in and about Seven Oaks in Kent, or thereafter living any where else, to be sold, and the money to be equally divided amongst them." He then gave 4000Z. " to the descendants" of Francis Ince, in the same words. Kindred in the second and third degrees were the claimants, as also one in the fourth degree, who was born after the date of the will. But Sir Thomas Clarke. M. R. decided against the latter, be- cause not in esse when the will was made ; and he determined that great grand-children were entitled with the grand-children to shares of the fund, since they answered the description of descendants of Francis Ince, and the distribution must have been per capita.(d) So also in Butler v. Stratton,(e) Mrs. Stratton devised her resi- duary real and personal estates to trustees, in trust to. sell the former, and divide the proceeds with his personal property " equally between the descendants of Thomas Fairbank, deceased." When the testa- trix died, Thomas Fairbank had three sons and eleven grand-chil- dren ; and Lord Thurlow determined that all Fairbanks descend- ants, as well grand-children as children, were entitled to the fund and per capita. We shall next proceed to consider, SECT. X. What persons may claim under the word " FAMILY." The word " family," when applied to personal property, is syno- nimous with " kindred" or " relations." If L it be^asked, of what family is #.*? the question will be answered in being informed from what person he is descended; and whoever is related by blood to that stock, is related to and of the family of J-L-(f) This being the ordinary acceptation of the word " family," it may nevertheless be confined to particular relations by the context of wills, or the term may be enlarged by it, so that the expression may in some cases mean children, or next of kin, and in others may even include re- lations by marriage. In discussing this subject, the first considera- tion will be that class of cases 1. Where the bequest is immediate and absolute. If a legacy be given to or for the benefit of " .#.' family," the word " family" may be so explained by the context of the will, as to (c) Ambl. 397. and see Pierson v. Garnet, 2 Bro. C. C. 38. 230. 5. P. () that an heir may take personal estate un- der the word " heir," as persona designates. If then the real and personal estates be so devised, that it appears to have been the tes- tator's meaning, that both of them should go and be enjoyed toge- ther, it is presumed, in analogy to the case of Gwynne\.Muddock,(q) that as the heir is legally entitled to the freehold estate, he will also be entitled to the personal. It appears from the foregoing observations, that when no inten- tion appears that the word " family" was meant to designate any particular class of individuals, the next of kin of the person descri- bed will be entitled ; a title depending upon the same principle which regulates a bequest to " relations" generally. (r) Since then, the word " family" is a synonimic, with the term " re- lations," it follows that bequests to " family" are to be contrued by (o) See Lord Ellenborough's observations in Doe v. Smith, 5 Maule & Selw. 131. \fi) Ante, sect, 3. p. 88. ( g) 14 Ves. 488. and see the sect, and page last referred to. (r) See ante, sect. 5. p. 92. 9 Ves. 319. 118 Description of Legatees. [Cn. II. the same rules that are to be applied to relations, not only as to the manner and proportions in which the family, *. e. next of kin, are to divide the property among them in compliance with, the terms of the will, but also in regard to the particular persons in the class of next of kin, who are to be preferred to others of the same class, in conse- quence of the descriptions in the bequests : these subjects are mi- nutely considered and detailed in the fifth section, treating of lega- cies to relations, to which the reader is referred. It has been noticed, that a legacy to relations does not regularly include those by marriage ;(*) and the principle of that exclusion equally applies when the bequest is to " family ;" but a contrary in- tention of a testator appearing from his testament, will alter the con- struction. Thus in the case of M'Leroth v. Bacon,(t) Mr. Lloyd bequeathed to Martha, youngest daughter of W. Rolfe, and wife of M'Leroth, 1000J. which he directed to be paid to her father Rolfe, for her benefit, to be settled by him to her separate use, and as a provision for herself, and for the benefit of her children, if Rolfe should think .proper and so direct ; or that the whole, or any part of it should be paid and applied " for the benefit of his said daughter and her family, but either immediately or in future, as Rolfe might think most useful and beneficial to her and her family, and as Rolfe should appoint ;" the testator empowering him at discretion, to direct the manner in which the legacy should be applied for the benefit of Martha and " her family ;" but if Rolfe died without having made such direction, the money was to be paid as Martha should appoint, " to be applied for the benefit of her and her family." Rolfe gave no effectual di- rection for the application of the money, and Martha, in exercise of the power, appointed by deed 800/. of the 1000J. to her husband absolutely, and the dividends of the residue she settled upon herself for life, remainder to her husband for life, with remainder as to the capital to her children, &c. To carry into effect that appointment, was the object of the suit by Martha and her husband ; and the question was, whether the appointment to him was authorized by the power 9 Lord Mvanley was of opinion in the affirmative, upon con- struction of the whole will, which enabled Rolfe, had he done so, to advance any part, or the whole immediately, or in any way he thought, under all circumstances, most beneficial for Martha and her family ; terms that would have authorized him to make an advance- ment for setting up the husband in trade. Such being the mean- ing and effect of the power given to Rolfe, his Honour conceived that his daughter Martha was intended to have similar authority and discretion, if her father omitted to exercise his own ; so that un- der those circumstances, her appointment to her husband was valid, as being within the terms of the power explained by the context of the will. With the last case we shall introduce the second class of authori- t\es,(viz] 2. Where the bequests were not immediate to the objects com- prised in the word " family," but were connected with a power of appointment. () Ante, p. 106. (0 5 Ves, 159. SECT. XL] Description of Legatees. 119 In treating upon the word " relations," it was shown that when a testator delegates to an individual a power to distribute a fund among such of his (the testator's) relations as he pleases, that person may, notwithstanding the Statute of Distributions, by which that term is in general construed, appoint to persons not comprehended within the Act ; and that if he make no appointment, a court of equity will distribute the property among the testator's next of kin living at the death of the donee of the power. (M) It is presumed, that the same rule is equally applicable, where the property is so given to the tes- tator's " family" and the word is to be construed synonimous to "re- lations." If then a testator give his residuary personal estate to " such of his family as A, shall appoint," or to A. for life, and afterwards " to such of A?s family as A. shall appoint," A. may appoint to relatives not within the Statute of Distributions ; or if he die without execut- ing his power, the Court of Chancery will divide the fund among the next of kin living at the death of A. To the cases referred to in note (w), that of Cruwys v. Colman,(x) may be added. There Dorothy Cruwys appointed her sister Bridget, sole executrix and residuary legatee ; desiriag that Bridget at her death, would be- queath " to those of her own family, what she had in her power ta dispose of, that was the testatrix's." Bridget made no such dispo- sition, and her nephew, who was her sole next of kin at her decease, claimed the whole residue in that character, in preference to the testatrix's next of kin living at her decease. Sir W. Grant decreed in favour of the nephew, as next of kin of Bridget; observing, that this was a trust for her next of kin, and so declared in the will ; and not for the next of kin of the testatrix ; but which made no difference is this case ; for that " where a power of selection was given in favour of a testator's own relations, and that power was not exercised, the property undisposed of, would go to the next of kin, at the death of the party who had the power. Therefore, even if this had been a trust for the testatrix's " family," it would have been for such as were next of kin at Bridget's death ; so either way the nephew was entitled to the whole of the property." But if ASs authority, instead of a power of selection, be confined merely to ascertaining the shares of such of the testator's " family" as could claim under the Statute of Distributions, and who would be the next of kin ; then if no appointment be made, or if made, should it be void by the nomination of relations not within the Statute, the testator's next of kin living at his death, would alone be entitled to the property, as being the -sole objects of the power.(7/) SECT. XL Legacy to " NEPHEWS AND NIECES." The reasoning in the cases stated in the eighth and ninth divisions of the second section of the present chapter, applies to bequests to nephews and nieces, and to which the reader is referred. In the case of Falkner \.Butler,("z) the testator directed the resi- due of his personal estate to be invested in the names of trustees, in trust for his wife for life ; and after her decease, the principal to be (M) See ante, sect. 5, p. 97, and the cases. f x) 9 Ves. 319, and see Wright v. Atkyns, Coop. 120. (y) See Poflev. Whitcombe, SMeriv. 689, stated aufira, p. 96. (2) Amb. 514. 120 Description of Legatees. [Cn. II. paid among such of his relations, sisters, nephews, and nieces, as his wife should by will appoint. The wife surviving the testator, by will appointed 7001. part of the funds, to George Olave, the testator's nephew in law, in trust for his children. Sir Thomas Sewell, M. R. was clearly of opinion that the power of appointment was confined to nephews and nieces, and could not be extended to great nephews and nieces. The recent case of Shelley v. Bryer,(a) is a stronger case to the same point ; inasmuch as there was there strong ground to argue, that at least one of the testator's great nieces was intended. In that case, the testator gave the produce of the sale of his resi- duary real and personal estate, after the death of his sister, Susannah Shelley, equally to be divided between his nephews and nieces who might then be living. By codicil, he gave to his infant niece, Har- riet Shelley, whom he had not then seen, the sum of 5001. over and above her share, after the decease of his sister, in the body of his will treated of more at large. Harriet Shelley, the infant legatee, was a great niece of the testator. At the time of the testator's death, he had several nephews, two great nephews, but no niece, nor any great niece, except the plain- tiff. Previously to Susannah Shelley's death, several great nephews and great nieces were born. It was contended that the plaintiff, though a great niece, must be included as being specifically named in the will. The great nephews and great nieces contended, they were entitled to be included as nephews and nieces, the testator having shown his meaning in the use of the words nephews and nieces, by calling Harry Shelley his niece, she being in fact, his great niece. For the nephews it was contended, that the cases de- ciding that the word " children" did not comprehend " grand-chil- dren," governed the present, and that the implication contended for, could not be allowed to enlarge the express meaning of the words used; and that it was only a mistaken recital of a legacy. Sir Tho- mas Plumer, M. R. concurred in the argument for the nephews, though he confessed there was difficulty on both sides ; but his Ho- nour thought it was better to abide by the terms which were express, than to take upon himself by inference, to enlarge them, either to let in the plaintiff or the other great nephews and nieces. SECT. XII. Legacies to " FIRST and SECOND COUSINS." Lord Kenyon,M.R. determined in the case ofMayott \.Mayott,(b) that under a bequest to all the testator's first and second cousins of the name of Mayott, first cousins of that name once removed, living at the testator's death, were entitled with' a first cousin of the same name. There appeared to be no person at the decease of the testa- tor of the name ofMayott, who was strictly the second cousin. SECT. XIII. Bequests to " GOVERNMENT." A legacy to government for the benefit of the public, is to be dis- posed of under the King's appointment by sign manuel. The Crown is to direct its application to a proper use. Accordingly in Newland v. Attorney General,(c) Abraham New- land bequeathed stock " to his Majesty's government in exoneration (a) 1 Jacob, 207. (d) 2 Bro. C. C. 125. ed. by Belt. (c) 3 Meriv. 684. SECT. XIV.] Description of Legatees. 121 of the national debt." Lord Eldon directed the fund to be trans- ferred to such person as the King should appoint under sign manual. SECT. XIV. Legacies to Servants. 1. In order to answer the description of servant so as to be in- cluded in a bequest " to servants," it seems essential that there should be a contract between the testator and. the claimant, out of which the relation of master and servant could arise, and also such an engagement as would entitle the master to the service of the in- dividual during the whole period, i. e. during each and every part of the time for which he contracted to serve. If, then, an individual were in the employ of a testator in consequence of an agreement be- tween the testator and another person, and the servant was not only in the employ of the testator, but also of the person contracted with; or if from the nature of the engagement and service, the person em- ployed could not be considered a servant in the usual acceptation of that word, he would not be entitled under a bequest to servants. The following cases will illustrate, the above observations. In Chilcotv. Bromley, (d) Mr. Bromley, after giving legacies to two of his servants, if in his service at his death, bequeathed to his " other servants" who should be living with him at that time, 50Z. apiece, and 101. each for mourning. He revoked the two latter legacies by a codicil, and gave " to all his other servants, in lieu thereof 500/. each, and 201. each for mourning." Under this bequest, the plaintiff, a coachman, who was provided for the testator by a job-master, to- gether with a carriage and horses in the usual course of business, claimed the legacies bequeathed to servants .by the codicil, and evi- dence produced on both sides (which was contradictory) was admit- ted to prove and disprove the plaintiff being servant to the testator in the usual acceptation of the term. Sir W. Grant decided, that the plaintiff was not a servant within the intent and meaning of the will. And in Townsend v. Windham,(e) the Duke ofBolton bequeathed a year's wages " to such of his servants as should be living with him at his death." The Court declared, that stewards of courts, and such other servants as were not obliged to pass their whole time in their master's service, were not servants within the meaning of the bequest; remarking at the same time, that it could not confine the terms of bequest to such servants only who lived at the testator's house, or had diet from him. 2. It is observable, that part of the description of the servant- legatees required, their being in the service of the testator at the time of his death; a circumstance which, in general, must be complied with. Still a servant may be considered by a testator as continuing in his employment, and be intended to take under the bequest, although he quitted the testator's house previously to his death. The evidence admissible in such case is, that the person was in reality in the service of the testator at his death, so as to answer the des- cription in the instrument ; and to establish which fact, declarations of the testator upon the subject cannot be rejected ; but testimony that the testator meant a servant, notwithstanding his having left the testator's service, to take a legacy bequeathed to servants only in his (rf) 12 Ves. 114. (0 2 Vern. 546. VOL. I. Q, 122 Description of Legatees. [Cn. II. employment at his death, cannot be received, as it is in direct op- position to the will.(/ ) All these points were discussed and settled in the case of Herbert v. Reid,(g) which was first determined by Sir W. Grant, and after- wards confirmed by Lord Eldon upon appeal. Robert Bretclijfbe- queathed to the plaintiff, Jane Herbert, " if in his service at the time of his death," a specific legacy of 5001. three per cent consols ; and he gave his residuary estate to his executors, Reid and Rogers. Jane quitted the testator's house a few days before his death ; yet she claimed the legacy, upon the ground that although she had left the dwelling of the testator, she did not leave his service, but was con- sidered by him as his servant up to the period of his decease. This was the fact established. Reid and Rogers (who were defendants) did not assert in their answers, that Jane, in leaving the testator's house, quitted his service, but confined their direct allegation to her leaving his dwelling. Jane produced three witnesses who proved declarations of the testator, that she was to return home again when he got better ; and that he had left her 500Z. by his will ; also that the testator, in conversation with one of them upon the question whether he should leave Jane's legacy weekly, or as he had left it by his will, resolved, upon the advice of the witness, not to alter his will. The result of this testimony, if admissible, proved that Jane, although out of the testator's house, was still considered by him to be in his service, and a legatee in his will. Upon such testimony, Sir W. Grant determined that Jane was entitled to the legacy, a decision approved of and confirmed by Lord Eldon ; and upon the following grounds : 1. That the evidence was admissible to prove that Jane was in the testator's service at his death ; justice requiring the reception of it, since no person except the master and servant could furnish evidence upon that fact ; and from necessity the master must explain quo animo he sent his servant from his house, viz. whether as putting an entire period to the relation between master and servant, or merely as suspending the performance of service : 2. That the evidence proved that Jane's departure from the house was only a suspension of her service : and lastly, that evidence would have been inadmissible to show the testa- tor's intention that Jane should have the legacy, notwithstanding she might not be in his employ as a servant in his house at the time of his death. Having now brought to a conclusion our review of the autho- rities fixing and establishing the construction of words referring to individuals in classes as to relations, &c. so far as relates to the persons answering those descriptions ; it will be -useful to collect the cases dispersed through the preceding sections in order to ascer- tain : SECT. XV. The different periods of time at which persons answering the descriptions of family, relations, next of kin, personal representatives, issue, heirs, and descendants, (to whom bequests were made by those terms generally, (/) 16 Ves, 486. 489. (5-) Ibid. 481. SECT. XV.] Description of Legatees. 123 and without discrimination) were required to be in esse, for the purpose of participating in the legatory fund. In the different classes of persons just enumerated, children are omitted, since the present subject, so far as it relates to them, has been minutely considered in the first section of this chapter ; to which, therefore, the attention of the reader is directed. Most of the rules, constructions, and distinctions there laid down and taken, are equally applicable to bequests made to persons by the words before enumerated. We shall proceed, as in the first section to consider, 1. When next of kin^ &c. living at the date of the will are solely and exclusively entitled. If the will express, or clearly show that a testator, in bequeathing to the relations, next of kin, or descendants of a deceased individual, referred to such of them as were in existence when the will was made, they only will be entitled ; as if the bequest was " I give lOOO/.to the descendants of the late A. B. now living," those descen- dants only in esse at the date of the will can claim the legacy. (h) 2. But, in general, a will begins to speak at the death of the tes- tator, and, consequently, in ordinary cases relations, next of kin, issue, descendants, &c. living at that period will alone divide the property bequeathed to them by those words. (i) Such is the gene- ral rule of construction when the legacy is immediate to relations, &c.(*) That rule will not be altered, although the fund be given to one .or more persons for life, previously to the limitation by the testator to his own relations, &c. If, then, he bequeath his residuary estate to his relations, or next of kin, after first limiting it to JB. for life ; next of kin living at the death of the testator, and not at the demise of B. will alone be entitled, and that construction will be adopted, although B. the tenant for life, may be one of the next of kin,(7) except a contrary intention appear from the will as after mentioned in this section. So also, if a general power of appointment had been given to B. and in the event of his not making any, remainder to the next of kin to the testator A. those next of kin only living at the death of A. will be entitled.(m) Or if the power had not been general, but restricted, to the ascer- taining of the shares of persons to whom the bequest was made by the word relations, &c. the testator's next of kin in esse at his de- cease would be exclusively entitled, and not the persons only an- swering the description of his next of kin, living at the death of B. (A) Crossly v. Clare, Ambl. 397. ante, p. 115. and see sect. 1. of this chapter, p. 45 to 52. (2) Vide sect. 1. pi. 2. p. 48. to 52. (k) Bridge v. Abbot, 3 Bro. C. C. 224. ante, p 110. Hollotvay v. Hollo-way, S Ves. 399. sufira, p. 85. Vaux v. Henderson, 1 Jac. & Wai. 388, note ; sujira, p. 85. (1) Rayner v. Moivbraii, 3 Bro. C. C. 235. Masters v. Hooher, 4 Bro. C. C. 207. Doe v. Laivson, 3 East, 278. Harrington \. Harte, 1 Cox. 131, and see the Master of the Rolls' observations in Jones v. Colbeck, 8 Ves. 38. See also Bird v. Wood, sufira; p. 107. OH) Seethe case last referred to. 124 Description of Legatees. [Cn. II. Suppose then the bequest be to relations, in such shares and pro- portions as B. shall appoint. If B. make no appointment,, the tes- tator's next of kin inesse at his, (the testator's) decease, will be sole- ly and exclusively entitled. (w) To the general rule before stated, the intention of testators or necessity, may create exceptions, which we will consider under the following head : 3. When relations, next of kin, &c. living at the death of a stran- ger, or a tenant for life of the property, will be entitled to it in ex- clusion of the representatives of those next of kin, surviving the tes- tator, but dying before the fund becomes distributable. (o) If a testator express, or his intention otherwise appear from his will, that a bequest to his relations, &c. living at the death of a per- son, or upon the happening of any other event, should take the fund his next of kin only in existence at the period described, will be en- titled, in exclusion of the representatives of such of them as happened to be then dead. An instance of this kind occurred in the case of Long v. 'Black- all,(p) before in part stated, where the testator gave lease-hold property upon death of his last surviving son, without leaving issue male, &c. (to whom he had limited the estates,) "to such persons as should thenbe his, (the testator's) legal representatives." The event happened upon which its last limitation was to take place ; and it was determined, that the testator's next of kin living at the death of the survivor of the sons, were entitled in exclusion of the personal representatives of persons, next of kin to the testator at his decease, who did not survive the son. . So if the testator delegate a power to a person to select and ap- point to his relations, &c. his residuary estate, and the donee omit to execute the- power, the next of kin of the testator living at the death of the donee, will be the only persons entitled to the proper- ty, (q) a necessary construction founded upon the circumstances of the case ; for since the persons to take, are uncertain, while the do- nee of the power lives without executing it, in consequence of their being dependent upon his will and pleasure, no' interest could vest in any of the testator's next of kin, prior to the execution of such power, or the death of the donee, a circumstance distinguishing the present case from that before mentioned, of the donee's power being limited to ascertaining the shares of the next of kin ; for the next of kin in existence at the testator's death, took vested interests, liable" only to be devested in regard to the proportions they were to take, if the donee should exercise his power. Suppose, then, a legacy to be thus bequeathed : " to such of my relations or family, as my wife in her discretion shall think proper to appoint by will, &c." If the widow make no appointment, or an invalid one, the testator's next of kin living at her death, will be the only persons entitled to the fund.(r) (n) Pope v. Whitcombe, 3 Meriv. 689. ante, p. 96, (o) See sect. 1. of this chapter, p. 59 to 62. 3 Ves. 486. ante, p. 112, ( ? ) See ante, sect 5. p. 98. (r) Crutoys v. Colman, 9 Ves, 325. Harding v. Glyn, 1 Atk. 469. -sufira, n. 300. Cole v. Wade, 15 Ves, 27. 43. ante, p. 99. SECT. XV.] Description of Legatees. 125 Or if such power be committed to more than one person, and it by any means become extinct during the lives of the donees, it should seem that as the testator's next of kin would take vested in- terests at that period, of the power becoming extinct, those then in existence would be the only persons who could make a title to the property.(s) It has been noticed, that although property were bequeathed to one or more persons for life, prior to the ultimate limitation by the testator to his own relations, yet his next of kin living at his death, would be entitled. But since the intention of a testator, is the lead- ing consideration in the construction of his will, if his meaning ap- pear in the context, to refer to relations, &c. at that period, when the fund is distributable, viz. upon the happening of an event to oc- cur after his decease, his next of kin in existence at that time,- and not when he died, will be solely and exclusively entitled to the be- quest.^) Accordingly, in Jones v. Colbeck,(u) Thomas Dawson bequeathed his residuary estate to trustees, to pay out of the interest an annuity of 201. to his brother, William Dawson, for life, and the surplus in- terest for the support and education of the children of his (the tes- tator's) daughter, Mary Overton, during the life of William, and after William's death, to pay the capital among such children equally, at twenty-one, with benefit of survivorship : but until Mary had a child or children, or if she survived them, or if she had none, the trustees were to pay to her (subject to the annuity) the interest for life to her separate use ; and after the death of Mary and of her children under twenty-one, he gave the residue- to be distributed " among his relations," in a due course of administration. Mary was the testator's only child, and sole next of kin living at his death ; but had she been then dead, his next of kin would have been cer- tain nephews and nieces (to whom he had given legacies by that description in his will,) and all of whoni died before Mary ; and she also died without issue, leaving great nephews and great nieces y children of the nephews and nieces before referred to, the only next of kin of the testator living at her (Mary's) death. The question was, what class of next kin was entitled '? If the testator's next of kin at his decease, Mary's personal representatives would be enti- tled unless she were excluded by taking the interest of the whole for life, under the will, as contended by the representatives of the ne- phews and nieces, who would have been the sole next of kin, if Mary had not survived the testator. But if the testator's next of kin living at the death of Mary were only entitled, then his grand nephews and grand nieces were those persons ; and -in whose favour Sir W. Grant determined upon- the apparent intention of the testator, to refer to relations not at his own death, but at that of Mary Overton. His Honour conceived that Mary could not possibly be meant by the terms "my relations," she being an only child, and the distribution of the fund directed to be made among relations ; and that had she been intended, the testator would have'given to her the residue in direct terms, and not by so strange and circuitous a phraseology. (s) Doyley v. Attorney General, 4 Vin. Abr. 485. pi. 16. (0 Marsh v. Marsh, 1 Bro. C. C. 293. ed. by Belt. (u) 8 Ves. 38. 126 Description of Legatees. [Cn. II. The representatives of Man/ being thus excluded, those of the nrphews and nieces could not be more successful ; for the testator supposed that Mart/ would, as she did, survive him, and he knew that she wa^ his nearest relation : so that had he intended his nephews and nieces to be substituted in Mary's place, as next to her in relation to himself, he would not have used an expression which necessarily included her, but would have given expressly to the nephews and nieces, all of whom were previously mentioned as legatees by that description ; and in addition to these remarks, the nephews and nieces did not answer the description of next of kin at the death of the testator, a character which was indispensable to their making a good title to the bequest. Under such circum- stances, the Master of the Rolls was of opinion, that the testator meant his relations, i. e. his next of kin in existence at the death of Mary; an intention which entitled the grand .nephews and grand nieces to the whole residue. His Honour remarking at the same time, that in the absence of such an intention referring to relations, at a period beyond the death of the testator, the case of Holloway v. Holloway,(x) was an authority that the mere gift of an interest for life to the daughter, would not have been sufficient to exclude her from taking the residue under the description, and in the cha- racter of sole next of kin of the testator living at his decease. The next subject of our consideration will be SECT. XVI. When the fund given to Legatees, by the description of "family/ 7 "relations," " next of kin, &c." is to be divided among thejn either per capita, or per stirpes, or both per stirpes et capita. Upon questions of this kind, the expressions in each will must be attended to ; for according as the distribution is directed by the tes- tator, so it must be made. We shall consider, 1. Instances in which the legatees will take per capita. When the bequest is to " relations," " family," &c. without mentioning the proportions in which the fund is to be divided, the Statute of Distributions^) will regulate the number and manner in which the legatees (who are next of kin) are to take the property. Suppose, then, a legacy to be given to the testator's relations generally. If his next of kin be related to him in equal degree, as brothers, there being no children of a deceased brother, the brothers will divide the fund among them in equal shares, i. e. per capita; each being entitled in his own right to an equal share. So it would be if all the brothers had died before the testator, one leaving two children, another three children, r himself for lifbj and after his death to pay 1001. to hisin- temled wife in lieu of dower and thirds, and then to apply the fund >rd ing to his appointment; but if he made none, in trust to dis- pose of the property unto and equally among the lawful " issue" of Ijim (H'orthing(on)." There was no issue of that marriage ; but Mr. fl'orthington left five children by a former wife, and died without, making any appointment. It also appeared that he left grand-chil- dren at his death, who claimed equal shares of the fund with the children. And Sir W. Grant declared the property to be divisible among all the children and grand-children, per capita. The rule of construction we have been considering as applicable to bequests made to " issue," " descendants," and " family," equally holds when legacies are given to persons in existence, and the " chil- dren" of others who are dead ; an instance of which occurred in the following case : In Butler v. Stratton,(h) Mrs. Stratton 'devised freehold houses to trustees, to sell and divide the produce equally between Robert Strat- ton, John Stratton, and the " chiWren" of Mary Patterson. Mary had three children living at the death of the testatrix ; and the question was, whether they should take per stirpes ? in which case the fund would be divisible into three parts, to one of which only the three children would be entitled ; or, whether, they should take per capita ? in which event, the" property would be divisible into ./we parts, and each child entitled to an equal share with the Strattons in its own right. And Lord Thurlow determined that the distribution was to be made per capita. So also in Blackler v. Webb,(i) Mr. Bagwell, having had several children, some of whom w r ere dead leaving children, bequeathed his residuary personal estate equally to his son Janies, and to liis son Peter's children, to his daughter Traverse, and to his daughter Webb's children, and to his daughter Mann. When the will was made, the testator's son Peter was dead, having left several children; the testator's daughter Webb was then living, and her husband being in needy circumstances, the testator made a -pro vision for her in his will, which he settled to her separate use. Under these circum- stances, the question was, whether the testator's children should take per capita or per stirpes? And it was determined by Lord King, that according to the true construction of the will, strengthen- ed by the fact of the daughter Webb's children being unable to take by representation, as their mother was living, the fund was to be dis- tributed among the children and grand-children per capita. We shall now consider, 2. When the legatees take per stirpes. In instances w T here, under a bequest to relations, &.c. those per- sons only who are next of kin are entitled, and the Statute of Dis- tributions is adopted, not only, to ascertain the persons to take, but also the proportions and manner in which the property is to be divi- ded ; the will being silent upon these subjects, if the next of kin of the person described be not related to him in equal degree, those (A) 3 Bro. C. C. 367. (i) 2 P. Will. 383. and see Weld v. Bradbury, 2 Vern. 705. SECT. XVI.] Description of Legatees. 129 most remote can only claim per stirpes; i. e. in right of the persons who would have been entitled under the statute if they had been living. Hence it appears that the taking per stirpes always pre-sup- poses an inequality of relationship. Suppose, then, a testator to bequeath a legacy to his " relations" or " next of kin," and that he left at his death two children, and three grand-ohildren, the children of a deceased child ; the grand- children would i take their parent's share ; i. e. one-third per stirpes under the statute, as representatives of their deceased parent. Thus in Stamp v. Cooke,(k] the testator bequeathed his residuary estate to his wife for life, and after her death, his executors were to divide the same among his next relations, as sisters, nephews and nieces. The testator left at his death three sisters, a child of a de- ceased brother, and a child of a deceased sister ; and one of the three sisters had two children living when the testator died, and who claim- ed shares in the fund, as answering the description of nephew and niece of the testator under the will. But Lord Kenyon, M. R. de- cided, first, that the testator's intention, that the residue should be divided otherwise than according to the statute, was not sufficiently clear, and therefore distribution should be made according to the act which excluded the two children of the living sister. And second, that by the statute the fund was divisible into five parts ; three of which belonged to the three sisters, and the remaining share to the two children of the deceased brother and sister, per stirpes. It is observable, in the last case, that there was nothing in the will, either as to the persons or the proportions in which they were to take, manifesting an intention in the testator to dispose of his pro- perty in a manner different from the statute j the Court, therefore, could not depart from the directions of the act, which declared that children of deceased brothers and sisters should take, per stirpes, the shares of their parents, where there were brothers and sisters in existence. In considering the distribution per capita, it was noticed that a bequest to relations or next of kin equally, or to descendants or : issue of.individuals generally, entitled in the first case the children of deceased brothers and sisters to take per capita with surviving brothers and sisters ; and that in the second case all descendants of the person described, viz. children, grand-children, &,c. were also entitled per capita. But although the bequest direct an equal dis- tribution, and notwithstanding the objects of bounty be described by the term " descendants," yet, if from other expressions in the will, it appears to have been the testator's intention that the descen- dants of deceased legatees should take by representation, i.e. per stirpes, such intention will prevail. An instance of this occurred in the following case : In Rowland v. Gorsuch,(l) Dr. Talbot made the following dispo- sition : " As to the residue of my fortune, I will and devise that the descendants of each of my first cousins deceased, partake in equal shares and proportions with my first cousins now alive." The ques- tion was between first cousins of the testator, and the descendants of first cousins who died before. And Lord Kenyon decided the fol- (*) 1 Cox. 235. (/) 2 Cox, 187. VOL. I. R 130 Description of Legatees. [Cn. II. lowing points : first, that the term " descendants" was explained by the word "representatives," and therefore embraced such descend- ants only of the first cousins, who died before the testator, as were their, next of kin at his decease ; and secondly, that they took per stirpes ; " for," said his Lordship, " if any person is under the neces- sity of making his claim as representative, he must take the share in the same manner as the person he represents." The remaining subject for consideration under the present section is 3. When legatees take both per stirpes and per capita. Where a testator bequeaths personal estate to several persons as tenants in common, with a declaration that upon all or any of their deaths before a particular time, their respective shares shall be equally divided among the issue or descendants of each of them, and they die before the arrival of the period, some leaving children, others children and great grand-children, and others grand-children, and more remote descendants; in such case the issue of each de- ceased person will take their parent's shares per stirpes; and such issue, whether children only, or children and grand children, &,c. will divide each parent's share among them equally per capita. Suppose, then, a person to devise the money to arise from the sale of his real estate to his three sisters and his niece, if they were living, at the failure of issue male of his son (to whom he devised the estate in tail male ;) but if they or any of them were then dead, their re- spective issue should be entitled to the shares of their parents in equal shares. Suppose also the three sisters to die before their bro- ther, who left no issue male, and that one sister had children, the second sister children and great grand-children, and the third sister grand-children only; the distribution would be per stirpes and per capita; for the children of the first sister would take her share per stirpes and per capita among themselves. The children and great grand-children of the second sister would take her share per stirpes and per capita among themselves, the children and great grand-chil- dren being entitled to equal shares ; and the grand-children of the third sister would take in the same manner as the children of the first. Such was the case of JVythe v. Blackman stated in a former page.(rn) The principle seems to be the following : that the testa- tor intended each parent a distinct share of his property if existing at the happening of the particular contingency; but if not, then that each of their shares should belong to their respective issue to whom it was given, as tenants in common ; and the word " issue" compre- hending all lineal descendants, entitled children, grand-children, (fee. without distinction. It was remarked, in considering bequests to children, that in ge- neral they must literally answer the description and character given of them by the will ; and it was also shown that the rule admits of Exception when the intention is clear that these children are not meant to be excluded, although in some particulars, they fail in an- swering the terms of the will. It is proposed now to consider : (m) 1 Ves. sen. 196, ante, p. 70. SECT. XVII.] Description of Legatees. 131 SECT. XVII. The effect of Mistakes in the names of Legatees generally. 1. When an error in, or the omission of, a name will be rectified by the description of the person, or the-context of the will. In Stockdale v. Bushby,(n] Thomas Stockdale bequeathed " to his namesake, Thomas Stockdale, the second son of his brother, John Stockdale," 1000J. when he attained twenty-one. John had no son of the name of Thomas, and his second son was called William, who claimed the legacy. And Sir W. Grant determined in his favour, upon the principle- that the mistake in the name was obviat- ed by the accurate description given of the person, viz. the second son of John Stockdale. The last decision accords with authorities which establish that, where the name has been mistaken, either in a will or deed, it will be corrected from the instrument, if the intention appear in the description of the legatee or donee, or in other parts of the will or deed. Thus lands were given to the mayor and chamberlain of Bartholo- mew's Hospital, who were incorporated by a different name, the devise was held good; and Weston, J. observed, that if lands were devised to A. " eldest son of J5." although his name be W. yet the devise to him was good, because there was sufficient cer- tainty ;(o) a dictum established by the last stated case of Stockdale v. Bushby. In conformity with this doctrine, we find Lord Coke stating in his Commentary upon Littleton,(p] that a wife is a good name of pur- chase without a Christian name, and that so it is if a Christian name be added and'mistaken, as Em for Emelyn, &c. for utile per inutile non vitiatur. Also, that if lands be given to Robert Earl of Pem- broke, where his name is Henry, or to George Bishop of Norwich, where his name is John, and so of an abbot ; for in these and the like cases there can be but one of that dignity or name, and, there- fore, such a grant is good, albeit the name of baptism be mistaken. Also in Pitcairne v. Brase,(q} the devise was to William Pitcairne, the eldest son of Charles Pitcairne, of Twickenham; the name of the eldest son was Andrew, yet that was held a good devise, the error in name being rectified by the description of the person. In the last case, although the second son had been named William, so that there would have been one person answering the name and another the description, still, if the context of the will afforded evi- dence that the error was merely in the name, it is presumed that the eldest son would have been entitled. Suppose then the estate to have been previously limited by the. testator to several persons in succession for life, with remainder to their first, second, and other sons successively in tail, remainder to Charles Pitcairne for life, then to his eldest son William for life, remainder to his first and other sons in tail, remainder to Andrew, second son of Charles for life, remainder to his first and other sons in tail, with remainder to J. A. third son of Charles, for life, &.c. Now although the name of () infra. 19 Ves. 381. Coop. 229, 5. C. and see Dowset v. Sweet, Ambl. 175, stated (o)SLeon, 18. (/O 3. a. (y) Finch's Rep. 403. 132 Description of Legatees. [Cr. II. the second son be William, and the name of the eldest be Andrew, it is conceived that the eldest son would be entitled to the estate, since it plainly appears from the context of the will to have been the intention of the testator, that the sons of each tenant for life should succeed according to priority of birth ; hence it is obvious, that his calling the eldest son of Charles by the name of William, was a mistake, which the contents of the will were sufficient to correct. When a bequest is made to a class of individuals nominatim, and the name or Christian name of one of them is omitted, and the name or Christian name of another is repeated ; if the context of the will show that the repetition of name was an error, and the name of the person omitted was intended to have been inserted, the mistake will be corrected. An instance of this occurred in Garth v. Meyrick.(r) There a testator gave his residuary estate to his six grand-children, by their Christian names. The name of Ann (one of them) was repeated, and that of Elizabeth (another of them) was omitted. The context of the will clearly showed the mistake which had occurred, and in con- sequence the Court rectified it, by admitting Elizabeth to an equal share in the bequest. The same result will follow, if the name of one in the class of le- gatees be totally omitted, and the mistake appear from the context of the will. Thus in Humphreys v. Humphreys,(s) the testator gave his re- siduary personal estate " to be divided equally among his seven chil- dren A., B., C., D., E. and F." (naming only six.) He had eight children at the date of his will, but it appeared from it that he con- sidered one of them as fully provided for by other means. And the Court decreed the seven other children to take the residue in equal shares ; the intention of the testator to include his seven children being apparent by the will, which not only showed, but corrected the omission of the name of one of them. Such is the rule of law applicable to mistakes in the names of legatees, when the ascertaining of the objects solely depends upon the context of the will; but in instances where such context is in- sufficient for the purpose, parol evidence will be admitted to prove the mistakes in the names or additions of the legatees, and to ascer- tain the person intended. Thus in the case before supposed, next after that ofPitcairne v. Erase, Andrew might prove that he was the ' person intended, and that the error was not in name, but description. The principle is this : that when it became necessary to apply the terms of the bequest to the object described, they were found not literally to apply ; as part of the description referred to one person and the remainder to another. Hence a latent ambiguity, not ap- parent on the will, was raised from that circumstance in regard to the individual meant by the testator, which- let in evidence to show that he was mistaken in the description, and to prove whom he in- tended for his legatee.(f) We shall therefore proceed, (O 1 Bro - C. C. 30. (,) 2 Cox, 186. (0 See Doe v. Huthwaite, 3 Barn. & Aid. 632-642. and the opinion of Lord Kenyon in Thomas v. Thomas, 6 Term Rep. 676. and infra, sect. 18. p. 140. SECT. XVII.] Description of Legatees. 133 2. To produce instances where the errors in naming legatees have been rectified by the admission of parol evidence. It has long been settled, that parol evidence is to be admitted to raise and remove latent ambiguities. An instance of a latent ambi- guity has been just given. It arises from the description in the will being made impossible or uncertain in application from collateral circumstances ; as where a bequest is made to a person by a wrong name, or by a Christian and surname, the former of which is appli- cable to two persons, evidence may be given to prove the error in description, and who was meant by the testator by the mistaken de- signation. The will shows that the testator intended a benefit to some person whom he had erroneously or defectively described ; an error or defect which is discovered in attempting to ascertain the ob- ject of his bounty, and dehors the will. Hence a presumption arises of the testator being mistaken in naming the legatee ; and to rectify that error evidence is admissible. (M) Thus in Masters v. Masters,(x) the testatrix gave 200Z. to Mrs. Sawyer. There was no such person ever known to the testatrix ; but it was alleged that she meant a " Mrs. Swapper" And the Court directed the Master to inquire whom the testatrix meant by " Mrs. Sawyer," and whether Mrs. Swapper was not intended ; and if he found that she was that person, then she was to receive her legacy in proportion with the other legatees, the case being one of abatement. So in Beaumont v. Fell,(y) A. bequeathed 500Z. to Catharine Earnley; the person's name who claimed the legacy was Gertrude Yardley,3Lnd it was admitted that no person named Catharine Earn- ley set up any right to the legacy ; but it appeared in evidence that the testator's voice 'when he made his will was very low, and hardly intelligible; that he usually called the presumed legatee Gatty, which the scrivener, who took instructions for drawing the will, might have easily mistaken for Katy; and that the scrivener, not having clearly understood who the legatee of 500Z. was, or what was her name, the testator directed him to J. S. and his wife to inform him further upon the subject, who afterwards declared that Gertrude Yardley was the person intended. It was also in proof, that the tes- tator had declared in his life-time, that he would do well for Ger- trude by his will. And the Master of the Rolls decreed that the legacy to Gertrude Yardley, though by the description of Catharine Earnley was valid, observing, that " the name, and not the person, was mistaken ; and that it was very material there was no such per- son as Catharine Earnley who claimed the legacy, which, with the proofs of the testator speaking in a very low voice when he made his will, and of his having usually called the plaintiff Gatty instead of Gertrude, and often declared he would do well for her, was suffi- cient to entitle her to the legacy." If then, as we have seen, parol evidence be admissible to ascer- tain the legatee when he is described by a wrong Christian and sur- name, it follows that such testimony is equally so, where his chris- (u) (y) 2 P. Will. 137. Rfver'a case, 1 Atk. 410. (*) 1 P. Will. 421--425. 2 P. Will, 140. 134 Description of Legatees. [Cn. II. tian name only is mistaken, or to ascertain his identity when there are two persons in the family of the legatee of the same Christian name. As if a legacy was given to John Thomas, son of William Thomas, of, &c. ; and William had two sons named John, it is neces- >arv and proper to ascertain by parol evidence which of the two persons was intended by the testator.(z) With respect to mistakes in the baptismal name of the legatee, an instance of such a mistake being rectified by similar species of testimony, occurred in the fol- lowing case : In Smith v. Coney,(a} the bequest was of 500Z. to " the Rev. Charles Smith of Stapleford Tawney, in the county of Essex, clerk." The legacy was claimed by the Rev. Richard Smith, upon evidence that there was no person answering the description of the legatee, according to the will ; and that he, Richard, was, at the date of it, incumbent of Stapleford Tawney, and well known to the testatrix, who had a great regard for him. His claim was resisted by the executor, who set up another person as the intended legatee that died before the testatrix. The suit was not instituted until many years after the death of the testatrix, and six years after the death of a lady who lived with her in great intimacy, and who, it was "suggested, knew her intentions, an objection which was ob- viated by the consent of the parties. And upon Lord Alvanley ex- pressing an opinion in favour of Richard Smith, the executor with- drew his gpposition and the claimant obtained a decree. So in Dowset v. Sweet, (b) 100L was bequeathed to "John and Benedict, sons of John Sweet "'who had two sons only, James and Benedict ; and it being proved that the testator was accustomed to call James by the name of Jacky, he was declared to be entitled, and the court was of opinion that if 'the evidence had only raised the ambiguity resulting from the father having no son called John, the description in the will would have rectified the error in name. SECT. XVIII. The effect of mistakes in the descriptions of Legatees, and the admission of parol Evidence in those cases. 1. It may be considered as a settled rule upon this subject, that where the description of .a legatee is erroneous, the error not occa- sioned by any fraud practised upon the testator, and there is no doubt as to the person who was intended to be described, the mis- take will not disappoint the bequest. Hence, if a legacy be given to a person by a correct name, but with a wrong description or ad- dition, the mistaken description will not vitiate the bequest, but be rejected ; for it is a maxim that veritas nominis tollit errorem demon- strationis.(c.} Thus in Standen v. Standen,(d) Charles Millar bequeathed 200Z. to trustees, in trust, " to place Charles Millar Standen and Caroline Eliz Standen, legitimate son and daughter of Charles Standen, now residing with a company of players," apprentices, as the trustees should think fit. The testator then directed his real estate to be (r) C/ieyney's case, 5 Rep. 68. b. (a) 6 Ves. 42. and see Doe v. Danvers, 7 East, 302-3. () Ambl. 175. (0 Lord Hacon's max. reg. 25. (a) 2 Ves. jun. 589. Dare v. Geary, cited Ambl. 375. S, P. SECT. XVIII.] Description of Legatees. 135 sold, and gave the money, with the residue of his personal estate, in trust for his wife for life, and after her death, as to one moiety for such person or persons as she should by deed or will appoint, and which she afterwards disposed of by will ; and as to the other moiety, in trust for Charles Millar Standen and Caroline Eliz Standen, legitimate son and daughter of Charles Standen," equally, with survivorship between them, if either died before twenty-one or marriage, with a further limitation if both of them died before the arrival of either of those periods. It appeared that Charles Millar Standen and Caroline Eliz Standen were illegitimate children, and one of the questions was, whether they could take under the wrong description of legitimate children ? It was contended for them, that an inaccurate description of a legatee would not destroy the effect of a legacy given to him nominatim, therefore they were en- titled to the benefit of the 200Z. and the moiety over which the widow had no power of appointment. And the Lord Chancellor was of the same opinion, and decreed accordingly. Upon similar reasoning, Lord MvanUy's observations in Kennell v. Abbott,(e) appear to be founded. He said, that where a person was supposed to be a child of the testator, and from motives of love and affection to the child, conceiving it to be his own, he had given it a legacy, and it afterwards turned out that he was imposed upon, the child not being his own, his Honour was not disposed to deter- mine that the provision for the child would totally fail ; for circum- stances of personal affection to the legatee might be blended with the gift, which might entitle the child, although he might not answer the character in which the legacy was given. Lord Jllv&nley put another case, and said, he- would not have it understood that if a testator, in consequence of supposed affection- ate conduct of his wife, gave her a legacy as to his chaste wife, evi- dence of violation of her marriage vow could be given for the pur- pose of defeating the bequest, since that would open too wide a field. And it was said in argument, in the case of Brett v. Rigden,(f) that if a bequest were made to the wife of /. S. and J. S. afterwards died, whose widow thereupon married J. D. and then the testator died, the wife of/. D. would be entitled to the legacy, although she was not the wife of J. S. at the time the will took effect, and there- fore did not answer the description at that period. In Smith v. Campbell,(g) the testator, being resident in India, be- queathed the residue of his property amongst his nearest surviving relations " in my native country Ireland." When the testator died, his brother and two sisters resided in Ireland, and other two sisters lived in America. The question was, whether,, as the two latter sis- ters were not resident in Ireland, they were not excluded from par- ticipating in the bequest ; but Sir William Grant, M. R. determined in their favour, upon the principle that the words " in my native country Ireland," did not make part of the description which the relations were intended to answer to entitle them under the bequest, but were merely descriptive of the place in which the testator sup- posed his relatives to reside, in which case it was immaterial whe- ther the testator had or had not correctly described the place of (0 4 Ves. 808. (/") Plowd. 344. (g-) 19 Ves. 400-405, 136 Description of Legatees. [Cn. II. residence of those who were sufficiently ascertained by the denomi- nation " nearest surviving relations." In the cases last stated, the intentions of testators were presumed in favour of the legatees, although they did not literally answer the description annexed to the names ; but 2. Wherever a legacy is given to a person under a particular de- scription and character, which he himself has falsely assumed ; or where a testator, induced by the false representations of third persons to regard the legatee in a relationship which claims his bounty, bequeaths him a legacy by a description according with such sup- posed relationship, and no other motive for such bounty can be sup- posed, the law will not, in either case, permit the legatee to avail himself of the description, and therefore he cannot demand his legacy. The following cases will explain this proposition : In Kennell v. Mbott,(h) Mrs. Hickman, under a power contained in articles made between her and Mr. Lovell, prior to their supposed marriage, made the following testamentary appointment, " to my husband, the said Edward Lovell, the sum of 150Z." Mr. Lovell at the time of this fraudulent marriage, was the husband of another woman, and upon a question whether he was entitled to the legacy, Lord Jllvanley, M. R. determined in the negative, in consequence of the fraud practised upon the testatrix by Mr. Lovett, observing, that upon general principles it would be a violation of every rule which ought to prevail as to the intention of a deceased person, if he per- mitted a man, availing himself of the character of husband of the testatrix, which he falsely assumed, and to whom in that character a legacy was given, to take any part of the estate of the person whom he so grossly abused, and who must be taken to have acfed upon the duty imposed upon her (the testatrix) in that her relative character. The principle of the last case is to be found in the civil law, as appears from a passage in the Digest referred to by the Court ; "falsam causam legata non obesse verius est, quia ratio legandi legato non cohceret : sed plerumque doli exceptio locum habebit, si probetur alias legaturus nonfuisse.(i] The principle contained in this pas- sage, ought (observed Lord Mvardey] to govern courts of justice, and which he considered to have been adopted in ex parte Wallop,(k) a case (said his Lordship) that took up so much time before the Lords Commissioners, upon an application for a writ de ventre inspi- ciendo against a woman, who had lived with Mr. Fellowes, and had made him believe she had been brought to bed of several children ; which he was weak enough to suppose his own. It was not a ques- tion, whether they were his children ; for if so, his Lordship did not apprehend the decree should have been such as it was. But there were no such children. She had shown him children as her's, which were not so ; and he gave legacies to them, as her children by him. It was held, that they were not entitled. There two things were wanting. The testator was not merely deceived as to their being his children ; but he was deceived as to the other ingredient of the character, in which he gave them the legacies ; for they were not the children of that woman. In the two cases last stated, the mistakes under which the testa- (A) 4 Ves. 802. 0) Book xxxv. tit. I. C. 72. v. 6. () 4 Bro. C. C. 90. SECT. XVIII. ] Description of Legatees^ 137 tors laboured, originated in their being grossly deceived and imposed upon. The description and character of the legatees were of the essence of the bequests, and it was a reasonable presumption that if the testator had known the real situations of the legatees 1 , they would not have been objects of their bounty. These authorities are quite consistent with the cases before mentioned, where the errors in de- scription were determined not to vitiate the legacies, as not being essential, and on the. presumption that personal affection might have been ingredients in the bequests, which would not have induced the testators to withhold their bounty, had they been acquainted with all the circumstances of each case, a presumption which could not ra- tionally be made in either of the cases last stated. 3. The same principle which has established the ad'missibility of parol evidence to correct errors in naming legatees, authorizes its allowance to rectify mistakes in- the description of them. This evi- dence may be required either partially, i. e. merely to raise a latent ambiguity, to be removed by the terms of the will ; or it may be wholly necessary, viz. to raise the ambiguity, and then to show and rectify the mistake. An example of the first proposition may occur, where a testator having two children, Mary and Ann, the former married, and the latter single, gave a legacy " to his three grand- .children, the children of Ann" Proof of the different circumstan- ces of the two daughters at the date' of the will, would be admitted to raise the latent ambiguity from the discrepancy between the de- scription and the objects, and then the will would be sufficient to show the mistake in naming- Ann instead of Mary, and to authorize a correction of the error. An instance of the second proposition may happen, where a bequest is made by a person- " to the children of his brother Samuel," when in truth the testator never had a bro- ther of that name, but left several brothers, each of them having chil- dren. In this case, parol evidence is necessary and admissible, not only to raise the latent ambiguity before mentioned, but also to show the mistake in description and to rectify it, by demonstrating what class of children were intended by the testator, under the erroneous description of " children of his brother Samuel." In support of these remarks, the following authorities are pro-? duced : In Bradwin v. Harpur,(l] Mrs. Jackson bequeathed the interest of a sixth part of her residuary estate to her niece Mary Bradwin for life, and after her death a moiety of the capital " to the said Mary Bradwin 's grand-children? the children of her .daughter Mary" at their ages of twenty-one.; and the remaining moiety she gave to Ann, the daughter of her said niece, Mary Bradwin. The niece Mary had two children ; Mary, one of the plaintiffs, who was never married, and Ann who was married, but died before the testatrix, and previously to the date of the will, leaving two children, William and Robert Barnes, the other plaintiffs. After the death of the niece, the suit was instituted, praying that one moiety of the sixth part of the residue might be paid to the plaintiff Mary, and the other half to the two Barnes's upon their attaining twenty-one ; on the (/) Ambl. 374, VOL. r. S 138 Description of Legatees. [Cn. II. ground that the testatrix so intended, but by a mistake of names had given a moiety to the children of Mary, who was never married, and the other moiety to ./inn, who was dead -at the time of the will, leaving the children who were plaintiffs in that suit. It was in evi- dence that the testatrix was eighty years old when she made her will, and lived in Derbyshire, and that Mary Bradwin, the niece, and her family, lived at St. Mbarfs in Hertfordshire, and that the testatrix had never seen her niece's children or grand-children. And the Master of the Rolls was satisfied of the mistake, and the power df the Court to set it right by decreeing according to the intention ; and after an objection for a want of parties had been removed, the property in dispute, being of small amount, and the plaintiff Mary, a pauper, his Honour decreed the money to be paid. Mr. Ambler properly observed, in a note to the last case, that the former par.t of -the description " grand-children and daughter" was of itself sufficient to correct the mistake ; i. e. without further aid from external evidence, than to show the error discoverable from the application of the description to the objects. So in Parsons v. Parsons,(m) the. testator created a trust to pay an annuity to his brother Edward Parsons for life, and after his death to go equally among his children by his then present wife. At the date of the will, the testator had no brother living except Samuel Parsons, who had a wife and children, but four or five years before, he had a brother named Edward Parsons, though he and his wife were dead when the will was made, and other legacies were given by it to his children. The testatpr had been in the habit of calling his brother Samuel, by the name of. Edward and Ned. The bill was filed by-the children of Samuel, and upon these circum- stances, which were proved and admitted, the only question was, whether the testator intended his brother Samuel, when he named bis brother Edward. And the Lord Chancellor^ under the above cir- cumstances, decreedj without argument, an account according to the prayer of the bill. Upon the principal of these two cases, a very modern authority seems to have been founded. In Careless v. Careless,(n) the testa- tor gave 500/. "to Robert Careless his nephew., the son of Joseph Careless." The testator had two brothers called John and Thomas Careless, eaeh of whom had a son named Robert, but he had no brother of the name of Joseph. His freehold estate he devised, if he left no child, to his brother John, and 2000Z. stock to his (the testator's) wife for life ; upon whose death the principal was to be divided into two parts, one of which was to be in trust for the chil- dren of his brother Thomas, and the ot,her for the children of his late sister Eliz Hemmings. He then devised his copyhold and leasehold estates to his wife for life, remainder-to his nephew Robert Careless in tail, remainder to his brother John, his heirs, &c. ; de- claring that if his nephew Robert died under twenty-one without leaving issue, the leasehold was absolutely to go to his brother John Careless. After these bequests, the testator gave his bond debts to his wife for life, and then to his nephew Robert Careless, " the son of John Careless," who claimed the legacy of 500L in which he was (ni) 1 Ves. jun. 266. (n) 1 Meriv. 384. SECT. XVIII.] Description of Legatees. 139- opposed by Robert, the son of Thomas. The first named Robert founded his claim upon intimacy between him and the testator, and his being treated by the testator with the greatest affection ; while the second named Robert lived at a distance from the testator, and was almost unknown to him. These facts were established in evi- dence ; and Sir W. Grant, M. R. after declaring the admissibility of the evidence, determined in favour of Robert the son of John. The observation of Mr. tfmbler on the case of Bradwin \. Harpur, seems applicable to the last ; for when the latent error in description was made apparent by the evidence of the state of the testator's family, the manner in which hd disposed of his property, and par- ticularly of his copyhold and leasehold estates, together with his bond bebts, appears to afford sufficient evidence of intention that Robert, the son of John, was meant and that the description of him as the son of Joseph, a, nonentity, was a mere slip of the pen. In the last two cases the evidence of the state of the testator's family, when applied to the descriptions, was competent to raise a latent ambiguity in the wills, a circumstance necessary to be attend- ed to ; for if facts given in evidence, instead of raising an ambiguity, be consistent with the description in a will, and consequently raise no presumption of a mistake made by the testator in particularizing the legatee, direct evidence of his having committed such an error cannot be received ; for if such were not the rule, -the effect would Be to revoke part of a written instrument by parol, a result forbid- den by the Statute- of Frauds.(o) An example will illustrate these remarks : Suppose a legacy were given by Richard Styles "to his brother Thomas Styles, and to John Styles, his brother's son;" and the testator had other" brothers, each of whom had a son named John Styles, one of whom claimed the legacy bequeathed to John Styles in the will, as the person intended by the -testator, upon parol decla- rations to that effect, which he was able to substantiate. TJliat evi- dence could not be received if foilhded upon proof of no other facts, than that the testator had other brothers besides Thomas, who had each a son named John; for such circumstances being quite consis- tent with the will, raise no ambiguity in it, and consequently no pre- sumption of error in the description ; so that the legal construction of the devise being in favour of John, the son of Thomas Styles, his title must prevail. Such in effect is the case of Doe v. Westlake.(p) But supposing a latent ambiguity' to be well raised, 4. If neither the will, nor extrinsic evidence is sufficient to dis- pel the ambiguity arising from the attempt to apply the description of the legatee to the person intended by the testator, the legacy must fail, from the uncertainty of its object. Suppose, then, a legacy to be given iv Jinn James, of B. in the parish C. by the de- scription of " grand-daughter" of the testator, when in fact Ann was his great grand-daughter, and neither of B. nor in the parish of C. but Jane James, though not answering in name, Was the testator's grand-daughter, resident at B. in the parish of C.; now unless it were in proof that the testator mistook the name of Jinn for that of Jane, or that -he mistook the description of Jinn, the bequest (o) 29 Char. II. c. 3. (ft) 4 Bam. & Aid. 57. 140 Description of Legatees. [Cn. II. would be void for uncertainty. It was settled in the case next stated, that evidence of mistake in the name is admissible in this instance, and it was the opinion of Lord Kenyan, that error in the description might also have been shown by parol declarations of the testator, if made at the time of the will ; and this seems very reasonable ; for if parol evidence be. .admitted to raise an ambiguity, and correct a mistake alleged to exist in one part of the description, it seems but fair that it ought to be received, to show that the mistake was in the other. And with respect to the rejection of parol declarations of a testator, because they were not made at the date of the will, it seems ta be now settled, that all conversations and declarations of testators, will be received where parol evidence is admissible, whether made before, at the time, or after the making of their wills, but with dif- ferent degrees of weight and credit.^) The following case is pro- duced in support of what has been stated, except as to the admission of parol declarations of testators made before or after the dates of their wills. In Thomas v. Thoi)Kis,(r] the testator devised to his "grand- daughter, Mary Thomas, of Llechtloyd, in Merthyr parish," the re- verson of his house in Water-street, in the borough Caermarthen, At the time of his death he had a grand-daughter named Elinor Evans, (one of the lessors of the plaintiff) who lived at Llechlloyd, in .Merthyr parish, and a great grand-daughter, named Mary Tho- mas (the defendant) who was the 'only person of that name in the family, and lived at Greencastle, -in the parish -of Llangain, some miles distant from Merthyr parish ; in which latter parish she had never been during her life. In an ejectment tried at the assizes for Hereford, the plaintiff's counsel proposed, and was permitted to give parol evidence of a mistake in the name of the devisee, the effect of which was, that when the drawer of the will read it over to the de- visor, the latter observed, there was a mistake in the name of the devisee.; to which the drawer in answer said, he would rectify it; and the former replied, that there was no necessity, since the place of abode and parish would be sufficient^ but the jury, being of opinion that there was no such mistake, found a verdict for the defendant on the first count, which laid the demise from Elinor Evans and her hus- band. The claim of Elinor, as the intended devisee, being disposed of, the question' was between the plaintiff claiming under the testator's co-heirs and Mary Thomas, as the supposed devisee, whose counsel offered evidence of declarations made by the devisor prior to making his will, expressive of regard for his great grand-daughter, the de- fendant, and of his intention to give her the Star, in Water street. This evidence was rejected upon the principle, that it was inadmis- sible to show whom the testator meant, as that intention was only to be collected from the will. And although the Court of King's Bench declared that the evi- dence was properly rejected, yet it did not do so on the ground upon which it was first refused, but because it consisted of declarations by the devisor long before the date. of his will ; Lord Kenyon expres- ly stating, that had they been made at the time of the will, he should (?) Per Lord Eldon, in Trimmer v. aync,7~Ves. 508. and see ante, p. 137. (r) 6 Term Rep. 671. SECT. XVIII.] Description of Legatees. 141 have thought them admissible in evidence as was noticed in the in- troductory observations to the case.(s) The decision of the Court, therefore, rested upon the sufficiency of the will to remove the am- biguity which had been raised by extrinsic evidence of the circum- stances of the testator's family; but as the context was unable to dispel the obscurity, and parol evidence, which might have had the effect, was rejected on account of its not being 'con temporary with the will, the Court was under the necessity of declaring the devise to be void for uncertainty, Lord Kenyon justly observing, that as Mary Thomas, the person named, was neither grand-daughter of the devisor, nor resided in the place and parish described, but Elinor Evans, who was not naYned, was the testator's grand-daughter, and lived in the place and parish mentioned in the will, certainty as to the person of the devisee could not be attained, and consequently the heir of the devisor was entitled. The last Case, therefore, does not appear to be' an authority that parol evidence is inadmissible to ascertain the person of the devisee, when a correct name is followed by 'a false description, applicable to another person pf the family, but of a different narrfe. It is, however, an instance of latent ambiguity in a will, raised by extrinsic evidence, introducing such a degree of uncertainty in the testator's intention, as to disappoint the devise, in consequence of the will and the evidence being insufficient to ascertain the intend- ed object of his bounty. But, 5. When the parol evidence is sufficient' to raise a latent ambi- guity in the description of the legatees, which, without its production, would have entitled them to the money as answering, the terms of the bequest; in such a case^as the existence of any mistake is pro- blematical, unless the evidence clearly show error in the description, and that other persons were meant by the test-ator instead of those described, it will be insufficient to substitute the claimants in the places of those answering the description. ' And that such evidence is admissible, appears from the two cases after stated.(J) Suppose, then, a bequest to be made to the children of a particular .person by his baptismal name, but which he had changed prior to the date of the will ; or to the children of a person as in existence, who happen- ed to be then dead; although parol testimony be admissible to show those facts, yet as they may have been unknown to the testator, and therefore afford no clear evidence of his intention to benefit the children of any other person than of him described, evidence of mis- take in the testator in describing the parent of the legatees so as to entitle children of another person riot mentioned on the ground that his name was intended instead of that inserted in the will, must be strong and relevant, or the children .of the person described will be entitled to the legacy. Accordingly in Delmare\. Robello,(u] a testator bequeathed the interest of his residuary estate in trust for all the children of his two sisters Reyne and Estrilla. Reyne was never married, and prior to the will she became a convert from the Jewish to the Roman Ca- (&} See preceding .page. (t) Also see Sir John Strange's observations. 2 Ves. sen. 217. () 3 Bro. C. C. 446. 1 Ves. jun. 412. S. C. 142 Description of Legatees. [Cn. II. tholic religion, also a professed nun, was baptized by the name -of Maria, and lived at Genoa. In addition to Reyne and Estrilla, the testator had another sister named Rebecca, and both she and Estrilla were married, and resided at Leghoi'n. Rebecca had several chil- dren who claimed by the will the interest bequeathed to the children of Reyne, upon the ground that the latter name was inserted by mis- take for that of Rebecca. And" iri support of the claim they offered parol evidence of the circumstances of the family, as also of decla- rations by the testator that he intended to provide for the children of his sisters at Leghorn. The introduction of this evidence' was resisted, yet Lord Thurloiv, not only permitted if to be read, but pronounced his decree upon the effect of it', declaring that in his opinion it was not sufficient to induce him to presume that the tes- tator meant his sister Rebecca instead of Reyne,(x) for the expres- sions in the will were so large as to induce a belief that the testator did not regard the circumstance of his two sisters then having chil- dren or not, but that he intended to include all the children they might possibly have. He (the testator) took no notice of the situa- tion of the two sisters at Leghorn, nor of that of the other, and his Lordship said he was not satisfied, that if the testator knew he had a sister named Rebecca at Leghorn with children, he meant to provide for them ; for if so he would have rimmed her by her right name, his knowledge of which was not doubted. It was upon such reasoning that his Lordship pronounced on the insufficiency of the parol evi- dence. The last case was followed by Holmes \. Custance.(y) There the testator gave " to the children of Robert Holmes late of Norivich, and now of London, the sum of 100f..a piece." The legacies were claimed by James the surviving child of Robert Holmes,- but which was resisted 'under the following circumstances that were proved in the cause; The testator -had two relations named Robert and George Holmes. The former died in London, previously to the date of the will, leaving" the plaintiff his only child, another, whom he had, hav- ing died in infancy. Robert left Norwich for London at an early age, in which latter place he resided until his death. George Holmes, the other relative, formerly lived at Norttrich, but resided in London when the testator died. He had several children ; some of whom lived at Norwich, and were in habits of intimacy 'with the testator. The children of George, therefore, claimed the legacies given to the children of Robert Holmes, insisting that the name of Robert was 'in- serted by mistake instead of the name of George ; But Sir W. Grant was of opinion that the evidence was" insufficient to authorize him to vary the description in the will, and^ remarked that if the present had not been a case of competition^ but the executor had taken the ob- jection, the name of Robert Holmes being found, in the will, very strong evidence would be necessary. His Honour then proceeded to comment upon the evidence as follows : " As to the mistake of the name,- what I am to collect is, either, if the testator himself wrote.tlte will, that he wrote the name "Robert" by mistake when he meant " George;" or, that if another person wrote the will, that person by misapprehension of the testator's instructions wrote the name of (*) 3 Bro. C. C. 451. . (i/) 12 Vcs. 279. SECT. XVIII. ] Description. of Legatees. 143 "Robert", for " George.' 1 '' Then, considering it as a case of compe- tition, none of these circumstances will do. First, as to the descrip- tion, " late of Norwich" not answering to Robert, who had not re- sided there for many years, every one knows, the sense of " late" is, not recently, but formerly, of Norwich. Then, as to the circum- stance, that he .was not jiving at the date of the will; he was at a distance, and the testator might not have known of his death, or might have forgotten it. As to his haying left only one child, the legacy. being given to " the children, ".the testator living at a dis- tance, might not have known the state of h'is family, and meant only, that if he had children, they should have the legacies. In the case Delmare v. Robello,(a) the evidence was very strong, .amounting to a high degree of probability, that the testator intended his sister Re- becca; yet Lord Thurlow would not venture so to decide. I can- not, thetefore, vary the will upon this evidence." The two last cases are authorities far the admission of parol evi- dence to raise a latent ambiguity, and then to show error in descrip- tion under circumstances where there were persons literally answer- ing the terms of the bequests. They are instances of facts produced, .which, when compared with the wills, raised 'presumptions of proble- matical mistakes ; i.e. of tlje. possibility of the testator's having been mistaken in describing the legatees ; an ambiguity of the slightest kind, yet sufficient on general principle. to authorize the admission of verbal testimony to show in what particulars the errors consisted, and to rectify them. ' Another class of cases falling under the head of problematical errors, inferred from the state of the testator's family compared with the description in the will, and presumed in order to support the legacies, although probably no mistakes were in reality committed, is, when bequests are-made to a part only of a class of persons an- swering the same description, but the will does not distinguish the particular objects of the testator's bounty. It is settled, that if a testator bequeath to part only of a number of individuals of the same description, and none of them are named nor can be identified, either by the will or by extrinsic evidence, it is to be presumed that he intended the whole class of persons, and was mistaken in the number when confining his bounty to three or four of the class by the insertion of those words. These restrictive ex- pressions are therefore rejected, and the entire number of individuals answering the description are admitted as legatees. Suppose, then, a legacy was given to the three children of #., and ^2. hud four chil- dren at the time of the will ; the word " three" would '-be rejected upon the presumption of mistake, and the four children of A. would divide the legacy among them. Such a presumption is doubtless unsatisfactory, and nothing but necessity can warrant it. That ne- cessity is, to give effect to the bequest; for if all the children were not supposed to be intended, the legacy would be void from the im- possibility of discovering which of them were intended by the de- scription of three children, there being four. In Tomkins v. Tomkins,(b) the testator, after giving to his sister 20L bequeathed ." to hGr.three children 501. a piece." The sister had (a) See preceding page. (6) 19 Ves. 126, in notes. 144 Description of Legatees. [Cn. II. four children; and each of the four was declared to be entitled to a legacy ni' ")OZ. That case was followed by Lord Kenyon in Stebbing v. Walkley.(b) The bequest was of S21. three per cent annuities, in trust for the two daughters of Titus Stebbing, in equal shares, for so much of the term therein as they should live; and if either died before the end of the term, the whole was to belong to the survivor; but if both died before that time, the legacy was to fall into the residue. Mr. Stebbing had three daughters at the date of the will; and his Lord- ship determined that the three were equally entitled. The first of the fvvo last cases was the authority upon which Sir H . Grant, M. R. pronounced his decree in Garvey v. Hibbert.(c) There Mr. Mauduit bequeathed to the " three children of Deborah Duval, wife of Dr. B. Duval, 600Z." Mrs. Duval had/owr children when the will was made, and the legacy was decreed to the four. His Honour remarked, that the ground upon which. the Coort had proceeded, was, that it was a mere slip in expression; the meaning was, all children, or all servants; and the .Court, conceiving the in- tention to- be to give to each child so much, strikes out the specified number. , An instance of the Court having acted upon this presumption on a bequest to servants, occurred in Sleech v. Thorington.(d) In that case the testator bequeathed to the two servants who should be living with her at her death 1001. new South Sea stock, in equal shares. The testatrix Jhad two servants in her employ when she made her will, and afterwards took another, who was in her service at the period of her death. And Sir Thomas Clarke, M. R. determined, that the third servant . was entitled with the other two, upon the ground, that whatever was the number of servants living with the. testatrix at her decease, she meant that the whole should participate in the bequest. The principle upon which the last case was decided applies to that next stated. Neither of them -is so strong as the preceding authorities against the presumption of mistake in the testators; for the expressions in the two wills showed the intent to comprehend all the persons answering the descriptions, so as to authorize a re- jection of the restrictive words as repugnant. In Scott \.Fenoulhett, (e) the testator bequeathed to CaptainComp- ton 5001. and the like sum to each of his daughters, if both or. either of them survived Lady Chadwick; an event which happened. The captain had three daughters at the date of the will ; and first Lord Bathurst, and secondly, Lord Thurlow, determined that the three daughters were entitled. In all these cases, evidence dehors the will of the state of the fami- lies of the legatees- was necessarily admitted, and" from which sprung the uncertainty in regard to the particular persons intended by the testators, who, in bequeathing to a specific number of a class of in- dividuals, omitted to distinguish the select objects of their bounty from the rest. If then the Court had not in the preceding cases. re- jected the restrictive words, and let in all the persons in each de- (i) 2 Bro. C. C. 85, ed. by Self, and stated as corrected by him from Reg. Lib. (c) 19 Ves. 125. (rf) 2 Yes. sen. 561. (e>) 1 Cox, 79. SECT. XVIII.] Description of Legatees, 145 script chuss, the legacies must have been void for uncertainty ; for no evidence was offered of intention in favour of any of .the indivi- duals in preference to the others. That such evidence would have been admissible, will appear on reference to the cases in this and the two preceding sections. It is true that the decree in Dowset v. Sweet,(fJ as to this point, seems to the contrary ; but that decision has been always considered of no authority. The testator gave " to the son and daughter of W. Wicker" a legacy of 100Z. Wicker had/owr sens and one daughter; and upon a question as to which of his sons was entitled, it was de- termined that none of them should take the legacy in consequence of the uncertainty of description, but that the daughter should re- ceive the whole. Upon this decision Lord Thurlow made the following remarks : " It is almost impossible to say, that if there be a bequest to the son and daughter of one, who at the time of the bequest has four sons and a daughter, there is not such a dissonance between the state of the facts and of the bequest as to let in satisfactory evidence that one son was meant, as it is clear that he meant one. It is within all the rules of latent ambiguity. I suppose, therefore, that the case of Dow- set v. Sweet went upon the ground, that the evidence was not suffi- cient to show the intention, and then it became uncertain." Whether the defect in the evidence ought to have produced a de- cree against the sons, as supposed by Lord Thurlow, is open to these observation!*: that there seems as much reason to presume the tes- tator or transcriber of the will to have made a slip in writing the word son for sons, as that the testators, in the preceding cases, were mistaken in the 'number of legatees. The state of Wicker's family when compared with the description in the will, cannot fail to strike every reader, of the great probability that all his sons were intended to be included by the testator, and that the omission of the letter s to son, was a mere clerical mistake. The will itself seems to 'be sufficient to correct it ; for where a man has sons and one daughter, and a bequest is made to his " son and daughter," the intention of the testator to provide for all the sons, as well as the only daughter, is so apparent, as to convince every person of common intellect, that the omission of the letter s to " son," was a mere slip of the pen. The case is quite different from that of a legacy to one of the sons of a particular person, who had many ; for there the ambiguity is patent, upon the will, and only one of the sons was intended, who not being designated, and evidence to ascertain him being inadmis- sible^the bequest is necessarily Void, for uncertainty, (g) That evidence is admissible to ascertain what particular persons were intended under the bequest to the three children of A. when A. had four or more, the following is an authority : In Hampshire v. Peirce,(h) the testatrix bequeathed 1 OOJ. " to the four children of her late cousin Eliz. Bamfield;" who at the date of the will, had two children by a former husband, and four by a second ; all of whom survived her. Upon a question whether parol evidence was admissible to show that the testatrix meant the four (/) Ambl. 175. () 2Vern, 624. (A) 2Ves. sen. 216. VOL. I. T 146 Description of Legatees. [Ca. II. children of Mrs. Bamfield by a second husband 7 Sir John Strange, M. 11. decided in the affirmative ; because the evidence which re- moved the latent ambiguity raised by the introduction of the state of Mrs. Bamfield's family, did not contradict the will, but merely determined which four of the children were intended by the testa- tor, and he determined uj^on the evidence in favour of the four chil- dren of Mrs. Bamfield, by her second husband. But when the effect of parol evidence would be, to contradict the will, it cannot be received in the face of the Statute of Frauds. Accordingly, in the 'same case of Hampshire v. Peirce. the testa- trix gave " to the children of her late cousin, Eliz. Bamfield, 300/." Evidence was tendered to show, that she meant the four children which Eliz. had by her second husband, in exclusion of the two by her first ; although they were included under the description in the will. But Sir John Strange, M. R. rejected the evidence for the reason before mentioned, and declared that all the children of Eliz. were entitled. Having in the two preceding sections, traced the consequences of errors in the names and descriptions of legatees, which were dis- covered upon the production of extrinsic evidence, we shall lastly consider SECT. XIX. The Consequences of IMPERFECT Descriptions of, or reference to Legatees appearing UPON THE FACE OF WILLS, and when PAIJOL Evidence is admissible. Instances of imperfect descriptions of, or references to legatees appearing upon the face of wills may occur : 1. When a blank is left for the Christian name of a legatee ; or, 2. where the whole name is omitted ; or, 3, When the testator has merely written the initials of the name ; or 4, when legatees hav been once accurate- ly described, but in a subsequent reference to one of them, to take an additional bounty, the person intended is doubtful, from ambigu- ity in the terms. For the sake of perspicuity, it is proposed to consider each of the before-mentioned subjects in regular order ; first premising that it is a general rule that parol evidence is admissible upon latent ambi- guities, and not upon ambiguities which are patent, i. e. such as are apparent upon the will itself. That this distinction is attended with minute nicety of discrimination in some instances, will appear from cases afterwards produced. If, when upon opening wills, such bequests are found, as " to Jones, the son of Jones ;" or " to Mrs. B." and parol evidence is- admitted to ascertain the persons intended by those ambiguous terms, it would seem a vain attempt to justify that admission upon the doctrine of latent ambiguity, when the ambiguity is patent upon the will. The principle upon which parol testimony is admitted in those cases, is probably, in the first of them, a presumption of possible ignorance in the testator of the Christian name of the legatee, and in the second, a similar pre- sumption of his being in the habit of calling the person by the name of Mrs. B. Presumptions, which being raised upon the face of the will, may be confirmed and explained by extrinsic evidence. Upon these grounds the admission of parol evidence in those two instan- ces, will be cpnsistent with the established doctrine of its admissi- SECT. XIX.] Description of Legatees. 147 bility, to raise and remove latent ambiguities (of which examples have been before given ;) and of its not being admissible when of- fered to explain a patent ambiguity in the will, of which the Court of King's Bench proposed an instance in Edward AUham's case :(i) " If A. by deed, give goods to one of the sons of /. S. who has seve- ral sons ; he shall not aver which son he intended ; for by judg- ment in law upon this deed, the gift is void for the uncertainty, which cannot be supplied by averment." And there is no differ- ence between a deed and a will, as to this matter.(A:) We shall now proceed to consider 1. When a blank is left for the Christian name of the legatee. That parol evidence is admissible to supply an omission of the Christian name of a legatee, is proved by the case of Price v. Page,(l) in which the testator bequeathed " to Price, the son of Price, the sum of 100Z." No person but the plaintiff claimed the legacy, and he produced evidence from which it appeared, that he was the son of a niece of the testator ; that his father's and grandfather's names were Price, that the testator had no other relation of that name, that he lived on terms of affection with the plaintiff, contri- buted to his maintenance, placed him with an attorney, and paid the duty on that occasion, and that the testator said he had or would provide for the plaintiff, and that he had left him something by his will. Upon this evidence, Lord Alvanley determined in favour of the claim. But- 2. When the omission consists of the entire name of the legatee, parol evidence cannot be admitted to supply the blank, for that would amount to a bequest by oral testimony. Thus in Winne v. lAttleton,(m) A, bequeathed all his personal estate to his executor, leaving a blank, and died without naming any person executor. The legacy was adjudged to be void. So in Baylis v. The Attorney General,(n] the testator gave 200J. to the ward of Bread-street, according to Mr. his will. Lord Hardwicke would not allow the blank to be supplied by parol evi- dence. And in Hunt v. Hort,(ci] a woman devised her houses in town and at Richmond to her niece, Dame Margaret Ilort, and Richard Baker, her attorney, in trust to sell. She then gave some pictures specifi- cally, and thus proceeded : my other pictures to become the pro- perty of Lady (leaving a blank after the word lady.) The testatrix then made her niece, Harriet Hunt, residuary legatee, and appointed Lady Hort and Richard Baker her executors. Lord Thurlow was of opinion that he could not supply the blank by parol evidence, and observed, that where there was only a title given, it was the same as a total blank. 3. If, however, a legatee be described by initials of his name only, parol evidence may be given to prove his identity. This was done in the case of Abbot v. Massie,(p] where the be- quest was, "Pint silver mug, and -all my china, to Mrs. G. and 101. for mourning," Mrs. Gregg claimed the legacies, and, the Master having refused testimony, offered to show that she was the person (0 8 Rep. 155. a, X*') 2 Ve - 624 - CO 4 Ves. 680. (m) 2 Ch. Ca. 51. () 2 Atk. 239. (o) 3 Bro. C. C. 311, (/O 3 Ves. 148. - 148 Description of Legatees. [Cn. II. intended; exception was taken to his report. Upon which the Court declared, that he ought to receive evidence, but legal evidence, to prove who Mrs. G. was. 4. And with respect to a patent ambiguity arising from an im- perfect reference to one of two legatees correctly described in a prior part of the will, parol evidence is inadmissible to show which of them was intended, so that the additional legacy intended for the one will depend upon the removal of the obscurity by a sound in- terpretation of the whole will. An instance of this kind occurred in a case of Castledon v. Tur- ner.(q) The testator gave his real estates to his wife Alicia, for life, remainder to M. Dinton,-mece to his said wife. Item, he gave " the use of 500Z. stock, for and during her life, but after her death, he gave the 500/. among the brothers and sisters of the said wife." The question was, whether by the relative word, her, the niece -or the wife was intended *? And it seems that parol evidence was of- fered of the testator's intention,(r) but Lord Hardwicke, after reject- ing that testimony, determined in favour of the wife, upon a sound and grammatical construction of the will. The last oase was followed by Fox v. Collinses) but differing from it in this particular, that no parol evidence was offered, and if any had been tendered, the case just stated would have been an authority for rejecting it. In Fox v. Collins the testator first pro- vided for Sidney Collins, the second daughter of his deceased uncle, Thomas Collins, late of Huntingdon. He next made provision for the son of his said uncle Thomas, and then gave a legacy to the de- fendant, Ann Collins, of St. Ives, a daughter of his uncle Thomas ; and also a legacy to Edward Collins, a grandson of Thomas ; but if Edward died'before the testator, the legacy was to go to his children, if he left any : and if there were none, the money was to be applied as part of the testator's residuary estate. The next objects of the testator's bounty were the descendants of his deceased uncle, Robert Collins, one of whom was riamed Ann Collins, and resident at Brom- yard in Huntingdon, and was so described. The testator, after giv- ing some legacies, bequeathed his residuary personal estate, " to the said Sidney Collins, Ann Collins and Sarah Collins, in equal shares. The question was, which of the two Ann Collins was meant by the testator 9 And Lord Northington determined in favour of Ann Col- lins of St. Ives, the daughter of Thomas, the uncle. 1st, Because the descendants of Thomas appeared to be the primary objects of the testator's bounty, and as such first named in the will ; and the direction for the legacy to Edward (grandson of Thomas) to fall into the residue upon the contingencies before mentioned, appeared to his Lordship material evidence of the testator's intention, that the residue should be divided among the descendants of Thomas. And, 2dly, because, in addition to those circumstances, the name " Ann Collins" in the residuary clause was placed between two of the descendants of Thomas, whence his Lordship was satisfied upon what appeared in the will, that Ann Collins, the daughter of Thomas, was the person designated by the description of " Ann Collins." (?) 3 Atk. 257. (r) 2 Ves. sen. 217. ' () 2 Eden. 107. SECT. I.] Specific Legacies. 149 CHAPTER III. Of Specific Legacies. IT is proposed to consider in this Chapter, What are and what are not Specific Bequests of personal property. The subject will be discussed under the following arrangement : SECT, I. What are Specific Legacies, and the privileges and disadvantages attending them. SECT. II. Specific Legacies of individual personal chattels. SECT.. III. Specific Legacies of, and relating to real chat- . tels and estates. 1 . Of real chattels. 2. Of rents and annuities out of real chattels and estates. 3. Of gross sums of money out of them and 4 . Of the produce from their sales. SECT. IV. Specific Legacies of sums of money and personal annuities. l.-i-O/" money. . 2. Of annuities. SECT. V. Specific Legacies of stock or annuities in public funds. I . Effect of " my" preceding tJie word " stock." 2. Bequests of stock generally. 3. Construction when stock is bequeathed generally in a particular fund. . 4. - - - when expressly out of particular stock. 5. when not expressly out of stock, but stock is mentioned as thefunain which the money be- queathed is, or is supposed to be invested. SECT. VI. Colonial property. Legacies of, when and when not specific. SECT. VII. Legacies of debts. 1. When specific. 2. When not. SECT. VIII. Bequests of general personal estate. 1. When specific. 2.'- When not. SECT. I. What are SPECIFIC LEGACIES, and of the privileges and disadvantages attending them. A regular specific legacy may be defined, " the bequest of a par- ticular thing or money specified and distinguished from all others of the same kind, as of a horse, a piece of plate, money in a purse, stock in the public funds, a security for money, which would im- mediately vest with the assent of the executor." It differs from a 150 Specific Legacies. [CH. III. general or * pecuniary legacy in this respect, that if there be a de- ficiency of assets, the specific legacy will not be liable to abate with the general legacies ; and on the other hand, if such specific legacy be. disappointed, as by failure of the specific fund, the legatee will not be entitled to any recompense or .satisfaction out of the per- sonal estate of the testator. (a) But there are legacies of quantity in the nature of specific lega- cies, as of so much money with reference to a particular fund for their payment.(ft) This kind of legacy is so far general, and differs so much in effect from that first described, that if the funds be called in or fail, the legatees will not be deprived .of the'ir legacies, but be permitted to receive them out of the general assets ; yet the legacies are so far specific, that they will not be liable to abate with general legacies upon a deficiency of assets. (c) It is truest that this Anomalous kind, of specific legacy was thought a refinement by Lord Thurloio in jlshburner v. M l Gruire;(d) yet, it will appear from the authorities after-mentioned, that a distinction has been established, in accordance with the civil law,(e) between the bequest of a sum of money, with reference to a security or debt for its payment, and the gift of the security itself, and that they are attended with the different consequences before stated. We shall proceed to consider, SECT. II. What LEGACIES of individual personal Chattels, are and are not specific. The intention of testators upon this subject, as in every question on the construction of wills, is the principal object to be ascer- tained ; and it is therefore necessary, that the intention be either expressed in reference to the thing bequeathed, or otherwise clearly appear from the will, to constitute the legacy specific. What is sufficient for that purpose, may be collected from the definition given of a specific legacy in the beginning of the chapter, and from which it is- a consequence. That if A. bequeath in this manner: " the brooch which I re- ceived as a present from A. J5."; or, " my horse named Castor," &c. ; such and the like bequests will be specific, for the object is * In classing legacies, the words " general and specific" will, thr&ughout the present work,be exclusively adopted, though there is highly respectable authority for using the word " pecuniary" synonimously with " general :" It is not how- ever strictly accurate, for every general legacy is not pecuniary (?. e. ) relating to money } and one species of specific legacy -is of a pecuniary nature, so that there may be either a general pecuniary legacy, or a specific pecuniary legacy. The terms " general" and " specific" answer every purpose without involving any ambiguity. (a) 1 Vern. 31. 1 P. Will. 422. 540. 679. 3 P. Will. 385. 3 Bro. C. C. 160. (b) Touchst. 433: Afnbl. 3\0. 4 Ves. 565. 3 Ves. & Bea. 5. (c) 2 Ves. jun. 640. 5 Ves. 206. Acton v. Acton, 1 Meriv. 178. (rf) 2 Bro. C. C. 108. {e) Si testator scripserit aureos quadringentos Pamphilx dari volo, ita ut infra scriptum est, ab Julio autore. aureos tot, et in castris, qups habeo tot, et post multos demum annos decesserit cum jam omnes summte in alios usus translate essent, responsum fuit ; Pamphilx quadringenta deberi ; quia vero similius est patrem familias demonstrare potius hxredibus voluisse, unde aureos quadringentos sine incommode rei familiaris contrahere possent, quam cbnditionem fidei commiso injecisse, quod ab initio pure datum esset. Voet on Pand. 35. tit. 1. sect, 5. SECT. III.] Specific Legacies. 151 accurately referred to and described, and the legacy can only be satisfied by a delivery in specie.(f) Thus, a bequest of so many of the testator's horses as should amount to SOOJ. was held in Richards v. Richards,(g) to be specific. But if it be uncertain from the description whether any particular horse or brooch was intended, so that the bequest may be satisfied by delivery of something of the same species of that mentioned, the legacy will not be specific. Thus, if A. having many brooches or horses, bequeath " a brooch'' or " a horse" to B. ; in these and such cases the legacies will not be specific but general. (Ji) So also if there be error in the description in the- chattel intended to be specifically given, the mistake may be of such a nature as not to be permitted to disappoint the specific bequest. If, therefore, 'A. having one horse only, which is white, bequeath it to-/?, by the words my " black horse," the mistake is obvious and easily remedied, and the legatee will -be entitled to the specific horse, although not of the colour, described, for there can be no doubt of that being the horse intended- for him, and the legacy will be specific. (i) But if the testator had two white horses of different values, and intending one of them in particular for B. bequeathed it to him by the words, " my white horse," it is presumed that evidence is ad- missible, to show which of the two horses was intended. (&) It ap- pears upon the face of the will, that >one of the two horses was meant for B. ; and the uncertainty respecting the one so intended, arises from the latent ambiguity developed by the comparison of the will with the testator's property : it seems, therefore, necessary to resort to such evidence in this case, upon the same principle which renders it admissible to determine which of two persons of the same Christian name and surname 'is entitled to a legacy intended for one of them, but which is bequeathed by a description applicable to both legatees. (V) SECT. III. With respect to LEGACIES of, and relating to, real CHATTELS and ESTATES. 1 . A lease or term for years is as capable of being made the sub- ject of a specific bequest as freehold estates ; bequests or devises of which are always specific. Accordingly, if A. bequeath his term for years in an estate at B. or the lease of his farm there,(m) or " the lease which he then held,"(w) or " all 'his tithes payable 'out of C.,"(o) (he having a lease for years of such tithes), or if after bequeathing his leasehold estate- to A. for life, he afterwards give it to B. by the words, " all my estate, term and interest therein" (expression which must be confined to his estate, term and interest in the then existing lease, and not be extended to any future lease ;(p} or if A. devise his leasehold estate (/) Touchst 433. (g) 9 Price, 219. . (A) 1 Atk. 417. (j) Touchst. 433. and see chap. IV. sect. 4. () See Selwood v. Mildmay, 3 Ves. 306. and 2 Ves. sen. 28. 1 Bro. C. C. 477, 13 Ves. 174. (0 IP. Will. 421. 425. 3 Ves. 148, 6 Ves. 42. 2 P. Will. 140. Ambl. 374. (m) 1 P. Will. 403. 693. () 2 Atk. 597. (o) 2 Ves. sen. 419. 1 Bro. C. C. 263. (fi) 16 Ves. 179. 152 Specific Legacies. [Cn. IIL to trustees, with a direction to apply the rents for the benefit of C. or to accumulate for a certain period, and then to pay or transfer the fund to C.; each of those bequests will be specific, for the in- tention is clear to sever the property from the rest of the personal estate, and to bequeath it specifically. As an instance of the case last supposed, In Mayott v. Mayott,(qj A. directed B. by will to take possession of his farm that he held under C. and the stock, crop, &,.c, and to carry on the farming business ; and also that the net yearly produce from it should be placed at interest upon government security in the name of D. in trust to accumulate till his nephew E. had a son of the age of twenty-one, at which time the business of the farm, with such stock, crop, &c. as amounted to I500Z was to be assigned to him ; but if E. had no such son/.#. bequeathed s\ich possession, stock, crop, &c. to the .same amount, to the first son of his other nephew attaining twe'nty-one. And if there were no such son of either nephew, he gave the same amount of such stock, crop, &c. to F. and bequeathed the residue of the monies he had directed to be -placed out as aforesaid in D.'s name, with 3001. stock, and all other his personal estate to L. M., &c. A. was only tenant from year to year of the farm, and C. the landlord, would not permit it to be carried on by the executor of A. The Master of the Rolls de- cided, that since the farm could not be continued, the legacies could never become due, (i. e.) as they were intended to consist of the yearly net produce of the farm, it was a necessary consequence, that as the farm (the principal) was lost; the legacies, its accessaries, must share the same fate. ' 2. Since a term for years may be specifically bequeathed, so may a rent made issuing out of it; which is equally the case in relation to rents of other real estates. .If, therefore, a term for years or other estate be bequeathed to B. and a rent out of it to C., as the bequest to B. is specific, so is the rent given out of it to C.; for it must be inferred to have been the undoubted intention of the testa- tor, from the forms of the bequests, to divide the fund between B. and C. by giving the term or estate to the one, and the rent out of it, to the other. And by whatever words expressed, or however col- lected from the whole will, if the intention clearly appear to give specifically, that intention will make the legacy specific, although a court of equity is well known to be averse to such a construction, on account of the consequences attending that species of bequest. Accordingly in Long v. Shorter) A. bequeathed 401. a year to B. for life, out of his chattel estate at Kenn, and 101. a year to C. for life, out of the sarrie estate, which he gave to D. These several be- quests were decreed by Lord Cdwper to be specific, his Lordship re- marking, that the devise pf a rent charge out of a term, is as much a specific devise, as if it had been of the term itself. In the last case, it must be observed, that the legacy was of a rent, part of the yearly produce of the .term, and incapable of separation from it ; hence the devise of the term being specific, the disposition of a portion of its rent was equally so, and the decision was in per- fect unison with the testator's intention. If, however, the intention (?) 2 Bro. C. C. 125, ed. by Belt, (r) 1 P. Will. 403. and see 2 Ves. sen. 623. SECT. III.] Specific Legacies. 153 be apparent to give the -legatee an annuity, for life, at all events, then although the annuity be given out, or be directed to be paid out of an estate or the rents of it, such annuity will be general, and not fail by the eviction of the fund, or the insufficiency of the charge of the legacy upon it. As an example of this In Mann v. Copland,(s) Ji. bequeathed as follows : " to B. my servant, I give an annuity of Wl. during his life, to be paid out of the rents arising from an estate of a house (which was freehold) in C. &.c. should he be in my service at my death. There being a deed existing between me and my brother, whereby I give up all my in- terest in the house, which I have requested him by letter to cancel. These deeds are now in the possession of D. of, &c. It is my de- sire, if the deeds be not cancelled, that the sum of 200Z. shall be se- cured from the sum of 2000/. five^er cents navy, in trust for the said B. during his life, I also give to the said B. all my clothes and linen." The will was not properly attested to charge freehold lands ; nor was the testator possessed of any navy annuities. The question was, whether the bequest of the annuity was general or specific; for if it were the latter, it could not take effect. But Sir Thomas Plumer, V. C. determined upon the construction of -the will that the legacy was not specific ; for, said his Honour, the intention is clearly mark- ed to give B. a legacy of 101. a year during his life, if he were in A's service at ./2.'s death, and which event happened ; and that Jl. also gave him his clothes and linen. His Honour also observed, that A. first gave the annuity, and then proceeds to say out of what it was to be paid, first the real estate, if it existed, and next, the five per cents ; but, said his Honour, the legacy might stand, although the fund Out of which it was directed to be paid did not exist ; that the legacy was not so specific and so connected with the fund as to fail if there were no such fund, it appearing, that there was a fixed, independent, separate, distinct intent to give the legacy ; the particu- lar property, out of which it was to be paid, being a secondary thought. The Court further remarked, that the testator meant to give 2001. out of his personal estate, to be set apart as a fund for payment of the legacy, and that there being a positive intent to give the legacy, although the mode, by which payment of it was to be secured, failed, yet the legatee was entitled to have it made good out of the personal estate. 3. So also if, instead of an annuity, a gross sum be given out of a term or estate, it would seem that such bequest would operate as a charge only upon the property ; and be considered as a demon- strative legacy, (t) i. e. a gift of so much money, intended for the legatee at all events, with a fund (the estate) particularly referred to for its payment ; so that if the estate be not the testator's property at his death, the legacy will not fail, but be payable out of his ge- neral assets. This is one of that class of legacies, mentioned in the beginning of this chapter, as not being regular specific legacies, but in the nature of specific legacies. The above observations will re- concile the case last stated with that of Savile v. Blacket, and the other authorities after mentioned upon this species of bequests. () 2 Madd. 223. (f) 4 Ves. 741, VOL. I. U 154 Specific Legacies. [Cn. III. In Savile v. Blacket,(u) A, having a. power of charging 1000Z. upon lands (which power he afterwards destroyed,) bequeathed 1.000Z. to his child B. out of the lands, and also 1000Z. which he charged upon his personal estate. The first 1000Z. not being an effectual charge upon the lands in consequence of the destruction of the power, the question was whether the bequest was not specific and therefore failed 9 But Lord Macclesfield decided in the negative, observing, that it was the intention to leave B. the above two sums, the one charged, by express words, on the personal estate ; and the other upon the lands ; that if a legacy were given to J. S. to be paid out of such a particular debt, and none was found owing, or, there being one, it failed, still the legacy ought to be paid, and the failing of the modus appointed for payment should not defeat it. Upon the same principle the decision was made in the recent case of Fowler v. Willoughby.(x) In that case the testator direct- ed a legacy to be paid out of the produce of an estate which he had contracted to purchase, but which contract could not be completed ; and it was held, that the legacys hould be paid out of the testator's general assets, though the particular security intended by him hap- pened to fail. 4. It appears that the principle of the decision of Savile v. Blacket was the intention of the testator not to make the legacy depend upon the due execution of his power, but to bequeath a sum equiv- alent to what he was entitled to charge upon the estate, with refer- ence only to that estate as the primary fund for payment of it ; that such was the testator's intention, appeared to Lord Macclesfield, upon the construction of the whole will. Following then the same principle, viz. the intention of testators, if a testator direct his free- hold or leasehold estates to be sold, and dispose of the proceeds in such a form as to evince an intention to bequeath them specifically, the testamentary dispositions will be specific, the money is suffi- ciently identified and severed from his other property ; and since he has sufficiently marked his intent to distribute the identical pro- ceeds, the bequests are accompanied with all the requisites of spe- cific legacies. An instance of this kind occured in Page v. Leapingwell.(y) In that case A. devised to B. real estates in trust to sell, but not for a less sum than 10,OOOJ. ; and he directed B., out of the monies ari- sing from the sale, in the first place, to lay out the sum of 3000Z. in purchasing a benefice for his godson, C. He also directed B., by and out of the monies arising from such sale as aforesaid, to lay out the sum of 4000J. in the purchase of lands in the county of Essex, and as his nephew D. should choose ; and he further directed B. by and out of the monies arising from such sale- as aforesaid, to place the sum of 5001. at interest in the funds in his own name, and to pay the dividends to E. for life, and afterwards to divide the principal as therein mentioned. The testator then gave three legacies of 100Z. each, and directed B. after payment of the above legacies, to invest in the public funds all the overplus monies arising from the sale of his said real estates, and to pay the dividends to F. and G. equally. The testator then proceeded to dispose of other parts of his property, () 1 P. Will. 778. (x) 2 Sim. & Stu. 354. \y) 18 Ves. 463. SECT. IV.] Specific Legacies. 155 and concluded with a general residuary bequest. The proceeds from the sale of the lands were less than 7000/. The questions were, whether the legacies were specific l and if so, whether F. and G. were entitled to any part of the fund with the other legatees, since what was given to them appeared to be residuary. And Sir W. Grant, M. R. was of opinion that the legacies were specific, upon the principle that the testator assumed he had at least 10,000: pro- ceeds from the sale to dispose of, and that he portioned them out among the legatees. His Honour also considered the testator to mean that F. and G. should take at the least what should remain after payment of the specific legacies, viz. 2200Z. (the testator assum- ing that the proceeds would amount to 10,OOOZ., but if to more, then intending them the excess.) The determination was, that if the lands had produced 1 0,000 L the shares of F. and G. in it, would have been 2200/. ; F. and G. were therefore entitled to so much of that sum as remained, after abating rateaWy with the other specific legatees. SECT. IV. As to Legacies of Money and Personal Annuities. 1. That money may be the subject of a specific bequest is a point firmly settled. (z) Suppose A. to bequeath to B. 1000L deposited in a certain chest, bag, or purse, or in the hands of C., the lagacies will be specific. (a) In these instances the money is separated from the general personal estate, and is described in that condition, so that the bequest of it falls within the before-mentioned definition of a specific legacy. The intent is clear to give the identical money, and not a sum of the like amount generally, which would be merely a general legacy. The legatee therefore can say to the executor, give me the 1000Z. in specie which are in the chest, bag, or purse, or in the hands of C. for that specific money is mine. Thus in Ellis v. Walker,(b) A. the partner of B. f bequeathed to B. 2000Z. which appeared to be due to A. on the last settlement, in trust, to pay the interest of 1000Z. to his (./#.') mother, and the in- terest of 3001. to his aunt, for their lives ; and after their death he gave 1500J. to C. and 5001. to D. " if he did not draw it out of trade before he died." The question was, whether the 2000Z. were so given as to constitute a specific legacy "? And Lord Hardwicke decided in the affirmative, for, said his Lordship, the testator being partner with B. made up with him an account by which 2000Z. (that is in value,) appeared to belong to the testator ; B. would not have been answerable for 20001. at all events, but only for the testator's share of the stock. It was not a gift of 2000Z. debt, but of so much out of the partnership stock, yet, said his Lordship, the latter words, " If I do not draw it out of the trade," make great alteration, and in my opinion make the legacy specific. But when the language of the bequest is such, that neither by re- ference to any collateral thing, can the money bequeathed be distin- guished from the testator's other monies, nor a clear intention be (z) See sect. 7. as to specific legacies of debts. (a) 1 Atk. 508. 1 P. Will, 540. 2 P. Will. 164. Pulsford v. Hunter, 3 Brc. C. C. 416. (A) Ambl. 309. 156 Specific Legacies. [Cn. III. perceived to give a specific part of his personal estate, such a be- quest will be general ; it does not fall within the definition which has been given of a regular specific legacy. The legatee is unable to point out to the executor any particular sum of money that he can call his own, as he had the power of doing in the former instances. The legacy, therefore, must necessarily be general. An instance of this occurs in the common bequest of a sum of money, without mentioning out of what fund it is to be paid. The legatee has no particular part of the personal assets to resort to, . but the intention is satisfied by the executor's payment of the legacy out of any por- tion of them. In Richards v. Richards,(c) a legacy of 4001. cash was determined to be a general legacy. It is also to be remarked, that it is not the object or purpose for which a legacy is directed to be applied that make it specific, but (as before observed) the intention of the testator expressed or clearly appearing from his will in reference to the thing given, so as to sepa- rate and distinguish it from his other property. Hence it fol-lows, that whatever may be the relationship of the legatee to the testator, or whether the legacy be by absolute gift, or to a person in trust, and to be the subject of settlement upon several persons, such legacy, if given generally, will be general, not specific. It was accordingly decided in the modern case of Apreece \. Apreece,(d) that 50Z. apiece bequeathed by A. to B. and C. for rings, were not specific legacies. So also it was determined in the Attorney General v. Robins,(e) that legacies of 60Z. a piece to executors, for their care and pains should not be preferred to general legacies, and consequently that they were not specific, which determination was approved by Lord Hardwicke in Heron v. Heron.(f) And it was holden in the same case of the Attorney General v. Robins that bequests of 5Z. a piece to servants were not entitled to any preference to others. Charities too are not exceptions to this rule, for it was decided in the case last referred to, that legacies to charities had no preference to others, and were consequently not specific. (g) And if a sum of money were bequeathed in trust to be laid out in the purchase of lands, or to be invested in government securities, neither of those purposes will make the legacy specific. The first point was so decided in Hinton v. Pinke,(h) the second in Lawson v. Stitch,(i) and again in Gibbons v. Hills, (k} In the last case A. (amongst other things) directed 3920Z. bank annuities to be purchased out of his personal estate for B., C. and D. Upon the question, whether that direction amounted to a spe- cific bequest 1 ? Sir Thomas Clarke, M. R. determined in the nega- tive. 2. Upon the same principle that the several legacies before men- tioned were adjudged to be general, it would seem that a voluntary bequest of annuities out of or charged upon personal estate, will not (e)2 P. Will. 23. 2 Atk. 161. 171. Cr) 1 P. Will. 433. (A) Ibid. 539. '.Will. 539. 5. P. (c) 9 Price, 219. (d) 1 Ves. & Bea. 364. (/) 2 Atk. 161. 171. Cr) 1 P. Will. 433. (0 1 Atk. 507. (k 1 Dick. 324. and see 1 P, SECT. V.] Specific Legacies. 157 be specific whether the legatee be a stranger or the -wife or child of the testator ; for whatever may be the intention imputable to a tes- tator, when such a bequest is made in favour of a wife or child, it rests in probability only, and is defective in not being apparent in his will. Besides it is not (as before observed) the purpose or object to which a legacy is applicable that makes it specific, but the inten- tion properly expressed or fairly and clearly to be collected from the will, to give a part of the testator's personal estate that can be dis- tinguished and identified from the remainder. In Hume v. Edwards,(l) an annuity charged upon the testator's personal estate was bequeathed to #. for life. And Lord Hardwicke determined upon the authority of Mton v. Medlicot, that the bequest was not specific. In the case ofJllton v. Medlicot,(m) there was a direction by will to layout a portion of the personal assets in the purchase of an an- nuity. That direction was held to be a general, and not a specific legacy. Lord Hardwicke appears to have ascribed the decision to the form of bequest being merely a direction to lay out, &c. and not a gift of the annuity ; but he observed, that the Court afterwards considered such a distinction too subtle, and had therefore decid- ed(w) that an annuity by will out of personal estate by direct devise or legacy, should abate with general legacies. But it was observed by his Lordship, that such only was the general rule, for the intent of the testator on the construction of the will must be followed, if he prefer such annuitant before other legatees; and his Lordship thought that such intention appeared in the case of Lewin v. Lew- in.(o) But since these bequests bear no similitude to specific lega- cies, and are admitted to be general,(p) and since the claims of the wife and children arose upon questions of their being obliged to abate, pari passu, with general legatees,, the consideration of the cases upon this subject is postponed till we arrive at the seventh chapter, which treats of the abatement of general legacies. SECT. V. Of Stock or Annuities in public funds. From the definition of a regular specific legacy in the beginning of the chapter, it is obvious that stock or government annuities may be specifically bequeathed ; but in order to make the bequests spe- cific, the intention that they should be so, must, be clear, otherwise the bequests will be general. 1. The word "my" preceding the word "stock" or "annuities" has frequently been adjudged sufficient to render the legacy spe- cific. If, therefore, I were to bequeath to B. my capital stock, sup- pose WOOL in that of the India Company/^) or " 1000Z. in my stock," or " part of my stock",(r) the legacies would be specific. 2. But it seems to be settled that mere possession by the testator, at the date of his will, of stock or annuities of equal or larger amount than the bequest, will not (without words of reference, or an inten- tion appearing upon the will that he meant the identical stock of (/) 3 Atk. 693. (TO) Cited 2 Ves. sen. 417. (ra) Hume v. Edwards, above, (o) 2 Ves. sen. 415. (/z) Ibid. 421. (q) Ashburner v. M'Guire, 2 Bro. C. C. 108. Barton v. Cooke, 5 Ves. 461. Norria v. Harrison, 2 Madd. 280. Cfioat v. Yeats, 1 Jac. & Walk. 102. (r) 4 Ves. 750. 1 Eq. Ca. Abr. 302. 158 Specific Legacies. [Cn. III. which he was possessed) make such bequest specific. In proof of this, A. bequeathed 1000J. capital South Sea stock to his wife for life for her separate use, with a power of disposition among her children. A. was possessed of 18QOI. of that kind of stock when he made his will, which he afterwards reduced to 2001. and again increased by purchase to 16001. It was one of the questions, whether the re- duction was not an ademption, which depended upon a prior inquiry, whether the legacy was specific 1 ? And Lord Talbpt was of opinion that the legacy was not specific, remarking that it was not the par- ticular stock the testator was possessed of which he gave, but the bequest was merely descriptive of the nature .of the thing given, of which "he had sufficient to answer the legacy .at the time of his death.(s) Again, In Simmons v. Vallance,(t} B. bequeathed as follows : he gave to C. the interest of 1001. new South Sea annuities, for life, and after his death to be equally divided among his children; and he also gave to C.'s children living at J5.'s death, " the sum of 501. each new South Sea annuities," with interest from his death, and the principal at twenty-one. B. further gave to.D. the interest of 1001. new South Sea annuities for life, and after his death to devolve to E. When B. died he had SOOl. new South Sea annuities standing in his name, which he was presumed to have had at the date of his will, although it was not stated. The only question was, whether these legacies were general or specific 9 And the Master of the Rolls was of opinion that they were general legacies, and therefore liable to abate with the other general legacies. So also in Wilson v. Brownsmith,(u}Jl. bequeathed to .B. and C. " 200Z. four per cent consolidated bank annuities." And it was one of the questions, whether the form of bequest was specific'? And Sir William Grant decided that it was general, and not specific. The three last cases are authorities that where a bequest is gene- ral of stock or annuities, the mere circumstance of the testator having the same, or a greater quantity of stock or annuities answer- ing the description of those given, will not convert the bequest into a specific legacy. But the case of AsJiton v. Ashton should be ad- verted to, which although it may, on the first impression, appear to militate against the last decisions, is yet capable of being recon- ciled. In that case,(x) Ji. bequeathed to trustees 60001. South Sea annui- ties, in trust to sell and lay out in the purchase of lands to be settled, &c. ; and he afterwards by a codicil gave them a further sum of 12001. to the same uses. A. having only 5360Z. South Sea annui- ties at the date of his will, Lord Talbot determined the bequest of annuities to be specific ; and, that therefore, the deficiency of the fund should not be supplied out of Jl's general personal estate. It will have been noticed that in the last case, there were no (s) Partridge v. Partridge^ Forrest, 226. (0 4 Bro. C. C. 345. and see Webster v. Hale, 8 Ves. 411. S. P, (u) 9 Ves. 180. (.r) Reported in Forrest, 152. and 3 P. Will. 384. Approved of in Sleech v. Tho- rington, 2 Ves. sen. 564. and a'dopted in principle by Lord Thurlow in Danvers v. Manning, 2 Bro. C. C. 18. SECT. V.] Specific Legacies. 159 words of reference to any particular annuities which the testator had at the date of his will ; hence, the inference that he intended the identical South Sea annuities he was then possessed of, must have arisen from some other circumstance, namely, the gift of them to the trustees in the form of a present legacy in trust to sell; and which it is presumed distinguishes this case,-and reconciles it with the autho- rities before stated. So explained, there does not appear to be any case with which the present is inconsistent, or by which it has been either expressly or necessarily over-ruled, as has been supposed ;(y) but it seems to remain an authority to this extent : that if a person, having 1000Z. three per cent consols, bequeath 1000Z. three per cent consols to trustees, in trust to sell, &c. the bequest will be specific; the intention being manifest, not conjectural, that from the direc- tion to sell three per cent consuls the testator referred to the stock he then had; such direction being equivalent to an express gift of the fund. The principle appeal's to be sound, for it is more reason- able to impute to the testator an intention that his. trustees should sell the annuities which he had when his will -was made,, than that they should, after his death, buy similar annuities for the mere pur- pose of immediate sale, which they must do if they acted according to the letter of the will. (z) This appears to distinguish the case of rfshton v. Ashton from Sibly v. Perry, after mentioned. (a) 3. We shall now proceed to consider the effect of a testator (who possesses stock or annuities in a particular fund) bequeathing a given sum of money, stock or annuities in that fund, without more parti- cularly referring to, or marking the corpus of the identical stock which he actually, had in that fund at the date of his will. It has been observed that clear intention is necessary to make a legacy specific ; but it does not exist in the present instance, for the testa- tator might only mean to direct his executor to purchase with his general estate so much stock in the fund described : such is the legal effect of the bequest; and that it is not specific, but general, (6) will appear from the majority of the following cases : A. bequeathed toB. " 5000Z. in the old annuity^tock of the South Sea company," and after two or three intervening legacies of stocks of different kinds, he " gave to C. 5000Z. in the old annuity stock of the South Sea company." When the testator made his will, and also at his death, he had only 50001. in old South Sea annuity stock, which B. claimed as legatee. The question was, whether B. and C. were entitled to 50001. each South Sea annuity stock, in which case it was necessary to resort to the general assets, or whether the lega- cies were specific; for if specific, then there being only one 5000L South Sea annuity stock, the two legatees would be under the ne- cessity of abating inter se, and dividing the fund between them. The question having been submitted to the Master of the Rolls, he de- clared that as there was only one 50001. old South Sea annuity, one only could pass by the will, which with the interest accrued since the testator's death, was devisible between the two legatees. But that decision being unsatisfactory, the legatees appealed to Lord Hardwicke, who reversed the decree, deciding that the legacies were (t/) 9 Ves. 181. (z} See 2 Ves. sen. 564. 1 Atk. 418. (c) See infra, p. 163. (6) See 1 Atk. 416. 160 Specific Legacies. [Cn. III. general, and not specific ; and he ordered the deficiency to be made good out of the general assets. (c) The case ofrfvelynv. Warded] afterwards determined by his Lord- ship, appears to be not only contrary in principle to the last, but to the authorities after stated. In that case, one of the bequests was, of 2000/. in the stock of South Sea annuities, to trustees in trust to pay the produce to A. for life, and to retain after her death 1000Z. part of the 2000/. in trust for B. but to pay the dividends to her during marriage, and after its determination, to tranfer the 1000/. to her if living, or if dead, according to her appointment." The testator also gave' the remaining 1000Z. after the death of A. to several per- sons. There was another legacy "of 1200/. of the stock called South sea annuity stock, . in trust for jB. These several legacies, Lord Hard- wicke held to be specific, from the mere circumstance (as it is pre- sumed) of the testator having been possessed of more South sea an- nuities when he made his will, than the amount of the legacies given in that fund, whence his Lordship inferred an intention in the testator to bequeath 90 much of the identical stock he then had, and not to impose an obligation upon his executors to purchase the ne- cessary quantity of stock to answer the legacies. To this, it may be answered, that if the circumstance of having stock at the time of the date of the will, be of itself sufficient to make a bequest of simi- lar stock specific, all legacies of stock, whatever their form may be, and however regardless of the fund then actually standing in the testator's name, must be specific ; a doctrine in opposition to Par- tridge v. Partridge, and the cases before stated, and also to the other authorities which' will be afterwards produced. The present case is much weaker than that ofJlshton v. Ashton,(e) referred to in it, for there the trust was to sell 60001. South Sea an- nuities, which direction of sale raised an irresistible inference that the testator meant and referred to a sum in the like annuities, which he had when his will was made, though of an inferior amount, and that he could not be so unreasonable as to have intended that his executors should purchase South Sea annuities for the mere purpose of selling again; when he, at the date of his will, was possessed of similar annuities, to which the trust could with propriety be applied. With respect to the expression " remaining," used in bequeathing 1000Z. residue of the 2000Z. South Sea annuities, it is ambiguous, and capable of being referred to annuities of the latter amount, to be purchased by the executor, as well as to those of which the tes- tator was possessed when he made his will, an ambiguity, not re- moved as in Sleech v. Thorington (after stated) by the additional words "now standing in my name." Besides, if it be true, as ap- pears from the cases, that courts of equity are always anxious to adopt constructions in favour of general and against specific legacies, to avoid the inconveniences to which the latter are exposed ; and that these courts must be satisfied by express words or mainfest intention appearing upon the will, that the testator meant to bequeath all or part of the identical stock he possessed when he made such will, be- fore they pronounce the legacies to be specific, it seems difficult to (c) Purse v. Snafilm, Ibid. 415. (d) 1 Ves. sen. 424, et vide Belt's Suppl. p. 184. Cf the testator's death, and pay there- out allowances for the children's maintenance. The Lord Chief Baron observed, that the words of the will " if I shall not have so much stock, &c." had no reference certainty to the stock he had at that time, but at some future time, and the most appropriate period that could be assigned was the death of the testator j and he con- sidered the legacy in the will as much a specific legacy as if the testator had said, "If I have a particular horse I desire it may be given to the legatee :" the reference to the corpus he remarked was clear and direct, and, if that corpus should be found among his as- sets, he gives a portion of it; referring, clearly to his possession of the thing at the time of his -death. For these .reasons the Chief Baron decided, that the- legacy was clearly specific, and must go im- mediately to the legatees from the time of the testator's death. He admitted that if the testator had not had 10,OOOZ. in the stocks spe- cified at the time of his death, it would have been in that case a general legacy beyond all doubt. Another question arose in this case, whether the legatees or the executors had the right to -elect out of what fund the legacy was to be paid. And the Chief Baron, after noticing the novelty of th.e point, remarked, mat as the exe- cutors were to make up the deficiency of the stock either in one or both, as they should think best, .they were therefore empowered by the testator to deal %vith it according to their discretion ; and he could not take that discretion away from them unless there were any danger of their abusing it to the prejudice of the infants.. 4. The next advance towards a uegular specific legacy occurs when annuities or money are given out of stock, which the testator was possessed of at the date of his will. Such bequests are notprimd facie specific in the ordinary acceptation of the term,. but range in the class of legacies of quantity in the nature 'of specific legacies mentioned in the beginning of this chapter. This, then, is a species of legacy between a general and specific bequest. The testator's intention is its basis. It assumes that the testator meant to give a general legacy, with a charge upon a particular fund for its payment, not intending its existence should depend upon the validity or con- SECT. V.] Specific Legacies. 167 tinuance of such fund,(a) for the terms of the bequest are literally complied with by sale of so much of the stock as is required to an- swer the legacy, so that it cannot with certainty be inferred from the form of bequest that the testator intended to bequeath part of his stock in specie, but as a fund generally, first to answer the legacy. Hence it would seem, that if there be nothing expressive of the tes- tator's intention, except what arises from a mere bequest of money or annuities out of the testator's stock, the legacy will not be spe- cific, but "in the nature of a specific legacy before described; (6) which rule of construction prevails with respect to bequests of money out of debts or securities, as will appear when we treat of such, lega- cies in the seventh section. In Kirby v. Pottered) A. bequeathed thus : " my intention and will by the codicil added thereto is to give to B. a legacy of WOOL out of my reduced bank annuities three per cents by my executor, within one month after my decease, for -his integrity, sobriety, and good behaviour, and deserving in' every respect; the question was, whether the bequest was general or specific 1' And Lord Alvanley, M. R. determined, that it was the former, and that B. was entitled to WOOL sterling, and not to WOOL annuities only ; observing, that whenever there is a legacy of a given sum, there must be positive proof that it does riot mean sterling money, in order to make it spe- cific : that where the phrase is " lOOQl. out of my reduced bank an- nuities," 'the sense was, that the executor should raise 1000Z. by sell- ing so much of that stock ;" and the rule was, that no legacy should be held specific, unless demonstrably so intended. In Deane v. Test,(d\(a. case of great complexity,) Lord Eldon ap- pears to confirm the last decision, so far as regards the prima facie construction to be put upon the words there used. In the case of Deane v. Test, A. bequeathed a variety of legacies of stock, in stock, out of stock, and out of the dividends of stack. The first of the be- quests was to B. for life of" the interest of 4000Z. stock in the four per cents consolidated annuities in the Bank of England." And after the death of B. he gave *' the above 4000L consols annuities which he mentioned before, the fund for paying B.'s annuity" to the chil- dren of his sister C. equally, with benefit of survivorship, among them, if any died under twenty-one. And he in like manner gave to those children " an additional sum of 2000L more, to be paid out of the four per cent consolidated annuities in the Bank of England," in equal shares, &c. Tne question was, whether these legacies were specific or general ? An.d Lord Eldon determined that they were general, saying, that he was authorized by the case of Kirby v. Potter, to declare that, upon the words used by this testator, the legacy to be paid out of the four per cent annuities ought prima facie to be taken as a bequest of a sum of 2000. sterling, with a direction out of what fund it was to be discharged. In the following particulars Lord Jllvanley seems to have express- ed himself too forcibly in the case of Kirby v. Potter, viz. " that whenever there is a legacy of a given sum, there must be positive proof that it does not mean sterling money in order to make it spe- (a) Sadler v. Turner, 8 Ves. 617, 624, stated infra, 171. (b) Ante, p. 165. .(c) 4 Ves. 748. (d) 9,Ves, 146, 152. 168 Specific Legacies. CH. III. cific." To this, it is presumed, Lord Eldon alluded in those passa- o-es of his judgment in Deane v. Test, where he qualified his appro- bation of Kirby v. Potter, by such words as "without carrying it to the extent of Kirby v. Potter ;"(e] " and I use the authority of Kirby v.Potterno further than that;"(/) for his Lordship thought less than positive proof of intention would be sufficient to repel the primn facie construction of the words, viz. such an intention appearing upon the whole will, as to satisfy the mind of a judge, that by the words " out of, &c." the testator did not mean to give a money legacy, but the "whole or part of. his identical stock or annuities specifically. (g) His Lordship admitted, that by such words the prima facie intention was to give a money legacy : a settled rule of construction to which, so qualified, it was wholesdme to adhere, " until driven out by strong, solid, and rational interpretation, put upon plain inference drawn from the rest of the will. "(h). He then observed, that minute criti- cisms would not Vary the primd facie rule of construction : and he expressly guards against " going upon conjecture met by conjecture, and plausible argument met by plausible argument," to alter the prima facie meaning of the words. now under consideration, (fy From the decrees pronounced in the last. cases by two such able Judges, the following conclusion may probably be drawn as a guide upon questions of this nature : That a sum of money bequeathed out of particular stock or an- nuities, is primd facie to be adjudged a money legacy, but liable to be considered a specific bequest of. so much of the identical stock or annuities which the testator had, when a clear- intention appears upon other parts of his will, that he so intended ; of which inten- tion we shall now proceed to give some instances, first remarking, that there seems to be no difference whether the leg'acy be of money out of stock, or of a personal annuity out of the dividends of stock.(Jk) In Drinkwater v. Falconer,(l) .#, having 400Z. new South Sea an- nuities, and 4001. East India bonds, bequeathed- " to his friend and servant B. 101. per annum for life, to be paid out of my dividends of 4001. in the joint stock of South Sea annuities, now standing in the Company's books in my name, by half yearly payments, and he thereby charged his said annuity, stock with payment thereof: and I give to C. my 4001. East India stock, and my 4001. joint stock in South Sea , new annuities^ .(subject 'to the payment of the said an- nuity), to D. &c." And Sir Thomas Clarke, M. R. decided, that all those legacies were specific. In the last ease, the testator clearly showed -an intention upon the face of his will, specifically to dispose of his identical East India stock and South Sea annuities, from the manner in which the whole were bequeathed ; but if the legacy to J3. had not been .explained by the legacy to _D. it would seem that from the form of the bequest to B. it must have been considered general, according to the cases of Kirby v. Potter, and Deane v. Test , before stated,(m) viz. of an annuity for life, the dividends of the stock being .merely pointed (09 Ves. 152. (/) Ibid. 154. () See^tf. General v. Grote, 3 Meriv. 316, stated infra. (A) 9 Ves. 152. (i) 9 Ves. 154. () ^bid. 153. (/) 2 Ves. sen. 623. (m) Ante, p. 167. SECT. V. Specific Legacies. 169 out as the fund out of which it was first to be paid, and in this respect resembling the case of Mann v. Copland, before also stated, (n) Again In Morley v. Bird,(o) the testator gave all his money in the stocks, mortgages, debts, goods, chattels, and every thing he died possessed of, to B. for ever, upon condition that he paid to the four daughters of C. " 4001. out of TOO/, now lying in the three per cent consolidated;" and the legacy of 400/. was held to be specific. The last decision may be ascribed to the intention to be inferred from the circumstance of the legacy of 4001. being given out of the TOO/, three per cent consols, specifically bequeathed to B.; the Court probably considering the 400/. as so much excepted out of the 7001. annuities, viz. a division of the identical TOO/, annuities, between B. and the children of C. and similar to the case of Long v. Short before mentioned. (p) 5. The instances which have been produced of general legacies out of stock or annuities, were those where the legacies were ex- pressly given out of such stock or annuities. But, when they are not so expressly given, they will be equally general, although stock or annuities be mentioned or referred to, as the then or the supposed then situation of the money bequeathed, it being apparent that the thing given is not the identical stock or annuities, but the money; and that the circumstance of the money being or continuing in the stock or annuities, is no ingredient in the essence of the bequest, nor a condition upon which it was intended to depend.(g) As proof of this In Raymond v. Brodbelt,(r) A. late of Jamaica, reciting in his will, that he had remitted several sums of money to England, which he had directed to be invested in government funds, and which he believed had been laid out either in three per cent bank annuities, or in three per cent consols ; and also that it was his intention that the provisions for his younger children should be by equal portions of such bank annuities in which the said monies had then been invested ; if therefore the sums he had then invested or might do before his death, should not be sufficient for the purposes therein mentioned, he authorized his executors to invest a sufficient part of his estate in the purchase of so much more bank annuities of the same kind as he had then already purchased, as would be sufficient to answer the purposes in his will, and after mentioned. A. then bequeathed to his executors 10,000/. current money of Jamaica, invested, or to be invested, by them in the public funds, pursuant to the same power, upon trust to receive the dividends, and apply a sufficient part of them for the maintenance of his daughter B. until marriage, or her age of twenty-one, and from and after that age or marriage, upon trust, to receive the interest and dividends of the said 10,000/. and pay the same to B's separate use. Arid after settling the 10,000/. and interest upon the children of B. and, in the event of none, upon her husband, being the survivor, he directed that if his daughter died under age and unmarried, the 10,000/. was to become (n) Ante, p. 153. 2 Mad. 223. (o) 3 Ves. 628, 631. (fi) Ante, p. 152. 1 P. Will. 403. (?) See infra, sect. 7. pi. 2. p. 179. (r) 5 Ves. 199. VOL. I. Y 170 Specific Legacies. [Cn. II. part of his residuary estate. The testator also bequeathed to his executors another *wm of 10,OOOZ. of current money of Jamaica, in- vested in the public funds pursuant to the said power, upon the same trusts, in favour of his daughter C. her children and husband, if she left one, as were declared in favour of his daughter B.; with a similar direction that the last mentioned 10,OOOZ. should fall into the residue if C. died under age and unmarried ; which residue he gave to his son D. and appointed him executor. Prior to *the date of the will, the testator had made several remittances to England, to be laid out in bank three per cent annuities, which were accordingly invested. He also after his will, made other remittances, which were placed out upon government securities, and at his death there were standing in his name 15,500f. three per cent consols, and 795J. four per cents. Upon the bill of the legatees and their husbands against D. praying the transfer of a moiety of the 15,500]?. three per cent consols and a moiety of the 795Z. four per cents to the ac- countant general, in trust, for B. during her life, and at her death, upon the other trusts of the will, and that D. might lay out so much of the testator's personal estate as, with the value of a moiety of the stock, according to the prices which the same bore at the time of his death, would be equal to the sum of 10,OOOZ. Jamaica currency, in the purchase of three per cent consols, upon the same trusts, and praying similar relief on behalf of C. and her husband; it was insisted by D. that, according to the true construction of the will, the amount of the current money which was invested in 15,500?. three per cent consols and 795Z. bank four per cents, was to be con- sidered as applied in part payment of the legacies, and therefore that the stock ought to be received in part satisfaction of them, as and for the sum of 16,377f. 7*. 6d. Jamaica currency, the amount of the current money, which was laid out in the purchase of such stock. But Lord Rosslyn said there was nothing fluctuating in either le- gacy; and that each must be 10,OOOJ. currency; that the legatees could have neither more nor less. " Suppose (continued his Lord- ship) the investments (the value of the stock purchased) had exceed- ed 20,0001. currency, the legacies would have been limited. If the stock had risen to par, the legatees could not have more than 10,OOOZ. currency. If the legacies were specific, the value of the stock of necessity must be ascertained by the value at the death of the testator. But there is nothing specific in them. They are lega- cies of 10,0001. currency each. The legatees never can receive more, nor I apprehend less. The Master was directed to inquire what sum of money would have been necessary to have invested in the three per cents, to have paid 10,OOOJ. currency to each of the legatees at the time of the testator's death, and to compute what was due to the plaintiffs upon their legacies with interest, according to such currency, to the time the whole investment was made, upon such sum as the Master should find would have been necessary for the investment." It is obvious from the whole will in the last case, that the testator meant his younger children money legacies of 10,OOOZ. each, Ja- maica currency, which were to be invested in the English funds. The bequests were of money, not of stocks, as also appeared from SECT. VI.] Specific Legacies. 171 the directions, that if the stock purchased with the testator's own remittances during life, should not be sufficient to answer the lega- cies, his executors should purchase the deficit of stock with his general personal estate. The intention, therefore, of the testator being clear, to give to such legatee 10,OOOZ. worth of stock, accord- ing to the currency of Jamaica, his afterwards mentioning the stock in which the money was, or was supposed then to have been invest- ed, was not with the intent of making those legacies depend upon the contingency of his having stock at his death sufficient to answer them, but merely that the stock which had been purchased by him whilst living, should be the primary fund for their payment, so as to give these particular legatees a lien upon it in preference to other general legacies; in which sense alone those legacies were specific, according to the proposition laid down by Lord Rosslyn in his judgment, " that there is a general legacy,, and attended with the qualifications of a specific legacy, yet with an appropriation upon part of the property, and that is the case here." Similar to the last case, is Lambert v. Lambert,(s) determined by Sir William Grant, in which A. bequeathed as follows : " to B. the sum of 12,OOOZ. of my funded property, to be transferred,(t) in the name, or employed as he shall deem most beneficial for his interest, by my executor, &c. To C. I also bequeath the sum of 12,OOOZ. to be enjoyed in every respect as in the case of B. &c." And his Honour decided that the legatees were entitled to the worth of 12,OOOZ. each, out of this property, or to have it divided amongst them, if not sufficient to pay those sums, but if there were a surplus, then that it belonged to the general estate of the testator. SECT. VI. COLONIAL PROPERTY. The like principle applies to cases where a person, having pro- perty in England and India, gives pecuniary legacies, but postpon- ing their payment until his India property should be remitted to England, and realized or invested in the funds; such postponement will not make the legacies specific, so as to depend upon the cir- cumstance of the testator having at his death property in India to transmit for realization or investment ; for the intention was only to consult the convenience of his estate, and not that the legacies should fail if he left no funds in India for remittance; as they would do, if specific, (i. e.) consisting of so much of the testator's property in India to be remitted and realized or invested. These points will appear from Raymond v. Brodbelt before stated, and the following case : In Sadler v. Turner, (u) A. in disposing of his property in the East Indies, gave several legacies, among which were two in the follow- ing terms: "I give to A. and B. (married women) 1000Z. each, for their sole use and benefit, which legacies 1 direct to be paid so soon as my property in India shall be realized in England" And Sir Jlilliam Grant was of opinion that those legacies were general, there being nothing to make them specific out of the estate in India, (s) 11 Ves. 607. and see 2 Bro. C. C. 18. 21. 1 Cox, 204. 4 Ves. 159. () For the effect of a direction to transfer, see Sibley v. Perry, su/ira, p. 163. (u) 8 Ves. 617. 624-. 172 Specific Legacies. [Cn. VI. and dependant upon their being sufficient property in that country at the testator's death. It is observable, that the legacies are simply of sums of money. There are no words nor plain intention to give to the legatees any particular parts of the India property in preference to other portions of it. The testator meant no more in the direction of payment than to consult the convenience of his estate. The Court, therefore, justly observed, that in the absence of any thing to make the legacies spe- cific, they must be general, and entitle the legatees to satisfaction, although all the property in India belonging to the testator should have been transmitted to England during his life. And although a testator, having property in England and India, give legacies to the persons resident in each place, with a direction that they should be paid out of the assets in the respective countries yet such a direction will not constitute the legacies specific ; i. e. confine each class of legatees to the funds in the country where they reside ; but the whole of the assets, after payment of debts, whether in England or India, will be liable to their demand : the di- rection of payment by the testator being nothing more than what the law would have done if he had been silent on the subject. Such were the opinion and decree of Lord Kenyan, M . R. in Kirkpatrick v. Kirkpatrick (x). But legacies of India property will be specific in all cases, where such legacies would be so, if of English personal estate ; and con- sequently, the same observations apply to them, as are made in re- gard to English legacies in this chapter under its several sections. It shall therefore suffice to produce in this place but one instance of specific legacies of property in the West Indies. In Nisbett v. Murray,(y] A. after bequeathing three specific dis- positions of lands and slaves in the Island of Jamaica, gave the re- sidue of his real and personal estates in the said island, to trustees to sell, and remit and lodge the proceeds and all other monies be- longing to his estate in safety in England ; which proceeds and monies he bequeathed in sums currency to several persons. It was determined, that the Jamaica property was specifically bequeathed. And according to Page v. Leapingwell,(z) before stated,)(a) the several legatees would be entitled to the whole fund, in exclusion of other legatees, who could only resort to the testator's assets in England. Having considered what forms of bequest will and will not have the effect of passing to the legatee, the specific stock or annuities which the testator was possessed of at the date of his will, the sub- ject next proposed to be treated upon, is SECT. VII. What will amount to Specific Legacies of Debts* by Simple Contract, or secured upon Mortgages, Bonds, &c. The distinctions which have been made in the last section equally apply to the present subject, and especially the difference between a regularly specific legacy of a debt itself, and a bequest of a sum of money with reference only to the debt, for payment of the lega- cy Cited, 4 Ves. 153. and see 5 Ves. 156. (y) 5 Ves. 150. (z) 18 Ves. 463. (a) Ante, p. 154. SECT. VII.] Specific Legacies. 173 cy ; this being a bequest in nature of a specific legacy, of which in- stances have been before given. (6) The distinction between the two kinds of specific legacies is thus expressed by Sir William Grant : " The same legacies may be specific in one sense, and pe- cuniary in another ; specific, as given out of a particular fund, and not out of the estate at large ; pecuniary, as consisting only of defi- nite sums of money, and not amounting to a gift of the fund itself, or any aliquot part of it."(c) The intention of testators expressed or inferred from their wills, is the only requisite in these cases ; so that whether a bequest is to be adjudged a specific disposition of an identical debt, or the debt is to be considered merely as the fund out of which it is to be first satisfied, and the legacy to be paid at all events, although such fund fail, is a question resolving itself into the testator's intention. When the intention is not expressly declared, but to be inferred from the context of the will, the infer- ence must, as we have seen,(d) be found upon a strong, solid and rational interpretation put upon, and a plain inference drawn from such will. Minute criticisms, grounded upon consequences drawn from minor circumstances or conjectures, or plausible arguments, will not have the effect of making the bequest specific, when the form in which the legacy is given is general. (e) These observations are not only supported by the authorities stated in the last section, but by those which follow. And, 1. What will be a specific bequest of a debt or security. Upon this subject the following rule of construction will, it is presumed, be found correct ; that when the gift of the legacy is so connected with the debt or security, as that the gift of the Jegacy and of the debt or security are the same, the intention to give no- thing more than the identical debt or money due on the security is apparent, and consequently, the legacy will be specific. First, then, if I bequeath to B. " the money now owing to me from A." or " in the hands of A, ;"(/) or, secondly, if A. be indebted to me on bond, and I bequeath to B. " the money due to me on the bond of .#.," or " the interest arising from or upon the bond of A. to B. for life, and to C. the principal of the said bond ;" or, thirdly, if I bequeath to B. " my mortgage," or " my East India bonds or bond,"(g) or " my note owing from D." or " my note in the hands of E. ;"(&) these several bequests will be specific, because in the first class nothing is given distinct from the debt owing by A., nor in the second, from the identical money and interest secured on the bond of A. ; and in the third, the securities themselves are specifically given. In Ashburner v. M'Guire,(i) the testator bequeathed to his sister B. " the interest arising from her husband C.'s bond, to him for principal, 3500Z. sterling," for life, to her separate use, " amounting to 175/. sterling per annum. Item, he bequeathed the principal of the said bond on the decease of B. to her four daughters, &c. to be equally divided amongst them." And Lord Thurlow, after great consideration, determined, that the bond was specifically given ; that Ante, p. 166. (c) 3 Ves. & Bea. 5. (d) Ante, p. 168. 7 Ves. 523. 529. See ante, sect. 4. p. 155. and Ellis v. Walker, Ambl. 309. 2 Ves. sen, 563. (A) Ibid. 623. (0 2 Bro. C. C. 108. ^ 174 Specific Legacies. [Cn. III. it was legatum debiti ; his Lordship observing, that when the testa- tor made his will, 35001. were due to him from C. by bond ; that he meant to relinquish it for the benefit of the family, not by way of release to the husband, but by way of settlement; and that this debt, whether it turned out well or ill, should go to the family ; the in. terest to his sister for life, the principal among her daughters; and consequently the legacy must be considered specific. UpOn the authority of the last case, Lord Mvariley, M. R. decid- ed that of Chaworth v. Beech.(k] There A. by codicil bequeathed to B. in the following manner: "Whereas I am entitled to 8000J. vested in the bank of, &c. for which sum, payable with interest at three per cent one month after sight at JV., I have the promissory note of the said bankers, now I give and bequeath to my friend B. who lives with me, the before-mentioned sum of 8000?." Before the codicil was made, A. thus indorsed the note : "I give this note to B. which is along with me, for the love and regard I have for her." Upon a question whether this bequest was general or specific, it was dertermined that the legacy was specific, in consequence of the in- dorsement made upon the note ; his Honour observing, " that when he read that and the codicil, the latter was nothing more than a re- cognition of the indorsement (testamentary) made upon the note ; and with all the anxiety he felt not to hold a legacy specific, unless it were demonstrably so, it was impossible not to say that this testa- tor meant to give the note itself, with all the interest due upon it. But if there had been no indorsement on the note, then even upon the will itself, and the case of dshburner v. M'Guire, (which is the true rule upon the point,) he must hold that the legacy was that note, and nothing else." The last case was immediately followed by Innes v. Johnson,(l) which was to the following effect : A. bequeathed to his sister C. the interest of 3001. upon bond for life, and after her death, he gave to her daughter D. the interest then due upon the said bond, to- gether with the principal, to be at her disposal at twenty-one. The testator was possessed of two bonds ; one for securing 3001. and the other 200Z. And Lord Alvanley was of opinion, that the gift was a specific legacy of the bond for 3001. ; the words " said bond" fixing the bequest to that identical security which the testator was possess- ed of at the date of his will. Again, In Pitt v. Camelford,(m) the form of bequest was thus: A. by codicil, reciting that he was possessed of about IQOOl. navy bills, gave the same to his executor, to receive the interest, and to lay the same out in the funds to such uses as his daughter B. should appoint. Lord Thurlow said, that if ever there was a specific legacy, this was so, and decreed accordingly. So also in Stanley v. Potter,(n) A. after reciting in his will that he had lent B. 20001. who had executed to him a heritable bond, charging certain lands, &c. with the payment of it and interest, or an annual rent of 1001. for the same, gave and devised that all the said annual rent, of 100Z. sterling, or such annual rent, less or more, as by the law for the time being should correspond to the said prin- (*) 4 Ves. 555. (A 4 Ves. 568. (m) 3 Bro. C. C. 160. (n) 2 Cox, 180. 4 Ves. 559. SECT. VII.] Specific Legacies. 175 cipal sum of 2000Z. and all the said lands, &c. in security to trustees for ninety-nine years, in case his daughter B. so long lived, upon trust to pay to her, or her appointee, for life, an annuity of 60Z. ; and after the end of the term, and in the meantime subject thereto to the use of C. for life, &c. The testator directed his trustees, if the debt should be discharged, to invest it in the purchase of lands to be set- tled upon the trust and uses before mentioned and referred to as to the yearly rent, and to place the 2000Z. till such purchase could be made, on government securities, and pay the dividends to the per- sons who would have been entitled to the rents. The testator re- ceived the debt himself, and delivered up all securities; and the question was, whether the bequest was specific, and consequently adeemed. And Lord Thurlow decided in the affirmative, referring to the case of Jlshburner v. M'Guire. The cases which have been cited are instances of bequests of the securities with the money due upon them. They are strict forms of specific legacies, and the intention to bequeath specifically could not be more clearly expressed. So also in Gillaume v. Adderly,(o) the testator bequeathed " the sum of 3348Z. 3s. 4d. sterling," to his father and mother for their joint lives, and during the life of the survivor, "which said sum" he expressed " to be in two bills drawn by the presidency of Fort Wil- liam, Bengal; one for the sum of 1125^., the other for 2223Z. 3s. 4d., being the account of money paid into the treasury of Fort William, on account of the investment of 1782 and 3, which bills are now lay- ing for acceptance at the India house, in London" Lord Eldon said, there was no doubt that the legacy was specific ; for, continued his Lordship, the testator, taking notice that the bills, in which that legacy was invested, then lay for acceptance at the India house, and adverted to the fact that the identical sum would be received, it was impossible to say that it was not Ugatum debiti. It appears impossible to reconcile the case of Coleman v. Col&- man(p) (a decision of Lord Rosslyn,) with the authorities before stated. In that case, A. reciting in his will that he was possessed of a bill of exchange drawn in his favour upon the East India Company, and accepted by their order, and entered in their books for the sum of 1500/., bearing interest at three per cent, gave the interest of the bill to his wife for life, and directed that after her death the same should be sold, and the money equally divided among several nephews and nieces, with survivorship among them if any died before his wife. And Lord Rosslyn determined that this was not a specific legacy. That decree was founded upon an inference, which his Lordship drew from the manner in which the bill of exchange was settled by the will, viz. that the testator did not mean so to give it, that receipt by him of its amount, during his life, should disappoint the bequest. But this inferential argument was equally applicable to the case of Pitt v. Camelford, before stated, (q) and yet Lord Thurlow said, that if ever there was a specific legacy, that was so; an observation which maybe transferred to the present case. Besides, Lord Rosslyn's in- ference was drawn in opposition to the express form of the bequest, (o) 15 Ves. 384. 389. (/z) 2 Ves. jun. 639. . (?) See preceding page. 176 Specific Legacies. [Cn. III. which was strictly specific ; and if the testator's language be to have any effect, then it appears from his own expressions that his inten- tion was to give the bill specifically, an intention which being so plainly declared ought not (as it is presumed) to have been con- trolled by mere inference drawn from the settlement of the property. Under these circumstances it is conceived that Coleman v. Coleman ought to be considered at the utmost but of very doubtful autho- rity.^) In the next case, the objection raised to the legacy's being spe- cific was its being a bequest of the money to be received on the security; to which Sir William Grant answered, that "such was the case of every bequest of a debt." It is not, therefore, necessary to render the legacy of a debt specific that the security itself should be given, but it is sufficient if it clearly appear that the money due upon such security was intended to be the sole subject of the gift. Thus in Fryer v. Morrises) the form of the bequest was as follows: " I bequeath to B. all such sum and sums of money as my executors may, after my death, receive on the interest note of 4001. given to me by Messrs. Cross fy Co., bankrupts, Bath, either as a dividend under their commission in part thereof, or which they, my executors, may receive from the representatives of the late J. C. or otherwise in re- spect of such note, in trust for all the children of D. who shall attain the age of twenty-one, equally." Sir William Grant determined that this amounted to a specific legacy of the money due upon the note. When the question is, whether a testator intended specifically to dispose of part of a debt owing to him, the same observations apply, as when the point for decision is, whether he intended specifically to bequeath the whole of a debt due to him. He must either ex- press that the legacy is part of the debt, or he must use language sufficiently clear to show, that the subject bequeathed was meant to be parcel of the identical sum due to him. With respect to the first of these remarks, A. bequeathed in the following manner: " to my grand-daughter B. the sum of 40l. being part of a debt due and owing to me for rent from C., she allowing what charges shall be expended in getting the same. Item, I bequeath to my grandsons, _D. and E. the rest and residue of what is due and owing to me frorn the said C., which is about 401. more, in equal shares, and they allowing charges as afore- said." These were held to be specific bequests of the debt due from C.(f) And in relation to the second remark, the case of Ellis v. Walker,(u) proves, that unless the testator had clearly shown that he intended to bequeath the identical sum due to him upon the last settlement of partnership accounts by the explanatory words " if I do not draw it out of trade," the form of bequest to B. of 20001. Jl And see Bromdon v. Winter, Ambl. 57. () 9 Ves, 360. Ford v. Fleming, 1 Eq. Ca. Abr. 302, pi. 3. not so correctly reported in 2 P. . 469. and see Rider v. Wager, 2 P. WU1. 329. (u) Arnbl. 309. and stated supra, p. 155. As to what expression, short of plain declaration will be sufficient to make the legacy specific, see 2 Ves. sen. 561. 564. Forrest. 152. 2 Bro. C. C. 18. 3 Bro. C. C. 431. SECT. VII.] Specific Legacies. 177 " which appeared to be due to the testator on the last settlement in trust, &c." would not have been a sufficiently clear manifestation of an intent to make the legacy depend upon the existence of such a fund, as well from the nature of the fund, as the manner in which the legacy was given, viz. of a sum of money ; for the clause that immediately followed the gift was merely descriptive of the pro- perty out of which the legacy was to be paid, (i. e.) what, if any thing might be due to the testator in respect to his share of the partnership stock, a fund quite contingent, as depending upon the result of the partnership accounts, and not a substantive indepen- dent bequest of such share itself. Such was the reasoning of Lord Hardwicke, and who expressed his opinion, that the legacy of 2000Z. would have been general, except from the marked words, " if I do not draw it out in trade." But the case of Philips v. Carey(x) must be noticed, which de- cided that a bequest was specific, upon intention inferred from words not affording that plain unequivocal evidence of intent, which, as we have seen,(y) is required to render a legacy specific which in form is general. In that case the testator gave a legacy of 1000Z. to B., payable at the age of twenty-one, or marriage, to be retained in the hands of A. (who had money of the testator in his hands as his banker.) And it was held by the Master of the Rolls, that this legacy, if pecuniary, would only carry interest from the time of payment; but that by the manner of bequeathing it, the WOOL was severed from the re_st of the estate, and especially appropriated for the benefit of the legatee, so that it, being specific, should immediately carry interest. The reader should be apprised that the last case was said by Lord Thurlow, in Jlshburner v. M l Guire,(z) to be nonsense, and to have been frequently denied ; it was, however, referred to with approba- tion, by Lord Hardwicke in Heath v. Perry, (a} who thus notices it: " It was a sum of 1000/., and part' of it out of a specific debt due to the testator; therefore, this was a specific legacy ; and whether the whole or part of a debt due to the estate be given as a legacy, it is equally specific, and therefore a distinct tree and distinct fruit." When two such great Judges, so diametrically differ, reference must be had to principle and authority, to discover which of the two is right. It is settled, as before observed,(6) that strong, solid, and rational interpretation put upon, and plain inference drawn from, the will are necessary to repel the prima facie construction of a bequest being general when given in that form. Lord Eldon has decided, that inference arising upon equivocal expressions is insufficient for that purpose. (c) Then, to apply this test to the present case the balance in the hands of the testator's hanker was fluctuating; it was not likely, therefore, that he intended to make the legacy depend upon that contingency. (d) In addition to this consideration, he be- queathed to B. a sum of 10001. in its form general, with a direction (JT) Stated in the argument of the case of Lawson v. Stitch, 1 Atk. 507. (y) Ante, p. 168. (2) 2 Bro, C. C. 113. (a) 3 Atk. 103. (b) Ante, p. 168. (c) Sibley v. Perry, 7 Ves. 529. and see his Lordship's observations, 9 Ves. 152. (.'* meaning, as if she had said all my goods, (to wit) my wearing apparel ; yet his Lordship said, that wearing apparel must be construed the same as, and wearing apparel ; and it was his opinion, that as the words stood in the will, D. only in- tended to give her wearing apparel, ornaments of her person, house- hold goods and furniture, and no other parts of her personal estate ; and that the ornaments of her person were meant to be given, ap- peared as well from the latitude of the expression, " goods and wear- ing apparel," as from the exception of the gold watch. His Lord- ship therefore, decreed according to the opinion which he had ex- pressed. In the last case it is observable, that Lord Hardwicke considered it material, in showing the testatrix used the word " goods" in a res- tricted sense, that she afterwards gave a money legacy to her exe- cutor. This circumstance has also been dwelt upon in other cases, as clear manifestation of intention to confine the import of the term " goods," so as to prevent it passing ready money ; and the construc- tion appears reasonable and conclusive, that when a testator be- queaths to a person a money legacy, to whom he also bequeaths all his goods and other things in a particular place, he could not mean by those expressions to pass his ready money there, since he had already expressly given to the same person so much of that spe- cies of estate as he intended for him. Thus in Roberts v. Kuffin,(b] A. bequeathed to his daughter " all ~oods and things of every kind and sort whatever, which should be found in her closet at his death." The question was, whether 451. Os. Id. in money, found in the closet at that period, would pass to the daughter 9 And Lord Hardwicke said, that if this will had been construed strictly in law or equity, he was of opinion it would not have carried the 45Z. and Id. to the daughter ; for in the outset of his will, he gave her a money legacy, which must be presumed to (z) Ante. p. 198. (a) 3 Atk. 61. (b) 2 Atk. 113. and see Porter v, Tournay, 3Ves. 311. stated infra. SECT. I.] under the Words of the Will. 201 be the whole he intended her by way of money legacy ; besides, said his Lordship, in the clause in dispute, goods were first named, therefore the subsequent word things must be confined to household goods, and to what was of the same species, for it would be unnatu- ral to extend it to money. A closet, too, was a. very improper place to refer to for money. The testator would have certainly mention- ed cabinet, or bureau, or any other thing where money is usually kept, if he had intended a further bequest of money ; but by refer- ring to a closet, it is reasonable to believe he meant furniture only, which the daughter made use of in the closet. With the last' may be classed an anonymous case, reported in Finch's Precedents in Chancery,(cJ in which B. bequeathed to his wife 12001. in money and " alj the goods and chattels, plate, jewels, and household stuff, and stock upon the ground, in and belonging to his house in JV. :" in which house there was 40C/. in money. The question was, whether this last sum passed to the wife under the above words *? And it was decreed that it should not ; for 4001. was a considerable sum of money, of which the testator could not be supposed ignorant ; and that had he intended the money should have passed, he would not have connected it with the general words all his goods and chattels, but at first would have given to his wife 16001. The same .principle upon which the last several cases were found- ed, produced Lord Thurlow's decree in the cases next stated ; in which he decided, that a specific bequest of cabinet curiosities, nam- ing some of them, as gems, medals, coins, &.c. concluding with the general words, " and other valuable things,", would not pass ar- ticles used or. prepared to be worn by the testatrix, viz. ornaments of her person. But that those general words were to be confined to things ejusdem generis with those previously described. The case alluded to is Cavendish v. Cavendish,(d) in which A. bequeathed to B. her collection or cabinet of curiosities, consisting of coins, medals, gems, and oriental stones, and other valuable things, hanging shelves, snuff boxes, bust of C. on .the stair case, her Flo- rentine cabinet of oriental stones in the second room, and the Japan cabinet in the bed chamber, formerly belonging to D. The ques- tion was, whether a diamond solitaire, a pair of ear-rings, a bow-knot, and some pearls, ornaments of JlSs person, passed to B. And it was in proof for B. that those articles were frequently shown as parts of ./?.'* cabinet, and included in the inventory of her curiosities. It was also in evidence against B.'s claim, that in trade a distinction in sense prevailed between the words "gems" and "jeweJs." That the latter meant precious stones set and prepared for wear, and the former, stones kept for curiosity only. The Master having reported that the above articles were occasionally worn by the testatrix, Lord Thurlow determined that they did not pass to B.; observing, that things to pass under the will must be ejusdem generis with those ex- pressly devised ; but that ear-rings and other ornaments of the per- son were parts of the personal estate, and not specimens of natural curiosities. But although it be the settled doctrine of a court of equity, that (c) Page 8. (nv. Godslave. Although the expressions "stock upon, or belonging to my farm," generally mean stock in husbandry, they may nevertheless also ex- tend to, and pass stock of a different description, when the inten- tion clearly appears that they should do so from the words of the be^ quest, as happened in the case Brooksbank v. Wentworth ;(*) in which ,i. bequeathed to B. for life, all his household goods, cattle, corn, hay, implements of husbandry,, arid stock belonging to his house, messuage, farm, and premises ; and also such messuage, farm and premises. Lord Hardwicke determined, that a malt house being included in the lease, the stock in the malt trade passed to B. ; for his Lordship considered that as the words of the bequest extended to all stock belonging to the house, farm and premises comprised in the lease, the malt house being so included, the stock used in the malt trade necessarily, and in unison with the testator's intention, passed to B. With respect to the word " effects," it is equivalent to "property" or "worldly substance." Standing alone, therefore, or unconnected with particular species of chattels, it will pass the whole of the tes- tator's personal estate ;() but when it is preceded and connected with words of narrower import and the bequest is not residuary, it will be confined to species of property ejusdem generis with those previously described. An instance of this occurred in Rowlings v. Jennings, (u) In that case .#. bequeathed to his wife B. an annuity of 200Z. part of money he then had in bank security; and thus proceeded; " toge- ,c %' , (0 3 Atk - 64 - Ed - b y Sanders. (015 Ves. 507. Cowp. 304. 6 Mad. 119, Hearne v. WtggintQn, Henderson v. Farbridge, 1 Russ. 479. (u) 13 Ves. 39-46. See also Sutfon v. Sharp, 1 Russ. 146. SECT. I.] under the Words of the Will. 211 ther with all my household furniture and ' effects' of what nature or kind soever that I may be possessed of at the time of my decease." The residuary personal estate, being otherwise undisposed of, was claimed by B. under the words " effects," &c. But Sir William Grant determined that the claim could not be sustained, observing that as part of the property was particularly given to B. the word " effects" must receive a more limited interpretation, and must be confined to' articles ejusdem generis, with those specified in the pre- ceding part of the sentence, viz. household furniture. But in Campbell v. Prescott,(x) the Court would not confine the import of the word " effects" to articles ejusdem generis with those preceding it, and for the reasons after mentioned. There the bequest was of-" all the testator's sugar-house, cupola, and merchandize, stock with jewels, plate, household goods, furniture, and all effects whatsoever." The next of kin claimed the general residue as un- disposed of, there being no other words to comprise it. But the same Judge, who decided the last case, determined, that the surplus passed by the word " effects." It is obvious that the terms of the above bequest were residuary, and that the testator meant to make a general disposition of his per- sonal estate, in doing which, he,- (as is usual,) merely enumerated some of its particulars, concluding in the extensive language of " all his effects whatsoever." There was no reason, therefore, in this, as there was in the preceding case, to restrain upon inference of inten- tion the natural import of the term " effects," to- particulars ejusdem generis with those previously enumerated. A similar instance occurred in the case of Michell v. Micfiell.(y) There the testator devised to his two daughters a house and pre- mises ; also, a garden and orchard, and " all his plate, linen, china, household goods and furniture, and effects that he should die pos- sessed of;" making no other disposition of his general personal estate. The Court held that the word effects was in a sense detached from the. preceding parts of the sentence, and was used by the testator to include the whole of his personal property. Or in other words, the testator adopted the term " effects" as the most comprehensive ex- pression he could devise to include the disposition of all his person- al estate. As to what will pass to a specific legatee by the word " utensils," it should seem that the expression will embrace every thing which is necessary for household purposes, or applicable to the trade or mystery, to which the term has reference. In Dame Latimer^s case, shortly reported in Dyer,(z) it appears to have been the. opinion of the Judges that plate or jewels would not pass by that general term. The principle must have been, that plate being a luxury, did not fall within the ordinary use and acceptation of the word utensils; a rea- son which equally applied to jewels, that were ornaments, and of great value, and more suitable to the person and dress of the inha- bitant, than for the necessary occupation of the dwelling house. It is, nevertheless, presumed, that if a testator clearly showed an inten- tion to include plate and jewels in the word " utensils," they would (jc) 15 Ves. 503-507. (y) 5 Madcl. 69-71. (z) P. 59. pi. .15. nights of Specific Legatees, [Cn. IV. Nvit.(f') Suppose then lie bequeathed to B. " all the utensils in hi* bouse, Wp< hi* silver tankard and his diamond ring." By the exception, it manifestly appears that he meant to give such of the same kinds of property in the house as were not excepted, so that it is conceived upon the principle ofHotham v. Sutton,(aa) that all the other plate and jewels would pass to B. The term " money" will include bank notes, (which are consider- ed money,) ready money, and probably notes payable to bearer, and Exchequer bills and bills <5f exchange, indorsed in blank, for the reasens before stated,(6) but not choses in action, as bonds, &c. or receipt for government stocks. Accordingly, in a bequest of all the testator's money in his house at A., bank notes and ready money will alone pass, although he may leave in it mortgages, bonds, or receipts, for government annuities. (c) Nevertheless, .if it appear from the context of the will, that the testator intended by the word " money," to include securities for money, it is presumed, for the reason stated in considering the import of the word " utensils," that such inten- tion will prevail, and the securities pass accordingly. Public stocks or funds will, it shduld seem, from the case of Bes- coby v.Pack,(d) pass by the words "securities for money;" but it appears doubtful whether they would include bank stock, that being property wherein the owner is interested as a partner in a public trading company. The case of Dicks v. Lambert,(e) was cited in Bescoby v. Pack, but seems not to have removed the doubt upon the mind of Sir John Leach, V. C. In that case the testator bequeathed to his nephews and nieces, who should be living at his wife's death, 50/. a piece out of the securities he then had by him. At his death the testator was only possessed of 3SOOZ. four per cent bank annuities, a mortgage for 140/. and 20Z. upon bond, which could be called securities: the mortgage and bond being insufficient to pay all the legacies, Lord Loughborough held that under the word " securities" the testator had included the bank annuities. And as to " medals," what will pass by the word to a specific lega- tee, besides pieces of metal answering the literal description, it should seem that if current coin be curious pieces, and are usually kept with medals, the coin will pass with them under the description of medals, since medals, or at least some of them, were once current coin ; and to that effect Lord Hardwicke expressed himself in the case ofBridgman v.Dove.(f) By the word " debts," whatever property falls within the description of a debt, will pass to the legatee ; as money owing to the testator on bonds, notes, mortgages, &c. The time to which the legacy refers is material, for if the bequest be of " debts due and owing at the testator's death," the obligations then due, and answering the description of debts, will pass; and the interest of the legatee can- not be disappointed in any of them, by a subsequent act of a debtor, under his engagement to perform a particular duty. In illustration (?) J Suhr? ald K>\ field ' l RUSS ' 42? ' (QC) 15 VeS< 319< Stated ante> p - 2 2 ' W S u flra,p.. 190, etseg. and see Downing v. Townsend, Ambl. 280. (rf) 1 bim. & Stu. 500. (0 4 Ves. 725; f/) 3 Atk. 202. stated supra, p. 203. SECT. I.J under the Words of the Will. 213 of this : If A. bequeathed all his ready money and debts due and owing to hini at his death to B. and he afterwards lent to C. 3500L navy five per cents upon security of his bond, to replace the stock on a particular day, and to pay the intermediate dividends. If the bond were forfeited during vi.'s life, and he died before the stock was replaced, B. would be entitled to the benefit of the bond ; be- cause, by the forfeiture of the condition, a debt became due from C. to A. which was owing at ASs death ; and the circumstance that C. might still transfer the stock, could not alter or affect the rights of the parties. So it was determined by Sir William Grant, M. R. in the case of Essingtonv. Vashon;(g) from whose judgment this inference arises, that. sums of money only, which are actually due and payable at the testator's death, fall within the description of debts due and owing to him at that period ; so that if the condition of a bond or mortgage were not broken during the life of the testa- tor, the hioney secured by either, would not pass, as not answering the description of a debt due to him at his decease. The word " debts" may be confined to particulars when the inten- tion is sufficiently apparent from the will, to give pnly sums of mo- ney owing upon particular securities ; as in the instance of a gift " of the debts owing by B. to the testator at his death, viz. such as shall be due on bond or. mortgage ;" for the viz. clearly shows the qualified sense in which the general words were used. But in the case next stated, Lord Eldon expressed a decided opin- ion, that if a bequest were of " the debts due at the testator's death from C. whether by bonds or mortgages, or open accounts," debts only so secured- would pass to the legatee, (h) although the form of bequest does not seem inconsistent with the intent to give all the debts by the general words, as in the instance before given, since the enumeration might be made-ea; abunddnti canteld.(i) Yet, suppos- ing that opinion on such a case to be correct, if, from other parts of the will, a clear intention appears, that notwithstanding the enu- meration of the particular securities, the testator meant to give all debts of every kind and description which C. should owe him at his death, then full effect will be given to the word " debts," and the legatee will be entitled to whatever sums of money, falling within the description, were due from C. to the testator at the death of the latter. . . . An instance of this occurred in Stenhousev. Mitchell,(k) where A. by the tenth clause of his will, bequeathed to B. all the debt which should be owing to A. from C. of Bellfield estate, on the 1st day of January 1 794, whether by bond, mortgage, or open account, charged with the payment of 100Z. a. piece yearly, to D. and jE. if such debt did not . exceed 8000/. or that D. and E. should have a quarter of the interest on whatever sum might be due by Bellfield estate. By the eleventh clause A. gave to his six nephews the debts which should be due to him at his death, whether by mortgages, bonds, or open accounts, by J. and other persons, owners of certain specified lands, subject to the payment of legal interest on the sums owing by those estates. And by a subsequent claused, gave all the (g) 3 Meriv. 434. (A) 11 Ves. 356. (0 See observations, infra, (k) 11 Ves, 353. 214 Rights of Specific Legatees, [Cii. IV. debt which should be owing from the said C. of Bellfieldesiate, on the 1st day of January 1796, instead of the 1st of January 1794, to the said B. to whom he mentioned that debt was .given on B.'s paying to D. and E. a fourth part of the legal interest of the sum such debt iniuht happen to be at A. ' death- The question was, whether the legatees under the eleventh clause were entitled to judgment debts and other debts which did not accord with the terms of the bequest *? And Lord Eldon determined in the affirmative, observing, that upon the subsequent or last clause, with reference to the debt in the tenth clause, the testator himself had said {in omitting the words, " whether by bond, mortgage, or open account,") that when he gave debts, whether due by mortgage, bond, or open account, speaking of debts due 6y estates, he. meant all the debts those persons whom he named should owe him at the period to which he referred ; . in that clause of 1794 and 1796, and in the other at his death. In deciding the last case, Lord Eldon thought it necessary to call in aid the context of the will, and was of opinion (as before appears) that if the subsequent or third clause had been omitted, he must have determined .that the word "debts," followed by the specifica- tion of the particular securities, was confined to property actually due upon mortgages, bonds, and open accounts. That was how- ever only opinion, but it is pfesumed that the manner in which the specification was made, .so far from showing an intention to restrain the generality of the word " debts," seemed to have been inserted from an anxiety to include every debt that might be owing from the debtors. His Lordship's opinion therefore, might be doubted upon principle, in the absence of authorities to. the contrary ; but when the case of Bridges v. Bridges,(l) and Chalmers v. !Storil,(m) are considered, it will appear difficult to support that opinion. In the first case, the testator gave the remainder of his estate, viz. his bank stock, India stock, and south sea annuities ;" Lo*rd King held that not those particular funds only, but the whole residuary personal estate passed ; the specification not being added -in a restrictive sense, but as an enumeration of the chief particulars of which the estate con- sisted. And in the second case, the testator gave all his real and personal estate to B. &c. and then enumerated the property be- queathed, as consisting of freehold ground rents, money on mort- gage, American bank stock, &c. And Sir William Grant, M. R. determined upon the authority of the last case, and the intention of the testator, that the whole personal estate passed to the legatees. So that in the case of Stenhouse v. Mitchell, the intention being clear, (as admitted by Lord Eldon} to give alt the debts which should be due from the persons named, the principle of the two last stated cases, seems to apply to it, and to have authorized a decision, without the context of the will, that all those debts, however secur- ed or owing, passed to the legatees. The bequest of a debt or sum of money due upon a particular se- curity, will pass the capital, and not arrears of interest owing at the testator's death ; for the description merely embraces the principal money. (/) 8 Vin. Abr. tit. " Devise," 295. pi. 13. ' (mj 2 Ves. & Bea. 222. and see Williams v. Williams, stated infra, sect. 4. SECT. I.] under the Words of the Will. 215 This was determined by Lord Hardwicke in Roberts v. Kuffin,(ri) where A. bequeathed to B. 2001. secured by a mortgage on the es- tate of C. and all the messuages, &c. for securing the same. His Lordship said that the devise entitled B. to the principal only of the mortgage, and not to the interest accrued from the date of the will. And he put a case of the bequest of 3001. due upon a bond ; which, said his Lordship, would not carry the interest incurred in the life- time of the testator. Since, then, a specific legacy of a debt will not pass arrears of interest, it is a consequence, that the bequest of arrears of a debt will not pass the principal- money, as the term arrears is more appli- cable to interest than capital ; so it was considered by Lord Ross- lyn in Hamilton v. Lloyd.(o] In that case the testatrix having a mortgage for 4000Z. upon the estate , of B. who was tenant for life ; and also having his bond for 1201. arrears of interest, bequeathed " to B. the arrears of her mort- gage upon his estate, likewise a bond from him in her possession to be delivered to him." The question was, whether the principal of the mortgage was included in and passed by the above description? And his Lordship decided in the negative, observing that tha arrears of a mortgage did not mean the mortgage itself, but what might be due a't the death ; that the words were insufficient to pass the mort- gage, and that it was only the testatrix's intention to relieve B. from his debt incurred for interest. We shall now consider what will .pass by the words "linen and clothes." The term " linen," without qualification, will comprise table and bed linen, and every article to which that general word can be ap- plied. But if it be accompanied with the word " clothes," a term merely comprehending body linen, that kind of linen only will pass, as was decided in the case of Hunt v. Hort.(p\ With respect to the import of the word " farm," if a testator spe- cifically bequeath in this manner; " all the farm held by me on lease from A. ;" all' lands and tenements held and enjoyed under such lease will pass to the legatee. And- if the testator descend to fur- ther particulars, and devise thus, " all that my farm called C. and now in the occupation of A" but part of it happens to be in the oc- cupation of B.; the whole of the farm will nevertheless pass under the first words, because it is the obvious intention that all the lands, parcels of farm C. should belong to the devisee, in whose occupa- tion soever they might be ; the latter expressions being words of suggestion or affirmation, and not of restriction .or limitation. Parol evidence also is admissible to ascertain of what parcels the farm consists, and to show that some of them were in the occupation of B. These points were decided in the case of Goodtitle v. Southern,(q) in which A. devised in the following words : " I give all that my farm, lands, and hereditaments, called Troguesfarm, situate within the parish of D. in the county of D. now in the occupation of C. unto B. &c. At the date of the will, the farm was in the occupa- tion of C. ; but two closes, the subjects in dispute, were in the oc- (n) 2 Atk. 112. (o) 2 Ves. jun. 416. (/j) 3 Bro. C. C. 311. (?) 1 Maule & Selw. 299. 216 Rights of Specific Legatees, [Cn. IV. cupation of M. ; they having been previously occupied with the farm but let by A. to M. before the will was made. And in order to show that #., when he made his will, considered the closes as parcels of the farm, a notice to quit was proved, which had been i_ri\rn to Jl. by M. a few months before the date of the .will; by which J/. \v;is required to deliver up possession of all Jl's lands, be- lon^ing to and called Trogues farm, in the .parish of !>., then in M.'s possession, on, &c. The question was, whether the two closes in the occupation, of M. passed toB., and whether the notice could be received in evidence to prove those closes to be parcels of the farm 1 ? And the Court of King's Bench decided both questions in the affirmative. Lord Elknborough, C. J. observing, that parcel or no parcel was always a question of evidence for a jury; and that therefore it was competent to show, in the present case, if there were any doubt, that the two closes were parcel of Trogues farm, by which name the thing was sufficiently ascertained : That the tes- tator contemplated them as parcel of the farm, appeared from, the notice to quit ; and that if they were so, the word " all" in the de- vise would not be satisfied by their .exclusion: That although the testator was mistaken as to the person in whose occupation the two closes were, the error was harmless-, since the devise was sufficiently comprehensive ; and it was clear that he meant to pass all which was called Trogues farm, and which was a plain and certain descrip- tion : and that the defective description of the occupation would not alter the devise. The reader will find other cases upon the present subject collect- ed in note(r) ; from which he will be able to form a judgment when a defective description of the occupation will and will not be re- strictive of the words preceding it. It has been before stated, under what words PLATE will pass when it is not mentioned by name ; but it remains to be considered what will be comprehended under that term. The usual acceptation of the word " plate" is wrought gold or sil- ver; consequently all gold and silver, or silver gilt, will be included in that word. But things which are only washed with gold or silver are not to be looked upon as plate; for the gold or silver used in the manufacture is trifling and secondary ; the chief ingredient in the composition consisting of base metal. Still instances may occur in which plated articles will pass under the description of plate. Suppose A. to bequeath his plate to B., and to possess nothing which can possibly fall under the denomination of plate, except plated goods, they will pass to B. ; for it is clear that the testator meant to pass them as plate. But if A. had also proper plate, then it is presumed that the plated articles would not pass, unless a con- trary intention appeared from the context of the will ; and such an intention may be shown by exception of a plated article out of the bequest of the plate, as appears from similar instances before pro- duced in this sectioh.(s) (r) Roe v. Fernon, 5 East, 51-79; Doe v. Greathed, 8 East, 91-103. Good- right v. rears, 11 Last, 58. Doe v. Earl of Jersey, 1 Barn. & Aid. 550-557. and Down v. Dawn. 7 1 aunt. 343. ( s ) Ante, pp. 193. and 200. SECT. II.] under the Words of the Will. IV! The subject next to be considered is, SECT. II. What will pass to a Specific Legatee under a general bequest of personal Estate in the Colonies. Since, as before observed, the effect of a bequest of personal pro- petty in a particular place is to pass that property only of the testa- tor in the place described either at the date of his will or at his death, according to the terms of the disposition, (t) and it being a rule that the latter is to be considered the period, (except an inten- tion to confine the operation of the bequest to the making of the will clearly appear,(w) it follows that if A. bequeath all his personal estate in Jamaica or in the East Indies to B., and remittances are afterwards made to England, and invested in the English funds, or are intended so to be, or upon some other security; the stock or money remitted, although consisting of colonial property, will not pass to the specific legatee ; because it was not at the testator's death in the place mentioned in the will, and therefore does not answer the description of the bequest. To exemplify this by au- thorities. A. specifically bequeathed the residue of property in Jamaica to his executors to sell, and to remit to Great Britain, &c. the pro- ceeds and all other monies belonging to his estate. It appeared that B. and C. were indebted to A. prior to his will, by judgments obtained in Jamaica. A, not being satisfied with those securities, authorized D. by letter of .attorney, to sue for and receive all debts owing to him in England; under which D. took in England a bond from B. (who had left Jamaica and come to reside in this country), payable to A. by instalments, for what was owing on the judgments from B. and C. to A. D. also entered up judgment in the Court of King's Bench here, upon the warrant of attorney given by B. for that purpose, which last transactions took place three years before the date of the will. It was one of the questions, whether^ under the above circumstances, the debt passed by the specific bequest*? And Lord Alvanley, M. R. decided in the negative 1st. Because it did not appear that the testator intended to include this debt; for* said his Honour, " the testator, at the time of making his will, must be supposed to have contemplated his affairs, and to have had a de- finite meaning as to the words he used. What then could he be supposed to mean by the direction to his executors to sell and dis- pose of his estate, and that the money to arise from such sale, with all other monies belonging to his estate, or, that might belong thereto, should be remitted to Great Britain, &C. 1 ? Did he include this debt 1 ? If he were perfectly cognizant of this transaction, did he look to the payment in Jamaica by J5.? He knew it was a debt payable by a debtor, who had removed from Jamaica, living in this country, who had given security for payment in this country, ac- cepted by his attorney, which is the same as by himself. At that time, therefore, it must be supposed he looked for payment in Eng- land, so that his debt could not be part of the property to be col- lected and remitted to England. My inclination is in favour of the legatees ; but I do not see sufficient to prove that the debt formed (0 Sujira, p. 188. et seq. (u) Ibid. VOL. i. E e 2! 8 Rights of Specific Legatees, [Cn. IV. part of that specific legacy." And, 2dly, because " if this debt were paid under the last engagement, the executors could not have received it under an administration in Jamaica, nor have given the debtor a discharge. If he had complied with the obligation they must have an administration here. It would then be a strong thing to say that the debt passed to them, when they could not by their administration in Jamaica have collected it."(x) So also in Sadler v. Turner,(y) Jl. bequeathed the residue of his fortune in India to his two children, and directed his executors there to remit to England, through the Company's treasury, all such pro- perty as he might be possessed of at his death. Between that event and the date of the will, 3237Z. were remitted to this country, and a bill for 500Z. was in transitu when A. died. It was one of the questions, whether these two sums passed under the specific be- quest of the residue of A's. India property to the two legatees'? And Sir William Grant, M. R. declared, that so much of A's. pro- perty as was remitted after the will, and before A's death, and what was at that time in transitu were to be considered property not in India, and therefore not disposed of. His Honour observed, as the reason of the decree, that the will could operate only with regard to property in India at the death of the testator ; and he continued, " Supposing the words to be taken as words of description, yet no- thing can pass but what he has described. The expression of in- tention alone will not do ; unless some words, actually disposing of the property, can be found." SECT. III. Of the title of a Specific Legatee to an excess of the fund, whether of capital OY profits accrued between the date of the will and the death of the Testator. With respect to the title of a specific legatee to an excess of the fund accrued or added to it between the date of the will and the death of the testator, that title must always depend upon the words of the bequest, viz. whether the words, consistently with the testator's intention, include within their import such excess. If then Jl. bequeath to B. 5000Z. bank stock standing in his name, and 'a bonus be given by the bank, under the statute 56 Geo. 3. chap. 96, sect. 3, in the interval between the date of the will and the testator's death, the additional capital will not pass to the spe- cific legatee. It was so determined by Sir Thomas Plumer, V. C. in JVbrm v. Harrison.(z) In that case A. after reciting that he, by the will of B. was em- powered to dispose of several capital sums of 1400/. &c. then stand- ing in C's. name in the books of the Governor and Company of the bank of England, bequeathed the said several sums of 1400Z. bank stock, &c. unto D. upon trust, &c. A. also bequeathed 11,OOOJ. capital bank stock, then standing in his name in the same books, to E. and E.'s children, as therein mentioned. Subsequently to those bequests, and during A.'$ life, the bank increased the capitals of each proprietor, by an addition of twenty-five per cent, by which the 1400/. stock was augmented to 1750J. and the 11,000*. to 13,750?. (or) Mubett v. Murray, 5 Ves. 149-157. (y) 8 Ves. 617-623, (z) 2 Madd, 268-281, see also, Smith v, Fitzgerald, 3 Ves. & Bea. 2. SECT. IV.] under the Words of the Will. 219 which were standing in A.'s name at his decease. One of the questions was, whether these bonuses or additional capitals passed to the specific legatees with the original stocks 9 And it was de- termined in the negative, for the following reasons : " The specific legacy," said the Court, " is of 11,OOOZ. bank stock, and it cannot be said that 13,750/. bank stock passes under a legacy of 11,000/. bank stock. There are no words in the will to pass the additional capital to the legatee. On the same principle the legatees of the 1400Z. stock are entitled only to that stock." It seems to be an inference from the principles of the last two cases, that if a specific bequest be made of all or the whole of a testator's bank stock, or three per cent consols, now standing in his name, subsequent bonuses given by the bank during his life, or after purchased or acquired three per cents, cannot pass, because the terms of the gift do not embrace them. But that if the bequest be of all the bank stock or three per cent consols, which shall be standing in the testator's name at the time of his death, such bonuses and after acquired annuities will pass to the legatee, as falling within the words and intention of the testator. (a) To apply these rules to the instance of a partnership. The last two cases prove that intention alone is insufficient to pass increased capital to the specific legatee ; but that words disposing of it are ne- cessary. If then A. bequeath to B. all that is now due to him (A.) in respect of his partnership with C. nothing would belong to B. but what was actually due to A. at the date of his will, since the words of gift confine the legacy to that period, and increased capital and profits between the date of the will and the testator's death would form parts of his general personal estate. But if the bequest were of all A.'s interest in the concern, or of his moiety or share in the capital and profits of the partnership, (terms not confining the legacy to the date of the will, but sufficiently comprehensive to include whatever A. might be entitled to on the above accounts at his death,(b) the whole then due to him would pass to the specific le- gatee. SECT. IV. Of Mistakes in regard to the Subject specifically bequeathed. And, 1. Of mistakes in the description of the fund, and the admissibili- ty of extrinsic evidence. It was noticed in the last chapter,(c) that a mistake in describing a chattel specifically bequeathed, would not be fatal to the legacy; and an instance was produced of a horse bequeathed as white, when the only one the testator had was black. The principle was, that the testator meant to give his horse ; which clearly appearing, the Court, in support of the bequest, rejected the word white as a mere error of description, so that the clause standing thus, " I give my horse to B.," was sufficient to pass the black horse. But it must be observed, that the state of the testator's property when he made his will was necessary to be considered ; which, when compared with the description of the horse bequeathed, showed that there was no white horse to be delivered to the legatee. Hence a (a) See 15 Ves* 327. (A) See ante,. 188. (c) Supra, p. 151. Rights of Specific Legatees. [On. IV. latent ambiguity arose from the above comparison in regard to the testator's intention, viz. whether he did not intend for the legatee tin- horse he was possessed of when he made his will, whatever might IK- its colour; yet, without taking into consideration the testator's property, it is obvious, that the black horse could not be claimed by the legatee under the description of a white one. It however being >eitled, that in such a case the bequest of the horse will take place upon the inference drawn from a comparison of the state of the tes- tator's property when he made his will with the terms of the bequest, hall consider the application of the principle to instances of stock. (d) Suppose, then, a testator being possessed of three per cent consols, but having nothing in three per cent reduced, bequeath- ed to B. all his stock in three per cent reduced: if the state of his property could not be admitted, to show error in the description of the fund, the legacy would be void ; but since, as in the former case, it was taken into consideration, consistency of principle requires that it should be so in the present, and consequently the error being made to appear, the bequest will pass the stock in three per cent consols. In Selwood v. Mildmay,(e] Lord Mvanley expressed himself on this subject to the following effect: " If the testator had the stock at the time, it would be considered specific, and that he meant that identical stock, and any act of his destroying that subject would be a proof of animus revocandi ; but if it be a denomination, not the identical corpus, in that case, if the thing itself cannot be found, and there is a mistake as to the subject out of which it is to arise, that will be rec- tified." We shall now consider the cases. In Door v. Geary,(f) A. bequeathed to his wife B. 1001. capital East India stock, in which he was then interested, possessed of, or entitled to. He had not at that time any East India stock, but there was 1001. bank stock, to which his wife was entitled under the will of C. (whose executrix she was,) after payment of debts, and which A. afterwards transferred into his name and made his own. The question was, whether this 700Z. bank stock should pass, although described as East India stock *? And Lord Hardwicke decided in the affirmative, observing that the mistake was error demonstrationist and that the words East India should be rejected. In addition to the above authorities, is that of Lord Kenyon, M. R. in Dodson v. fVaterman,(g) in which A. bequeathed to B. the sum of 7001. capital stock in the three per cent consols, part of his then stock in that fund. He was not possessed of any stock whatever at the bank when he made his will, or at the time of his death ; but he had 1800J. three per cent South Sea annuities. A. was blind at the date of his will, and had been so for many years. And the only question was, whether B. was entitled to 700Z. part of the South Sea annui- ties, A. never having had any such stock as was specified in his will to answer the bequest t*-^ cannot be controlled by the statement of their property. Accordingly, in Innes v. Johnson, a decision upon the question whether a bond was specifically bequeathed, Lord Jllvanley, M. R. *4f it'r*. :/*hus expressed himself :'o) "It turns out that there was among the assets one bond for the exact amount of the legacy ; but there were ^ also many' other bonds belonging to the testator, and it was insisted, "ahd very properly, that the Court is to determine, upon the face of the will, whether the legacy be specific or pecuniary, and not to tra- p 3 -. Ves - 506 - (n) See Evans v. Trifl/i, 6 Mad. 91. . ) 4 Yes. 573. stated sw/ira, p. J74. -w- fc SECT. IV.] under the Words of the Will. 223 vel into the account of the effects to see whether that shall be turn- ed into a specific legacy, which upon the face of the will is to be taken as pecuniary. (p) It was argued, I think with great success, that if upon the face of the will the legacy is to be presumed not to be specific, I ought not to travel into the account of the effects to turn it into a specific legacy. If it had rested upon the first words, 3001. upon bond, should I ask any other -question than this, whether the testator had more than one bond 9 If he had only one of that particular amount, that, I think, is not sufficient, and would be too slight a ground ; but if he had only one bond in the world, I must have supposed he meant that." From this opinion, and the cases referred to in the last note, it seems to follow, that however difficult it may be to ascertain the meaning of a testator from the expressions used by him, a Court is bound to confine itself to the will's context, and to put the best construction it can upon the whole without call- ing in aid extrinsic evidence to explain .the words of the bequest. Thus a legacy of 50/. a year in long annuities cannot be changed from an annuity to a capital sum of that amount, either from the state of the testator's property, or other extrinsic evidence showing that a sum of 501. only was intended to be given. (9) Of if, from the words used in reference to the fund, 'it be doubtful whether a principal sum might not be intended instead of an annuity ; still, unless the context clearly show an intention that a capital sum only was meant to pass, it is presumed that the legacy must be of an annuity, and not of a gross sum ; and that external evidence as to the state of the testator's property cannot be admitted to control what would be the legal import and effect of the terms of the bequest, upon a fair construction of the whole will, without collateral aid.(r) There is a case, however, difficult to be reconciled with these observations, which it is necessary to consider. In Fonnereau v. Poyntz,(s) A. bequeathed " the sum of 5001. stock in long annuities to B.;" and after two other legacies express- ed in similar language, Jl. gave to C. " the sum of 2001. stock in long annuities ; the interest thereof to accumulate till C. attained the age of twenty-one, and then the whole to be transferred to her." And he gave another legacy, similarly expressed, to D. A. had 120/. a year long annuities, and no more. And the question was, whether capital sums only were intended for the legatees ? in which case, the proceeds from the sale of the long annuities would be sufficient to pay all ; or whether annuities of those amounts were intended 9 and if so, then the estate of Jl. would be greatly insufficient to answer those purposes. The solution of the question depended upon a pre- liminary one, viz. whether the state of JISs property could be look- ed at to enable the Court to put such a construction upon the words of the bequests, as from the condition of that property it was likely that he meant in using those words 9 And Lord Thurlow decided, that such evidence was admissible in this instance, since the ex- pression in the will, viz. " sum of /. stock in long annuities" used in giving some of the legacies, and interest being directed to (/z) See Andrews \. Emmot, 2 Bro. C. C. 297-303. ed. by Belt, and Lord El- don's observations in Nannock v. Horton, 7 Ves. 400. See also 2 Meriv. 537. 1 Swanst. 71. (?) 1 Bro. C. C. 482. 3 Meriv. 319. and see Chambers v. Minchin, 4 Ves. 675. (r) 1 Ves. jun. 285. () 1 Bro. C. C 472. 224 Rights of Specific Legatees, [Cn. IV. accumulate, in the others upon " sums of I. stock in long annui- rendered it uncertain upon the whole context of the will whether .7. intended to give gross sums or annuities; which uncer- tainty (thmijfh appearing on the face of the will, and therefore a patent ambiguity) authorized the admission of evidence dehors the will to show whether A. really meant to give annuities or gross sums. The state of .#'* property being thus admitted to prove what he nu'iint to pass by the words of his will ; his Lordship finally decreed (but not without difficulty as to the admissibility of the evidence) that the legatees were only entitled to capital sums, since it appear- ed, from the state of A.'s property, that if they took annuities, they would amount to ten times more than A. was worth. The following are objections which may be taken to the last decree: First, that the legacies not being specific, but so given as to be satisfied by the executors purchasing long annuities, if the assets had been sufficient, the principle upon which evidence of the state of the testator's property is admitted to correct a mistake in the description of the fund intended to be given, or of part of it, does not apply : that principle was mentioned and illustrated in the first subdivision of this section. This remark appears to meet the obser- vations made by Lord Eldon in support of this decree in Druce v. Dennison.(t) Secondly, that an obscurity arising upon the face of a will, does not authorize an explanation of its terms by extrinsic evidence. So that in this case, whether A. meant by the words used by her, capital sums or annuities was a question only to be deter- mined by the legal import of such words, and what clearly appeared from the context of the will. And, thirdly, that as from what was plainly expressed in the will, the legatees (as admitted by Lord Thurlow)(u} would have been entitled to annuities ; the legal import of those expressions ought not, as it is conceived, to have been con- trolled by any thing dehors the will ; and not even by the context, unless it clearly showed what was the intention of A. in using the words in contradiction to their legal sense. As to this, the obser- vations of Sir William Grant are particularly applicable, which will be afterwards stated when the case of the Attorney General v. Grote(x) is considered. It would seem, that for the above reasons, the case of Fonnereau v. Poyntz must be considered anomalous. And although Sir Wil- liam Grant intimated that in a case precisely the same he might be disposed to follow that precedent,(2/) yet when it is known that his inducement to do so would be the great disproportion between the state of the testator's property and the legacies, if considered annui- ties, it may be doubted, whether if his Honour had been pressed for a decision in such a case, he would not have hesitated in adopting the precedent of Fonnereau v. Poyntz, upon the ground that the rule, as to non-admission of evidence aliunde to explain, alter or con- trol the words of a will has no dependence upon, or relation to, the adequacy or insufficiency of the property to answer the bequests,(z) but is founded upon the principle that a will in writing cannot be varied or explained by parol testimony. it) 6 Ves. 401. and see Chambers v. Minchin, 4 Ves. 675. (u) 1. Bro. C. C. 479. (.r) 3 Meriv. 321. and see Hay v. Earl of Coventry, 3 Term Rep, 85. (y) 3 Meriv. 319. (r) Jones v. Curry, 1 Swanst. 71. SECT. IV.] under the Words of the Will. 225 In proof that where the legacy is general of a sum of money in a particular stock, in which the testator had no property, evidence cannot be received to show that he meant to give it out of other pro- perty of which he was possessed in another stock, may be adduced the case of Chambers v. Minchin,(a) in which A. after giving the trustees lOOOf. to lay out in government or other securities upon cer- tain trusts, bequeathed to them " a further sum of 2,400Z. in the five per cent consolidated bank annuities," upon various trusts. The only stock which A. had at her death, was 156Z. a year long annui- ties; and the question was, whether a sum of 2400J5. should be vested in five per cent annuities, or the bequest was to be considered as of so much as would produce 1201. per annum long annuities ; and evi- dence was offered to show that the latter was ASs intention, and the reference in the will was a mere mistake in the description of the fund. But Lord Rosslyn rejected such evidence, and decreed upon the words in the will, that a sum of 2400Z. should be purchased by the executors in five per cent, annuities. The principle of the last decree seems to have been, that the lega- cy being in form general of a sum to be invested in a fund suffici- ently, though inaccurately, described, the rule that prevails in such cases apply to the present, viz. that the executor should purchase the sum specified in the fund intended. And that since there was no necessity, (as in the instance of a specific legacy) to resort to the state of the testator's property to ascertain the agreement between it and the thing given, evidence dehors the will was not admissible to raise a mistake, and then to correct it upon proof of the testatrix's intention. Hence this case is in harmony with the distinctions which have been made on the admissibility of extrinsic evidence in exposition of wills. But suppose legacies to be given specifically as annuities in a par- ticular fund, in which the testator had annuities, but inferior in amount to those given, and yet amply sufficient to* answer the lega- cies if considered as bequests of capital sums, there is no principle upon which evidence to prove the latter to have been the intention could be admitted that would not authorize the introduction of such evidence for the exposition of wills generally. It should seem, there- fore, that in the instance proposed, the state of the testator's pro- perty may be so far looked at as to see whether any parts of it con- sists of the particulars described in the specific disposition, and for no other purpose ; so that if the words of the bequest give annuities exceeding the amount of the fund, the legatees must abate ; and it is conceived that the mere circumstance of the property being in- sufficient to answer the legacies as annuities is not allowable to alter or restrain the legal import of the words of the bequest. The case next stated proves this; and it seems an authority in direct oppo- sition to Fonnereau v. Poyntz before considered; and it also con- firms what was before stated, that patent ambiguities, i. e. obscuri- ties appearing upon the face of a will, cannot be dispelled by extrin- sic evidence, but that the testator's intention must be collected from a rational construction of his whole will. (&) (a) 4 Ves. 675. (6) On the present- subject see ante, Chap. II. sect. 18. VOL. I. F f 226 fiigkts of Specific Legatees, [CH. IV. Thus in the Attorney General v. Grote,(c) A. specifically bequeath- ed two legacies of 51. each to B. and C., by descriptions of " 5Z. per annum bank long annuities." A. then gave to D. and E. two legacies of 100J. each, in these words, " lOOZ. long annuities stock" and she bequeathed to jP. " 301. a year further part of her long an- nuities," to apply the dividends as therein mentioned. A. also gave to G. " 150J. bank long annuities stock" and made a codicil in which A., after noticing that she might have made a wrong calcu- lation of the value of her fortune in the funds from the uncertainty of their price at her death, directed an eventual deficiency to be sup- plied by her residuary estate. A. died possessed of 3S 51. per annum long annuities, and of no other stocks or annuities. The long annui- ties and her other personal estate were insufficient to pay her debts, funeral, and testamentary expenses, without the aid of the long annui- ties ; and was insisted, in opposition to Z>.'s claim of 100Z. a year long annuities, that under the circumstances, the legacy ought to be consi- dered a capital sum of WOl. to be raised by sale out of those annuities. But Sir William Grant, M. R. decreed that the legacy was of 100/L a year long annuities ; and said, there could be no doubt that if A. had given a single legacy " of 1001. long annuities stock," the le- gatee would have been entitled to a long annuity of that yearly amount. But that a doubt was raised partly from the circumstance that A. had not stock enough to answer all the legacies she had given in these terms, if they were considered as annuities, and partly from her having, in other instances, specified her legacies as con- sisting of so much per annum in bank long annuities. His Honour admitted that those circumstances created a doubt whether A. meant to give 1001. per annum, when she did not expressly say so, but he said, that if A. did not so mean, he was greatly at a loss to say what it was that she did mean; since it Was hardly conceivable that any per- son intending merely to give 100J. in money, should use the words, "long annuities stock." And his Honour in concluding his judgment thus expressed himself: "The question comes round to this ; whether, as the words used are properly descriptive of so much stock of bank long annuities, it appears (as Lord Thurlow thought it did in Fon- nereau v. Poyntz,(d] perfectly clear, from other circumstances which amount to demonstration, that A. did not mean them in that sense *? I think it does not, and that therefore I am not warranted in striking out or leaving inoperative the words ' long annuities stock.' To authorize a departure from the words of a will it is not enough to doubt whether they were used in the sense which they properly bear. The Court ought to be quite satisfied that they were used in a different sense ; and ought to be able distinctly to say what the sense is in which they were meant to be used.(e) A legacy of 100Z. is a different thing from a 100Z. stock. A. has expressly given 100Z. long annuities stock ;' but I am desired to hold that she meant 100J. in money. I do not say it is not doubtful whether she may not have meant this ; but there is not enough to show clearly that it is what she did mean ; I must therefore abide by the words of the will and decree accordingly." (OSMeriv. 316. (d)^ra,p.203. (e)See Smith v.Maitland, 1 Yes. jun. 362-364. SECT. IV.] under the Words of the Will. 227 Most of the cases before produced in this section were instances of totally erroneous descriptions of the things intended to be given, as where testators had no property whatever to bequeath in the funds they referred to. We shall now proceed to consider(/) 3. The consequences of mistakes in the calculation of the spe- cific fund of which the testator is possessed when it is wholly given to an individual or for a specific purpose, and when to several per- sons in fractional parts. As to the first it is settled, that when the intention is apparent from the will to give a particular fund, a wrong description or recital of its actual amount will not disappoint the bequest whether the fund be less or more than as described. Thus in the Attorney- General v. Pyle,(g) A. bequeathed as fol- lows : " Whereas there is now owing to me from B. and company the sum of 1000J., I do hereby give the said sum to C." The debt due to A. at his death was no more than 365 J. 17s. 6d. And Lord Hardwicke decreed that sum to C., observing, " that a wrong des- cription and falling short would not defeat the legacy." But when the fund exceeds the sum at which it is estimated, and the form of bequest purports to give the estimated sum only, the excess will not pass to the specific legatee, unless it clearly ap- pear, from the will's context, that the whole of the property was meant to be given, and the mentioning of the smaller sum was a mistake ; because the words of the bequest comprehend no more than the latter sum.(^) This will appear from the case of Hotham v. Sutton:(i) In that case A. by her will recited that she was possessed of 12,700iL three per cent consols standing in her name, and gave the same or so much of such bank annuities as shouldbe standing in her name at her death, to her executors upon several trusts. When Jl. died, and also when she made her will, she was possessed of 14,765Z. 16*. Qd. three per cent consols ; and it was a question whether the excess, beyond the 12,700Z. three per cent consols, should pass to the executors under the above bequest 9 And Lord Eldon determined that the 12,700Z. three per cent consols only passed from the uncertainty of the real intention of the testatrix; for his Lordship said that, consider- ing the bequest not to be of 12,700Z. three per cents, but of so much of such annuities as should be standing in her name at her death ; such would be a very difficult construction, first, as, if that were JlSs intention, though there should be ten times the amount, there was no reason for reciting she was possessed of the above sum of 12,700Z. ; and secondly, from the consequence that if Jl. had sold the whole of the stock, and remained for some time without any, and then bought other stock, the Court must have held that she had be- queathed not what she had at the date of her will, but what she had at her death. His Lordship also observed, that he could not suppose A. to be ignorant of the state of her property, unless the fact ap- peared upon her will ; and that it did not follow from the recital that understanding she possessed no more than 12,700Z., she intend- ed to give all she possessed, whether more or less, which would (/) See Coljioys v. Colpoys, 1 Jac. 451. () 1 Atk. 435. (A) See ante, p. 218, 219. (i) 15 Ves. 319. 228 Rights of Specific Legatees, [Cfl. IV. amount to this ; that measuring her bounty and the extent of it (as she appeared to do by the recital,} she intended to give 200,OOOZ. if she should have it. Between the two propositions that she meant to dispose of so much of such bank annuities as by the recital she said she had, or of such as she might have, though upon the latter con- struction, if she acquired stock to the amount of 200,OOOZ. the whole roust have passed to make good a bequest, the extent of which she measured by the recital as to 12,700/., his Lordship said the better legal opinion seemed to be that the last sum only passed. With respect to the consequences of a miscalculation of the spe- cific fund where it is bequeathed in fractional parts. A general remark may be made as applicable to this subject : that when a particular fund is given in parcels, and the sums, or parts of stock are mentioned, but the property is taken to be more than its real amount or value, the fund must be divided amongst the lega- tees according to their proportions of it. But that if the last taker be named or described as residuary legatee of the specific subject, he will only be entitled to what (if any thing) shall remain after the prior specific legatees have been paid in full their several propor- tions, subject however to exceptions when a contrary intention ap- pears from the context of the will. These observations will be illus- trated by the following cases : In Danvers v. Manning,(k) .#., after specifically bequeathing by will parts of his stock in the public funds, proceeded by codicil to the following effect : " I find that I have willed away only 5600/. in bank four per cents, and I find I have there at present 6000Z. ; I give the interest of the remaining 4001. to J5..for life, "and at her death, it must go with the rest to C." A. was mistaken in what he had given by his will, for the residue of his bank four per cents exceeded 400J. And it was contended for B. that the legacy was not particular, but residuary, so as not only to pass the 4001. but the surplus of the fund. And Lord Thurlow was of that opinion, al- though he observed that A. had miscalculated the particular residue, and probably did not mean B. to take so much, yet his Lordship thought that in declaring B. to be entitled to the whole of it, he was nearer the point of ASs intention, than any of the constructions contended for against it. It is to be noticed, that in the last case, the amount of J5.' legacy was specified ; yet, since it was given in the form of residue of the fund, and there was no expression or intention as to what should become of an excess beyond the 400Z. Lord Thurlow gave it to B. in the character of residuary legatee of the specific pro- perty. But in an instance which will be next produced, although the legatee took, as in the last case, the remainder of the specific fund n the form of a residue; yet the Court decided upon the context of the will, that he was to be considered as much a particular legatee of his proportion, as the other specific legatees of their shares, upon the principle, that the testator had assumed the property he directed to be sold, would produce a certain sum, which he intended to be divided amongst the persons named in his will ; it being supposed (*) 2 Bro. C. C. 19. 22. Ed. by Belt. 1 Cox, Rep. S. C. 203. SECT. V.] against the Executors. 229 that he computed the share of the last taker, although it was not named, but given to him as the residue of the fund. Thus in Page v. Leapingwell,(l) A. devised to trustees certain lands to sell, but not for less than 10,OOOJ. A. under the belief that the property would produce at the least that sum, proceeded to dis- pose of it in fractional specified sums for the benefit of B. and other persons ; and after payment of those legacies, he directed his trus- tees to invest the " overplus" monies arising from the sale in the public funds for the equal benefit of C. and D. A. afterwards made a general residuary disposition of his property. The lands were sold for less than 7000Z. under a decree ; and one of the questions was, as to the interest which C. and D. took 7 If they took in the character of residuary legatees of the fund, they would be entitled to nothing, as there was not any surplus ; but if as particular specific legatees with the others, then they would be entitled to participate in the fund with such other legatees, in the proportions intended, if the property had produced 10,OOOL (proportions intended, which amounted to 2200Z.) and to be .paid what should appear to be owing on that sum, after abating with their specific co-legatees : and Sir William Grant, M. R. was. of opinion, that C. and D. were so enti- tled, since the testator assumed that he had 10,OOOZ. to distribute, and made distribution on that supposition ; meaning, however, that if there had been an excess of the fund, C. and D. should have it. His Honour, therefore, upon intention, collected from the context of the will, restrained the general import of the word " overplus," to the meaning of a certain sum remaining of an ascertained fund, after taking out of it the other sums specifically given, and consi- dered that all the legatees were intended to have certain defined parts or proportions of it, by whatever words they were given. We may remark, that of the last two cases, the first is an authori- ty, that a legatee of part of a specific fund given to him in the form of residue, the supposed amount of which residue is named, will, nevertheless, take in a character of residue, whatever excess there may be beyond the specified sum ; and the second, is an authority that whether the sum be mentioned or not, if the fund have been erroneously estimated, and is therefore unable to answer in full, all the specific dispositions made of it, a legatee in form residuary, will be considered particular, and entitled to a share of the property, (estimated at what would have been his proportion if the fund had been of the amount supposed,) after abating with his co-legatees. SECT. V. The rights of SPECIFIC LEGATEES against the EXECUTORS. If a legacy be of a silver cup or a jewel, and it be in pledge at the testator's death, the legatee has a right to call upon the execu- tor to redeem it, and deliver it to him ;(m) and so it is by the civil law.(w) So also if the bequest were of specific stock, and it happen to be sold by the executor, when there was no necessity for the sale to pay debts, the equity of the legatee is to have the stock replaced according to its value at the end of a year next after the testator's (0 18 Ves. 463. (rri) 2 Bro. C. C, 113. (n) Swinb. pt. 7 sect. 20. p. 548. 230 Rights of Specific Legatees, [Cn. IV. death, since the fund, if not sold, was then transferable to the lega- tee, (o) In Chaworth v. Beech,(p) a specific legacy of a note for 8000f. was given to B. The amount was paid into Court, pursuant to an order, in a cause then depending about six years before this suit; and the money was laid out in three per cent consols. In the first case the legacy was considered general, a mistake corrected in the present. The question was, whether B. was entitled to the sum due upon the note, or to the stock purchased with it "? And Lord Mvan- ley, M. R. declared, that B. was entitled to the sum due upon the note at the time it was paid into Court, with interest at four per cent from that period. And in answer to what was insisted to the con- trary, viz. that B. was only entitled to the stock purchased ; " That," (said his Honour,) " would be the greatest injustice to B. for she had a right to the specific legacy ; and if the assets did not want it, she had a right to have it delivered up. She was not bound to lay it out in the funds, but if she had so done she would have a right to the rise and be liable to the fall. Instead of that, the executors hav- ing insisted that it should not go out of Court, it was paid in and laid out in stock." The Court, therefore, decreed, as before stated ; and that B. was not obliged to take the stock which had become depreciated in value. /" Upon the same principle, if a horse were specifically given, which ' the executor refused to deliver, lest there should be a deficiency of assets to pay debts, and having used and worked the horse a consi- derable time, he afterwards offered to deliver him to the legatee ; the latter may insist upon the valite. Or if the horse had been un- necessarily sold, and the proceeds applied in payment of debts, the legatee would be entitled to the value of the animal, with interest, from the moment it was so disposed of. ( ibid. 290. 298. Hardman v. Johnson, 3 Meriv. 347. , (/) See White v. Wftite, 9 Ves. 554. SECT. VI.] against prior Tenants for Life. 233 term, and what the term of nineteen years after the existing term, and the nine years was worth, the latter being the proportion to be paid by the remainder-man. With respect to interest to be allowed to A. on the fine paidm^ros- pectu, i. e. for the enjoyment of the new term after the twelve years of the old would have expired, and during which period A. would have been entitled to enjoy the estate, if no renewal had been made, Lord Thurlow declared, that as the value of the lease was calculated on com- pound interest, A. should be allowed compound interest at four per cent, to be computed upon the proportional value of the nineteen years term to the whole expense of renewal, and up to the death of A.; from which time as .#.' legal personal representatives only stood in rela- tion to the remainder-man as common creditors, they were merely entitled to simple interest. Which arrangement his Lordship con- sidered to be the justice of the case ; since as, on the one hand, A. could not renew for his own benefit, so on the other, the remainder- man should not be permitted to take the renewal at ASs expense. (g) And it is to be observed, that there is no difference in relation to this subject between a renewable term for years, and a renewable lease for lives. (h) The same rule of construction appears to apply, but in a different manner, when the renewable leasehold estate is bequeathed to trus- tees, in trust for A. for life, remainder to B. for life, remainder to C.: with a direction to renew and pay the fine out of the rents and profits. It seems to be the duty of the trustees, in such a case, to provide an accumulating fund out of the rents and profits during the enjoyment of A. to answer the renewals to be made in his time ; and to pursue the same conduct during the life of B. If the trustees omit to renew at proper times during the lives of A. and B. -so as that the fine for renewing become greatly enhanced upon C.'s succeeding to the estate, they (the trustees) will be personally liable to C.; and they will be entitled to resort to the assets of A. and B. for repayment. But suppose B. to have been a married woman, the wife of A. to whom therefore no neglect or misconduct could be imputed for non- renewals in ASs life-time, her estate would be only answerable to the trustees for so much of the rents of the leasehold estate, as she after A?s death received, and which ought to have been appropriated as a fund for a renewal, and not for the excess of the fine occasioned by not renewing at the usual and proper times during A?s life. The following case, as finally determined by Lord Eldon on appeal, esta- blished the foregoing observations : In Lord Montford v. Lord Cadogan first decided by Sir William Grant,(i) a renewable lease of forty years was, by marriage settle- ment in 1772, vested in trustees, with the benefit of renewal, to hold for the remainder of the original term, and for all renewed terms in trust for Lord Montford till the marriage. Afterwards the trustees were directed to pay, with the rents, issues and profits, the fines and- expenses of renewal and the costs of executing the trusts ; and after (g) Nightingale v. Lawson, 1 Bro. C. C. 443. Ed. by Belt, 1 Cox, 181. ai ord Elaon'a observations in White v. White, 9 Ves. 558. (A) 9 Ves. 559. 2 Bro. C. C. 243. (j) 17 Ves. 485^ et vide Lord Miteington v, Earl of Mulgrave, 3 Mad. 491. Ma " 5 Mad. 471. S. P. VOL. I. G g 234 Sights of Legatees in remainder, [Cn. IV. payment of such rent, costs, charges arid expenses, and performance of the covenants, &c. the premises were to be holden by the trus- tees in trust to permit Lord Montford to receive the rents for life, and in like manner to suffer Lady Montford (his intended wife) if she were the survivor to take the rents for life ; and, after the death of the survivor, to raise by mortgage or sale any deficiency of younger children's portions provided by the deed. And, if there should be a residue of the leasehold estate, in trust to permit his first son to re- ceive the rents until he attained twenty-one, and then to assign the estate to him. The lease was renewable at the expiration of every fourteen years; and Lord Montford died 1799, after enjoying the estate for twenty-seven years ; but the trustees neglected to renew, and permitted his lordship to. receive all the rents during his life. Lady Montford survived him, and was in possession, as the second tenant for life, from 1799 to 1808, when she died, and was succeed- ed by the plaintiff, the only issue of the marriage. The lease ought to have been renewed in 1785 and in 1800 ; and it appeared that after the renewal in 1786 ought to have been made, Lord Montford assigned his life estate to Lord. Howe. Under those circumstances Sir William Grant decided the following points. First, that the present was a case of contribution. Secondly, that Lord Montford's assets, if sufficient, were first applicable to make good so much of the fine as corresponded with the period of his enjoyment. Thirdly, that Lady Montford his widow, the second tenant for life, was in like manner answerable for the period of her possession ; and that the residuary rents during her life were liable to be impounded, to make good the demand against her. Fourthly, that the trustees were answerable for the deficiency of any of those funds. And lastly, that the trustees, having in breach of their duty permitted the whole of the rents to be received by Lord Montford, could not call upon Lord Howe, his assignee,. as standing in his place, for a contribution, or to exempt them from any part of their' responsibility. The last decree was partially confirmed and in part altered by Lord Eldon, by whom it was considered on appeal. (k) The liabili- ty of the trustees and the exemption of Lord Hoiue were assented to by him, but as a larger fine for a renewal was required in consequence of the omission of the trustees to renew for twenty-eight years, his Lordship declared, that Lady Montford's estate was not liable to the trustees for such excess ; since as a married woman she was not chargeable with any default of renewal during her marriage ; and his Lordship further observed, that Lady Montford, in " 1799, was entitled by the settlement to possession of this leasehold estate, under a lease renewed in 1786 for fourteen years, in addition to twenty- six years then remaining unexpired, with a fund accumulating for the fine to be paid on the next r'enewat in 1800. If, therefore, this was to be thus understood, that as Lord Montford enjoyed from 1772 to 1779, and Lady Montford from 1799 to the year 1808, when a exceeding 3000Z. was paid, that sum was to be remembered as oetween his and her estate in this proportion, viz. his estate was to be charged according to the amount of the rents between 1772 and 1799, and she was to pay according to the rents from 1799 to 1808.'* (*) 19 Ves. 635. SECT. VI.] against prior Tenants for Life. 235 In those respects the original decree was altered with an additional declaration that Lord Montford's estate alone was answerable to the trustees for the increase of the fine required after a lapse of twenty- eight years.(/) The last case appears to have settled the manner in which fines for renewals are to be provided, when they are directed to be paid by trustees out of the rents and profits of the estate assigned or de- vised in trust for persons in succession. It seems very difficult to reconcile with it the case of Mian v. Backhouse. (ni) There lease- hold estates held for three lives were vested in trustees to the use of James Lilian for life, remainder to George Allan the elder for life, remainder to trustees for George Mian the younger for life, remain- der in trust fbr.his first and other sons in tail male., with remainders over ; and then followed the direction to the trustees to renew the leases, with a declaration that the fines, &c. should be raised and paid out of the rents and profits of any other part of his freehold estate, &c. (also vested in the trustees :) and he declared that the renewed leases should be made upon the same trusts as before ex- pressed of his freehold and copyhold estates. James Mian continu- ed in possession from the year 1785 to January 1790, when he died, and was succeeded by George Mhih the elder, who continued in possession from the latter periodjptil his death in May, 1808 ; and then George Mian the younger (the last tenant for life) entered as next in remainder. During the possession of George Allan the eld- er in 1804, one of the lives dropped; and in 1808 another fell in, upon which George Mian the younger applied to the Court for its opinion and direction as to the raising the fines for the renewals. And Sir Thomas Plumer, M. R. then V. C. declared that the fines were to be raised by mortgage or sale, and that George Mian the younger, should contribute in proportion to the advantage he deri- ved from the renewals. According to that decree, James Mian and George Mian the eld- er were permitted to receive the whole of the rents, without contri- buting any part of them to the renewals which had become necessary-. The present was the case of a trust, and the trustees were directed to raise the fines for renewals out of the rents and profits. Then according to Lord Montforjl v. Lord Cadogan, before stated, (and there is no difference between a renewable term for year's and a lease for lives renewable, )(n) the trustees ought to have provided a fund out of the annual rents and profits from the year 1785, sufficient, upon a fair calculation from the usual tables of the probable con- tinuance of the existing" ^lives, to answer the fine upon renewal on the dropping of one ofthem. 1 By this method, all the tenants for life would have received equal benefits under the trust, as must have been intended by the testator. In that 'case probably there Would have been no occasion to resort to a mortgage or sale, which could not have been in contemplation of the testator, as he did not confine the raising of the fines to the rents of the leasehold estates, but in- cluded in the trust the rents and profits of his other real property. The rents of all his real estates were included in the trust to raise the fines, which clearly showed his intention, that by rents. and pro- (/) 19 Ves. 640. (m) 2 Ves. & Bea. 65. (n) By Lord Eldon, 9 Ves. 559. 236 Rights of Legatees in remainder) [Cn. IV. fits he intended annual rents and profits, and which were applicable to raise the fines before any part of the corpus of the estates. Tin's seems to have been the foundation of Lord Thurlow's decree in Stone v. Theed,(o) in which the testator devised to trustees, a leasehold estate which he held for lives, together with all his other real property, and the residue of his personal estate, upon trust, out of the rent, and profits of the real, and the interest and produce of the personal estate, to pay an annuity to Jl. for life, and then to pay the rents and profits, and interest and produce, to B. for life, and from that time to pay an annuity to C. for life ; and on further trust to pay the remainder of the rents and profits, interest and pro- duce, to the children of C. for maintenance, and to convey to them the real, and pay the principal of his personal estate, at their ages of twenty-one ; but if there should be no child or children, or, there being such, all of them should 'die under twenty-one, remainder to the plaintiff, Mrs. Stone. Then followed a direction to the trustees to renew the lease when necessary, and to place at interest the overplus rents of his real, and also his personal estate. The testator died in 1778. B., the tenant for life, died in August 1780; when the plaintiff, Mrs. Stone, succeeded to the estate. In May 1780 a life dropped, and in January 1781 the trustees renewed, and paid a fine of 222/. 175. lOd. Another life dropped in 1786, and in March 1787 a fine on renewal was paid by the trustees; which sums were satisfied out of the rents and profit's of the aggregate fund of real property vested in them for the purpose, (the personal property not being productive.) And it was the effect of Lord Thurlow's decree to establish those payments : his Lordship declaring that the tes- tator's whole property was made a general fund and one trust, and that the trustees were to use the whole estate according to the will ; that the whole fund, the rents and profits, (the personal estate not being productive,) must pay the expenses of the trust ; and that the produce of the whole must be first applied to the purpose of the renewals. It seems a consequence from the last case, that if, in Allan v. Backhouse, it were not the duty of the trustees, as in TuordMontford v. Lord Cadogan, to provide out of the rents an accumulating fund for renewals; yet before a mortgage or sale of the leasehold estates was directed, the rents and profits of the testator's ot ter estates should have been first applied, which appear in the argument to have been considerable ; so that in this respect the two cases of Stone v. Theed, and Allan v. Backhouse, do not agree. Probably the following may be considered the rules applicable to the present subject : First. That when leaseholds for years renewable at certain periods, are vested in trustees for persons in succession for life, with a direc- tion to renew and pay the fines out of the rents and profits, such fines ought to be annually provided for by the trustees appropriating an accumulating fund out of those rents. Second. That the principle of the rule seems applicable to in- stances where leaseholds for lives are so devised; the calculation of the period of renewal to be made as before described, the tenants for life previous to such renewal being entitled to any excess of the (o) 2 Bro. C. C. 243. SECT. VI.] against prior Tenants for Life. 237 accumulating fund in the event of a renewal not being necessary within the estimated period, and consequently obliged to contribute in aid of that fund if the time for renewal happen within the above period. But that if a renewal became necessary within a week, or a very short time after the death of the testator, so as that the fine cannot be paid out of the annual rents, it is presumed that neces- sity will authorize the fine to be raised by mortgage, the interest of which must be paid by the tenants for life. And, Third. That, when not only the leasehold for lives, but other real estates, are devised to trustees as an aggregate fund to answer, out of the rents and profits, the fines for renewing the leaseholds, and the fund is limited in succession to several tenants for life, the whole of the rents must be applied in performance of the trust before any part of the aggregate fund can be mortgaged or sold for the purpose. But supposing the rents of the aggregate property in the hands of the trustees to be sufficient, and the leaseholds for lives are devised to one class of individuals, and the other estates to another class, it is conceived that the rents ought to be marshalled ; i. e. the rents of the leaseholds and the rents of the other estates ought to contribute pro rata in satisfaction of the demand. The equities of specific legatees in the marshalling of assets will appear in the Fifteenth Chapter. CHAPTER V. Of the Ademption and Abatement of Specific Legacies, SECT. I. Of the ADEMPTION of Specific Legacies. 1. Of stock. 2. Of debts or securities. 3. Of goods, ^c. 4. 'Of partnership shares. 5. Of leases for years and for lives. SECT. II. ABATEMENT of Specific Legacies. 1. Rule upon that subject. 2f. As to abatement amongst several legatees of the same specific fund, And 3. Of abatement of specific devises of freehold estates with specific legatees of chattels, under which head are considered estates pour autre vie. 4. As to abatement of Legacies in part specific, and in part general. SECT. I. Of the ADEMPTION of Specific Legacies. IN order to complete the title of the specific legatee to the thing given, it must be in such condition at the testator's death as descri- bed in his will. Such is the general rule, subject to the qualifica- tions after mentioned. The word " ademption," when applied to specific legacies of stock or of money, or securities for money,' must be considered as synoni- 238 Of the Jldemption [Cn. V. mous with the word " extinction." For it should be observed, that if stock, securities, or money, so bequeathed, be sold or disposed of, there is a complete extinction of the subjects, and nothing remains to which the words of the will can apply :() for if the proceeds from such sale or disposition were to be substituted and permitted to pass, the effect would be (as expressed by a learned Judge) to convert a specific into a general legacy. (6) But with respect to general lega- cies not given as portions, (c) the rule respecting ademption depends upon different considerations. The intention of the testator is im- material in the ademption of specific legacies, because the subject being extinct at the death of the testator, there is nothing upon which the will can operate; but it is otherwise in regard to general legacies which are payable out of the general personal estate : there the question whether any advancement by the testator in his life time to. the legatee shall be considered an ademption or in substitu- tion of the bounty given by the will must depend entirely upon the fact, that such was the testator's intention. It follows from the foregoing observations, that a distinction is to be made upon the present subject between legacies properly spe- cific, and legacies in their natures only specific, i. e. in some respects general, and in others specific ; instances of which were produced in the third chapter ; for since those latter legacies do not depend upon the specific fund appropriated for their payment, the extinc- tion of it cannot adeem such bequests. (d) It is now proposed to consider, First, The ademption of legacies that are regularly specific ; and, 1. Of stock. It may be considered as settled, that when stock is specifically be- queathed, and it does not wholly-, or does only in part exist at the testator's death, the legacy will either be totally or partially adeem- ed, as the case may be. Suppose then A. to bequeath to B. 3000J. three per cent, consols, part of A's stock then standing in his name in that fund; if the stock should not be so found it A.'s death, the legacy to B. will be wholly or in part adeemed, according to the state of the property, (e) Thus in dshburner v. JWGuire,(f) A. bequeathed to the follow- ing effect; "To B. now at school with the reverend, &c. my capi- tal stock of 1000Z. in the India company's stock, \vjHh th'e divi- dends," &.c. The fund was afterwards sold by A. ; and Lord Thur- low determined, after a review of all the preceding cases, that BSs legacy was adeemed. The principle of his Lordship's decree was that before stated, viz. that by sale of the specific stock the legacy was annihilated, and there was no subject to which the description of the bequest would apply. And it appears from Sir John Simeon's note of the subse- quent case of Badrick v. Stevens,(g) that a testator's intention to (a) 3 Bro. C. C. 432. Ed. by Belt. (6) 9 Ves. 360. (c) See next chapter. (a") Ambl. 568. (e) See Ashton v. Ashton, Forrest. 152. Evans v. Trififi, 6 Mad. 91. (/) 2 Bro. C. C. 108--114. also see Sleech v. Thorington, 2 Ves. sen. 561-564. Drink-water v. Falconer, Ibid. 623. and Humphreys v. Humphreys, 2 Cox, 184. severally stated ante, pp. 164. 168. 163. Birch v. Baker, Mose. 373. (g) Stated by Mr. Belt to that case, 3 Bro. C. C. 432. And see 2 Cox, 182. SECT. I.] of Specific Legacies. 239 adeem, or not to adeem the specific legacy, formed no considera- tion in such a case, for (said his Lordship) "the discharge of a debt (specifically bequeathed) is not strictly an ademption which depends upon the intention to adeem ; but it is an extinguishment of the le- gacy by annihilation of the subject liable." This being so, let us suppose the occurrence of a case where the testator sold the stock he had specifically bequeathed ; by which act the legacy became extinct ; and that he afterwards purchased stock in the same fund sufficient to answer the specific bequest. Would the legatee be en- titled to the stock so purchased in lieu of that which was bequeath- ed to him and had been annihilated 9 The opinions of some great Judges have been expressed in favour of the legatee .;(h) but there is no decision upon the subject. The case of Partridge v. Partridge referred to in the last note and the only one that bears any resem- blance to an authority, is that of a bequest not properly specific, but a legacy in its nature only specific (before described, )(i) and there- fore does not fall within the present inquiry. Considering, then, this question upon the principles before mentioned, it seems difficult to reconcile them with the opinions above referred to. For when a testator bequeaths particular stock which he possessed at the date of his will, and not at the period of his death, it is not easy to con- ceive how stock, which he afterwards purchased, can pass in lieu of that identical stock of which he had by express words of reference specifically disposed. The reasons against the construction are these : first, that the testator only intended to dispose of the identi- cal stock which he possessed whenhe made his will. Secondly, that the terms of the bequest are so framed as to extend to no other stock. Thirdly that the testator's intention to pass to the legatee the after purchased stock, in lieu of that disposed of, cannot avail, since there are no words in the will bequeathing it to him.(&) Fourthly, that a contrary construction would be inconsistent with the nature of a specific legacy, in allowing compensation for the destruction or non- existence of the thing specifically given ; and it would confound the distinction between a specific legacy, referring to the date of the will, and one expressly referring to the testator's death. And lastly, that cases of the present description differ from those where the stock or fund, remaining the same, or the same in substance, was held to pass to the legatee. For these reasons, it is presumed, that when stock, which the testator had at the time he made his will, is specifically bequeathed, and is sold by him, the legacy is irretrieva- bly gone, and that the legatee is not entitled to the benefit of any stock which the testator may have purchased in the same fund after the date of his will.(Z) From the view which has been taken of the ademption of spe- cific legacies, it follows that the intention of a testator is not a ne- cessary ingredient in the transaction ; and that the only thing to be ascertained is, whether the stock, of which the testator was possess- ed when he made his will, existed at the time of his death in the (A) By Lord Talbot in Partridge v. Partridge, Forrest. 227, by Lord Hard- tuicke, in Avelyn v. Ward, 1 Ves. sen. 426, and by Sir Thomas Seivell, M. R. in Drinkivater v. Falconer, 2 Ves. sen. 625. (0 Ante, p. 150. . ' (*) 2 Madd. 281. (/) Vide infra, sub. sec. 3. 240 Of the Ademption [Ca. IV. state described by such will ; and if not, then that the legacy is ne- ce8arily adeemed by the annihilation of the subject. Such is pre- sumed to be the general rule. But in forming opinions upon cases according to that rule, the following distinctions or qualifications appear to require attention. First. When the alteration of the fund is made by mere act or opera- tion, of law. If A. bequeathed to B. 3000Z. three per cent consols, and that fund were afterwards converted into -one of a different description by Act of Parliament, so that the fund and specification in the will were at variance, the conversion would not probably be adjudged an ademp- tion of the legacy ; because the alteration of the fund not having been made by the testator but the legislature, the act may not be allowed the effect of prejudicing the legatee ; and since the change might neither have been foreseen, nor could be prevented by the testator, it would be unjust to permit that transaction, to defeat the disposi- tion specifically made by his will.(m) Besides, the thing given is not annihilated, but exists under a different denomination, effected by the law alone, quee neminifacit injuriam. Secondly. The law will not permit a fraudulent transaction to operate to the injury of any person, whilst there remain any means to make reparation. Hence, a second qualification of the above rule may happen where a breach of trust has been committed, or any trick or device practised with a view to defeat the specific legacy. (w) Sup- pose, then, stock specifically bequeathed, to be sold or transferred into another fund by a trustee, without the knowledge or authority of the testator. It is conceived that such a transaction would not be permitted to defeat the bequest, upon the principle that the act of a trustee will not be allowed to prejudice the cestui que trust, or the persons claiming under him ; and that a court of equity will consider, for the purposes of justice, the stock as still subsisting in the fund described, and answering the specification in the will. It is also presumed, that the legatee is entitled to follow the subject into other funds, or to full recofnperise out of the trustee's property, as the nature of the case may require. And, Thirdly. If the fund, instead of being annihilated, remain the same or in substance the same, as at the date of the will, with some unim- portant alterations, so as not materially to change the interest which the testator then had, those slight variations will not adeem the spe- cific bequest. According to this qualification, if stock, specifically given, be merely transferred, with the testator's consent, from the name of his trustee into his own, it has been decided that such transfer will not operate to the injury of the legatee ; a decision not inconsistent with the principle which requires the stock specifically given at the date of the will, to be in existence at the death of the testator ; because the stock is in fact then in existence, and was never extinguished at any period after it was bequeathed ; so that, excluding any consideration of intention, the stock, specifically given, continuing in the same fund, and the property of the testator, both when he made his will and at his death,. (the possession of the (m) See Partridge, v. Partridge, Forrest. 226. Bronsdon v. Winter, Ambl. 59. () Fide 2 Vem. 748. ed. by Raithby. SECT. I.] Of Specific Legacies. 241 trustee being that of the testator,) a construction that the stock did not fall within the words or meaning of the bequest, in consequence of the mere change of the names in which it stood, i. e. from the name of the trustee into that of the cestui que trust, would be con- trary to the common sense, and if not to the strict letter, to the fair meaning of the legatory words. The case referred to is Dlngwell v. Askew,(6] and was to the following effect : Previously to the marriage of A. stock was vested in trustees to her separate use for life, then to the issue of the marriage, after- wards according to her appointment by will, -notwithstanding the marriage, and in default of appointment to A. absolutely. A. exe- cuted her power, and survived her husband. After which event she took a transfer of the stock from the trustees into her own name, and made no other will or disposition of it. The question was, whether the transfer was an ademption of the bequest ^ And Lord Kenyan, M. R. determined in the negative. The last case seems also an authority, that the transfer of the fund, specifically bequeathed, into the names of new trustees, will not affect the specific bequest. But to proceed one step further. Suppose the trustees to be authorized by deed or will, to change securities with the concurrence of A. the person who was empowered to dispose, and had disposed by will of the fund, then in stock; and they, with his consent, sold the stock specifically bequeathed, and invested the proceeds upon a mortgage. Would that be an ademp- tion 9 It is conceived that the transaction would not have that effect, since the change of securities being made under the authority in the original instrument, the new security (as usually declared,) is sub- ject to the trusts expressed in that instrument, one of which was for the benefit of the testamentary appointee of A. Hence, the act which would in other cases have effected an ademption by extinguishing the fund, is precluded from so doing in the present instance, from the nature of the transaction springing out, and part of the original instrument. The title of the appointee, moreover, did not rest solely upon the testamentary appointment, but was also derived under the instrument imparting that pow r er. Fourthly. The last qualification of the rule which will be noticed, occurs in instances where the testator lends the stock, specifically bequeathed, on condition of its being replaced. Cases of this kind are analogous to those where a cup, or other article, specifically given, is afterwards pledged by the testator, and continues so till his death ; a circumstance which, we have seen, instead of being an ademption, entitles the legatee to have the subject redeemed by the executor, and delivered according to the bequest.(p) So in the present instance, the testator continues owner of the stock, notwithstanding the loan of it; and although it be not literally existing in his possession at his decease, yet he is in fact substan- tially and beneficially possessed of it at that period, and it is pre- sumed that the transaction would not adeem the prior specific dis- position of the fund. r o) 1 Cox Rep. 427. and see Ambl. 260. 3 Bro. C. C, 416. Mose. 373-376. \fi) Sufira, p. 229. and 2 Bro. C. C. 113, VOL. i. H h 242 Of the Jtdemption [Cti. V. J. Of debts or securities. The rule requiring the existence of the subject, as specified in the will, at the testator's death, equally applies to specific legacies of debts or securities as to stock. It therefore may be stated as a general proposition, that if the debt specifically given be received by the testator, the bequest of it will be adeemed, since the subject is annihilated, and the proceeds do not fall within the description in the will. In Birch v. Baker,(g) A. being entitled under the will of B. to half of two-thirds of South Sea stock, India, Bank, and Orphan stock, leases, East India and South Sea bonds, mortgages, &c. be- queathed her share to trustees for the benefit of C. after payment of 2001. to D. A division was then made between A. and the other legatee of B. of their shares under JB.'s will, and *fl. received her moiety, consisting of several of the above securities, some of which she afterwards sold, and blended the proceeds with her other pro- perty. And Sir Joseph Jekyll, M. R. decided that the sales were ademptions. So also in Rider v. Wager,(r) B. specifically bequeathed to D. part of a debt due to him from C., and the remainder of it to E. B. called in the money ; and Lord King determined that the legacy was extinguished. In the last case, B. also bequeathed to F. a debt which F. owed to him. F. paid the money to B., and the legacy was held to be adeemed. In Ashburner v. M l Guire, before stated, (s) the bond-debt, spe- cifically bequeathed by A. to his sister and her children, was re- duced by the bankruptcy of the obligor, under whose commission A. received a dividend in respect of the debt. Lord Thurlow de- cided, that the dividend received by A. wag an ademption pro tanto, but that the legatees were entitled to the bond, and to subsequent dividends. That case was followed by Badrick. v. Stevens, in which Lord Thurlow made a similar decision. (t) So also in Stanky v. Potter, decided by the same Judge, and to be found in a preceding page,() his Lordship adhered to the two last authorities; observing, that when the case of Ashburner v. M l Guire was before him, he used his utmost endeavours in sifting all the preceding cases, and discovered that no 'certain rule could be drawn from them, except to inquire whether the legacy was spe- cific (generally the difficult question in those cases ;) and, if specific, whether the thing remained at the testator's death. His Lordship then remarked, that the consideration must be, as if a testator had given a particular horse to A., and then, if that horse died during the life of the testator, or was disposed of by him, there was nothing upon which the bequest could operate. It 'was his opinion, that the question in the cases did riot turn on the intention of the tes- tator, and that the idea of proceeding on the animus adimendi had (?) M se- 374 ( r ) 2 P. Will, 329, 330. 332. (a) Suflra, p. 173. and 2 Bro. C. C. 108-114. (0 Case stated ante, p. 183. and 3 Bro. C. C. 431. (u) Sufira, p. 174. and 2 Cox, 182. SECT. I.] of Specific Legacies. 243 introduced a degree of confusion in the cases which was inex- plicable, and that he could make no precise rule from them upon that ground. Next followed the case of Fryer v. Marris,(x) before partially stated, (y) in which the testatrix received 385Z. 18s. of the debt on note specifically bequeathed by her, and placed the money in the hands of B. and C., bankers; of which sum she drew out 10JL And Sir William Grant, M. R. determined, that the receipt of the former snm was an ademption, in conformity with the preceding cases,- and the principle established by them, viz. that the thing given and de- scribed no longer existed. It appears from early cases, that several Judges expressed opin- ions not only that in the ademption of -specific legacies, the testa- tor's intention to do so was essential, but also that such intention was sufficiently manifested, in the distinction where a testator, re- ceived a debt specifically bequeathed at his own instance, and where the debt was paid to him without his application ; such opinions ex- pressing in the former cases, that receipt of the debt amounted to an ademption, and that in the latter, payment was no ademption. These opinions were founded upon the following reasoning : that if. after the specific bequest of a debt, a testator, upon application* or by compulsion, obtained it, an inference arose, that by extinguish- ing the demand he intended to defeat t the legacy. But that when a testator, without solicitation, and ex mero motu of the debtor, or in the regular course of payment, received the debt specifically be- queathed, as no inference could be made that by such receipt he intended to defeat his prior disposition, the non-existence of the debt at his death, under such circumstances, should not be allowed to disappoint the specific legatee.(^) The fallacy of this distinction was soon discovered ; for it is not true that in all cases where a tes- tator applies for, or compels payment of his debt, he is induced to do so from an intention to defeat a prior testamentary disposition of it, but from prudential motives, such as the apparently declining circumstances of the debtor, and the like. These opinions were therefore rejected, and were succeeded by those expressive of the legacy's ademption, whether it was voluntarily or of necessity re- ceived by the testator; and upon the clear principle, that the sub- ject being extinguished, the specific bequest of it could not possibly take place. This change of opinion began in the cases below refer- red to;(a) and was approved and acted upon by Lord Thurlow in the cases of Jlshburner v. M l Guire,(b) Badrickv. Stevens,(c) and Stan- ley v. Pottered) before stated and referred to. In the case of Innes v. Johnson,(e) Lord Mvanley M. R., after observing that there was no occasion to enter into the distinction, as to ademption, between (.r) 9 Ves. 360. (z/) Supra, p. 176. (z) See Ormev. Smith, 1 Eq. Ca. Abr. 302. 2 Vern. 681. S. C. Partridge v. Partridge, Forrest, 228. Croc/cat v. Crockat, 2 P. Will. 165. Rider v. Wag- er, ibid. 330. Ellis v. Walker, Ambl. 311, and the observations of Lord Camaen on most of those cases, in the Attorney General v. Parkin, Ambl. 569. (a) Earl of Thomondv. Earl of Suffolk, 1 P. Will. 464. ' fordv. Fleming, 1 Eq. Ca. Abr. 302. 2 P. Will. 469, 5. C. Ashton v. Ashton, 3 P. Will. 385. Forrest, 152. S. C. and Humbling v. Lister, Ambl. 402. 2 Bro. C. C. 108. . (c) 3 Bro. C. C. 431. ) 2 Cox, 180. M 4 Ves. 574. (c) (e) 244 Of the Ademption [Cn. V. a voluntary payment by the debtor, and one by compulsion of the testator, said, had that consideration been requisite, he should have agreed with Lord Thurloio, that it made not the least difference. And in Fryer v. Morris,(f) Sir William Grant decided, that a vol- untary payment of part of the debt to the testatrix, was an ademption pro tanto. Upon the whole, it may be considered as the settled rule of the Court of Chancery, that under whatever circumstances the debt specifically bequeathed, is received by the testator, an ademption will be effected, upon the principle before stated, that the subject is annihilated, and nothing remains upon which the terms of the bequest can operate. This proposition was confirmed by Lord Thurlow's decree in Humphreys v. Humphrey '*,(#) in which A. being possessed of 5000Z. stock, bequeathed it to B. and C. in these words : " All the stock which I have in the three per cents, being about 50001. except 500/. which I give to C." He then de- vised other specific parts of his property to be sold, and directed the produce to be applied in discharge of a mortgage debt owing by him. ' After this, A. sold 20001. of the stock, and paid off' the mortgage with the proceeds; an act which Lord Thurlow held to be an ademption of the legacy, pro tanto; observing, that he was satisfied, from the consideration he had given to the cases on a for- mer occasion, that the only rule to be adhered to was, to ascertain whether the subject of the specific bequest remained in specie at the death of the testator ; and if it did not, that then there must be an end of the bequest ; that the idea of discussing what were the par- ticular motives and intention of the testator in each case, in destroy- ing the subject of the bequest, would be productive of endless un- certainty and confusion; and that therefore, so far as concerned the 20001. stock sold by the testator, the legacy was gone. These authorities were followed by Sir John Leach, V. C. in Bar- ker v. Rayner,(h) in which Walter Hammond effected two policies of insurance upon the life of his wife ; the one for 600i. and the other for 150ol. payable to himself, his executors, &c. within six months after his wife's death. By his will he gave all his right, title and interest in the policies, the policies themselves, and all benefit and advantage thereof to his executors and trustees, to pay the yearly premium during his wife's life, and after her death, he directed certain payments to be made out of the money to be re- ceived, and the remainder to be placed out upon securities at inter- est, and disposed of the principal and interest by the will. The testator survived his wife, who died after the will was made, and he received the amount of the policies, and after applying part of the money to particular purposes, he placed but at interest the remain- der upon securities, which were left in the hands of the executors. The question was, whether under those circumstances, the specific testamentary disposition of the policies was adeemed ? And the de- termination was in the affirmative, upon the principle that the things specifically given, were extinguished and gone at the death of the testator. And the Court said, " it was only to inquife whether the specific things remained at the testator's death, and it could not en- 360. () 2 Cox, 184, and supra, p, 163. SECT. I.] of Specific Legacies. 445 ter into the consideration whether they had or not ceased to exist by an intention to adeem on the part of the testator." Such being the general rule, we shall advert to some instances not falling within it, and in which, consequently, they were no ademptions. A case of that description is Crockat v. Crockat,(i) in which A. bequeathed the sum of 550. then in B.'s hands. It appeared that before the will was made A. had placed that sum with J5., and ob- tained his note for it. A. had also, before the making of his will, drawn several bills upon B., which reduced the 550L to 430Z. And it was held by the Master of the Rolls, that in this case there was no partial ademption, but that the whole legacy was payable ; upon the principle, that since all the bills were drawn before the date of the will, and as the note for the full sum of 550Z. was outstanding at .#.' death, he should be considered as renouncing the payments, and that he meant to give- the whole sum as a legacy. Or in other words, the note having been specifically bequeathed and in force when the tes- tator died, the drafts drawn upon its credit placed it in the condition of a thing pledged or mortgaged, a situation which imposed an obli- gation upon the executor to redeem and deliver it to the legatee. That seems to be the solid ground of decision. So also when an arrear of interest due upon a debt at the date of the will is specifically bequeathed, and the testator afterwards re- ceives interest upon the principal sum, such receipt will not be an ademption, if it appear that he appropriated the payment in discharge of interest accrued after .the making. of his will; for although the money so received be primn facie applicable in discharge of the in- terest which first became due, yet the^ creditor is permitted to ap- propriate it in payment of the interest accrued after the date of his will, so as to leave the arrear owing when the will was made, and specifically given, unliquidated, and consequently in existence at his death. But the onus of proving that intention falls upon the legatee. Thus in Graves v. Hughes,(k} A. being entitled to a debt on mort- gage with an arrear of interest, after reciting in her codicil that the then arrear was 6001. and upwards, according to her own computa- tion, bequeathed it to B. and C. It appeared from the Master's re- port, that the exact amount of interest due when the codicil was made amounted to 646. 8s. 3rf. A. continued to live during eleven years after the codicil, and received for interest 648?., which sum if applied in discharge of the interest due when the codicil was made, would have adeemed the legacy. But the Master found and report- ed upon the affidavit of D. that the money paid to A. after the codi- cil, was received by her in discharge of the interest which became due subsequently to the date of that instrument ; and under the above circumstances it was determined, that the arrear of interest which was owing when the codicil was made still remained, and was con- sequently the property of the specific legatee. Another class of cases not falling within the general rule applica- ble to ademptions, is where a testator shows an intention that the legacy should not fail although the debt specifically given be dis- charged during his life, by providing for that circumstance. In those (0 2 P. Will. 164. (*) 4 Madd. 383. 246 Of the. Jldemption [H. V. instances the bequests are specific quoad the debt, and general so far as it is necessary to resort to the assets upon the annihilation of the whole or any part of siich debt. And although a testator in providing for the event of the debt's discharge may have expressed himself imperfectly, a court of equity will nevertheless effectuate the visible intention, and supply the imperfection. Accordingly, in the case of the Earl of Thomond v. The Earl of SujjFolk,(l) A. being possessed of two bonds, the one for 2000J. from B. her grandson, and the other for 2000J. from C. her grand-daugh- ter, bequeathed both securities to C. and declared, that if all or any part of the two sums should be paid in before her death, C. should have 4000/. or so much money as the principal so paid in amounted to. A. released to B. his bond debt, without receiving any of the money. And the question was, whether, as the specific legacy of the bond was so adeemed by the release, C. was, notwithstanding, entitled to the amount out of ASs assets, under the declaration in her will, although literally and strictly the debt was not paid in; the only event (according to the natural import of those words) in which the value of the bond was directed to be paid out of the general estate*? And Lord Parker considered the intention to be clear, that if either bond were not in existence at the testator's death, the legatee should have the amount out of her estate. His Lordship also considered the release as implying payment of the debt, and equivalent to the receipt and return of it by the testatrix, and the same as if the will had said, " jf these debts be paid or discharged." The last class of cases to be noticed as not falling within the general rule of ademptions, is where the terms of the bequest are so comprehensive as to include within their compass the fund specifi- cally bequeathed, although it has undergone considerable alteration since the date of the will. For. since the substance of the thing given, viz. the debt or money' remains, and the subsequent alteration of security does not prevent it from answering the description in the will, the principles upon which the ademption of the specific lega- cies is founded do not apply. In illustration of the present subject; suppose A, to have notes and cash in the hands of J5., and to be- queath to C. the value of his estate then in the possession of B. If the notes and cash so specifically bequeathed be changed into ex- chequer bills, or bonds, or mortgages, and be in the hands of B. at 4.'s death, the alteration of securities will not adeem the bequest ; because the property which A. had. in the custody of B. at the date of the will, remained from that time in l?.'s possession to the death of A.-, and the exchequer bills, bonds, or mortgages, answered the description of value, the specification of the fund in the will. Upon' these principles Lord Thurlow decided the following case : In Pulsford v. Hunter, (m) A. by codicrl of Decemtyr 1779, after giving two small annuities, bequeathed as follows : " this is an ac- count of value now, in my possession, and out of which the said yearly sums are to be paid ; bank notes to the amount of 1901. cash 10Z. 10s., ditto in the hands of Mr.Drummond 2476Z. 5s., 267GZ. 15s.; the in- terest of the remaining part to be applied for the use and education of my grand-children, till they arrive at- the age of twenty-one, and (0 1 P. Will, 4C2-464. (m) 3 Bro. C. C, 416. SECT. I.] of Specific Legacies, 245 the principal to be then equally divided amongst them," &c. It ap- peared that A. had no cash in possession at his death ; but that he was possessed of two bank notes amounting to 301. ; also, that Hun- ter in January 1779, and at .#.' request, left with Messrs. Drummond two navy bills t the property of A., to the amount of 24621. 5s. 4d. ; and that in August 1790, government discharged the navy bills and interest with seventeen exchequer bills of 100Z. each, and with 92,11. Is. cash, making a total of 2621 1. Is.', which exchequer bills re- mained in the hands of Messrs. Drummond, in the name of Hunter, and the 9211. Is. placed to his account; that in September 1780, Hunter drew a draft on Drummond for 2ll. Is. in favour of the tes- tator, which was paid ; and he afterwards took out the remainder of the sum, and bought nine other exchequer bills of IQOl. each, and left them with Drummond'm his .own name, which made up twenty- six exchequer bills; that afterwards sixteen of the bills were depo- sited with Drummond at the testator's request, in ,his own name, and the remaining ten bills were pai'd to Hunter, and another person, in satisfaction of a debt of 1000Z., and it appeared that the testator never had any property, in the hands of Drummond, in his own name, except as before stated. It was one of the questions, whether, as at the time of the bequest the property in the possession of Drum- mond was navy bills, and had been subseqently altered in the man- ner before mentioned, the legacy was not adeemed ; or, whether the grand-children were entitled to the sixteen exchequer bills remain- ing in the hands of Drummond at the death of the testator ? And Lord Thurlow determined in their favour ; observing that the ques- tion in these cases was, whether the specification of the thing be- queathed remained the same at the testator's death as it was at the time of the bequest. If, therefore, the present had been a bequest of navy bills, he must have thought that the grand-children could not have taken the exchequer bills, because the specification was not the same. The thing given would not have been in existence at the tes- tator's death, but that the word in the codicil, was "value," a de- scription answered by the exchequer bills which remained, and were value in the hands of Drummond; his Lordship, therefore, deter- mined as above. 3. We shall next consider the ademption of specific legacies of goods, &c. It was shown in the fourth chapter,(w) that if the terms of the be- quest referred to specific articles. in the possession of the testator when he made his will, those only would pass which he then had;(o) and that if the testamentary words related to the period of his death, goods, &c. which were in his possession at that time would be in- cluded.^) Hence there appears to be a distinction between those two cases in relation to ademption, in the latter every article dispo- sed of between the date of the will and the death of the testator will be an ademption; but if they be replaced by others, or be increased, the new articles will pass to the legatee, because they answer the description of the bequest: but it is otherwise in the former case, where the gift is limited and confined to such goods only as belong- () Sufira, p, 222. (o) Ambl. 281. (/z) 2 Vern. 688. 246 Of the Jldemption [Cn. V, ed to the testator at the date of his will, for by the disposition of any of them the subjects specifically bequeathed are to that extent anni- hilated ; and as the words of the bequest do not include articles after- wards acquired, they cannot pass in substitution of or in addition to those sold or disposed of. The observations which have been made in considering the ademption of specific legacies of stock and debts equally apply to the present subject of goods. In Green v. Symonds,(q) the testator bequeathed to C. all his books at his chambers in the Temple. He afterwards removed his books into the country, and the act was held to extinguish the legacy. So also in Heseltine v. Heseltine,(r) the bequest was of " all the testator's household goods, plate, linen and china, and all the wine and other liquors, goods and chattels whatsoever, which should be in or about his dwelling house at B. and C. at the time of his death ; and also his coach and other carriages, with his horses and all his live stock at C." After this the testator took a house in D. and re- moved to it the greater part of the furniture from his house at J&, The removal was adjudged to be an ademption. The last two cases were determined upon the personal acts of the testators. But the effect will be the same if the removal of the arti- cles specifically bequeathed be by an agent officiating under a gene- ral authority, and the act meet with the approbation of a testator^ and probably without the appearance of any such approval, for the act of such an agent is that of the testator. Accordingly in the case of Skqftesbury v. Shqftesbury,(s) A., be- fore he went abroad for the benefit of his health, bequeathed to his wife all the plate, &c. which should be in his house at C. at the pe- riod of his death. During the absence of A. his steward, acting under a general authority, procured the absolute owner of the house to accept a surrender of JL?s lease, and in consequence the steward removed ./?.' plate, &.c. to another house belonging to #. ; a trans- action afterwards approved of by /?. And the question being whether the removal of the plate, &c. was an ademption of the legacy, it was decided in the affirmative. The general rule that goods specifically bequeathed must be in the place described at the death of the testator, may be inapplicable to some cases, so that their removal during his life will not create an ademption. The principle seems to be this, that the bequests of the articles must be supposed to be made, subject to the several accidents and contingencies to which they are exposed. In which cases, if by any of those accidents or contingencies, the goods, by removal, do not literally answer the specification in the will, a court of equity will, notwithstanding, consider them as being in the house or place at the testator's death. This appears to be the true prin- ciple of the authorities upon the subject. A qualification or exception to the general rule appears, there- fore, to occur when the goods specifically given are removed out of the house described for the sake of preservation from fire,( ) an ac- cident for which they were liable to be removed when the will was made. (?) 1 Bro. C. C. 129, in a note. (r) 3 Madd. 276. () 2 Vern, 747. Ed. by Raithby. (f) 1 Ves. sen. 273. SECT. I.] of Specific Legacies. 247 So also it would seem, that if the goods were removed by fraud, or without the testator's knowledge or authority, the act would not *be permitted to adeem the specific bequest of them, as may be col- lected from the declaration in the decree pronounced in the case of Shaftesbury v. Shaftesbury. (u) Another probable qualification to the above rule, and founded upon the principle before stated, may happen, when, from the nature of the place in which the goods are specified to be, it is considered that the locality of them was not referred to as essential to the be- quest, but as merely descriptive of the articles meant to be given, and substituted in lieu of a schedule particularizing them. In conformity with this remark, Lord Hardwicke, in the case of Ward v. Turner,(x] took a distinction between goods in a house and goods in a ship ; observing that a bequest of goods on board of a ship, must be sup- posed to be made with a view to the several accidents and contin- gencies to which they were liable ; and that should it be determin- ed that if by any accident the goods should not be on board at the testator's death, they should not pass,. such a decision would defeat several marine wills.' His Lordship then remarked, that if the goods were removed for preservation, as if the ship were leaky or likely to founder, or if the testator were removed to another ship (his goods of course accompanying him) a contingency to which he was daily subject, and an order which he could not resist, neither of those circumstances would adeem the specific bequest he had made of them. Under the present qualification or exception to the general rule, those instances may be classed, where, for example, a person having two houses A. and B. at which he alternately resides, and being pos- sessed of only one set of furniture, which he removes with himself to each house, bequeaths, whilst living in A. " all his furniture at A" to C. Although the whole of the furniture may be in house B. be- cause the testator happened to die there, yet the accident of his be- ing resident in that house at the time of his death, with the furniture, will not be an ademption of the legacy. For under the above cir- cumstances the locality of the HirnitUre at house A. at the period of his decease, was not of the essence of the legacy ; the bequest being made with a view and consideration of the accident of their being in house B. at the" death of the testator; so that the disposi- tion was nothing more in effect than a specific bequest. of his house- hold furniture. Upon such reasoning as above, Lord Thurlow made the following decision : In Land v. Devaynes,(y) B. after bequeathing to his wife 1000Z. devised to her " all his plate, linen and furniture in his house in ) the devise extending to the whole trust : and the word " advantages," his Lordship observed, was sufficient to include all the advantages and benefits belonging to the trust, and consequently, all renewals. That Sir William Grant, M. R. considered the decision of the last case to have been made in consequence of the devise being of a trust and not of a legal term, appears from his criticism in the case of Slat- terv. Noton;(q) in which he said, "I think it will be found that the case of Carte v. Carte, is the only one in which the renewed lease was held to pass without any words directly applicable to a future interest; and that case is very distinguishable from the present. (n) Case last referred to, p. 179. (o) 3 Atk. 174. Ambl. 28. S. C. (/?) 3 Atk, 176-179. (?) 16 Ves. 201. stated supra, p. 252. 254 Of the Ademption [Cn. V. Lord Hardwicke lays considerable stress upon the nature of the sub- ject of disposition; the trust of a term, not a legal interest; and says, that distinguishes it from the decided cases. Next, the words in the n ill \\rre conceived to be sufficient to take in all the advantages and benefits belonging to the trust, one of which was that of the re- moval ; and the devisee could hardly be said to have all the advan- tages arising and accruing from the former lease, unless he had the advantage of substituting the renewed lease in its place." It appears, from the cases before stated, upon devises of legal in- terests for years, of which the testators were possessed) that the ground upon which the Court of Chancery decided that renewed interests in the property did not pass under the prior wills, was from the terms of the bequests being insufficient to include them. And it further appears, that although the words of bequest be sufficient in their import to pass the renewed interests, so as to prevent an ademp- tion in consequence of the surrenders of the old leases, yet the words will not be allowed that effect if they be confined to interests which testators had at the dates of their wills. If, however, the ex- pressions have a prospective or future operation, the specific devisee will not be disappointed of his legacy by a testator surrendering the old and taking a new lease, since he will be entitled to the latter un- der the terms of the bequest. If, then, the devise were of " all the estate, right and interest which the testator has or shall have to come in lands held by him under a lease from Jl. at the time of his death," and the testator renewed the lease, it is presumed that the specific devisee would be entitled to it.(r) So also if the old lease contained a covenant on the part of the lessor to renew, and the lessee devised " all his right and interest under or by virtue of the lease" to B., it seems but reasonable that a new lease taken by the testator after making his will should pass to J3., since the terms of the bequest, and the testator's title under the old lease, show that he intended to pass whatever interest he had or should have in consequence of that lease at his death ; and a renewed lease is an interest of the latter description. (s) When the devise is not of a specific term or lease, or of the in- terest which the testator had at the date of his will, but leasehold property is bequeathed as .part of his general estate, a renewal of the lease by the testator will not'be an ademption of the devise ; for such a disposition is not specific, but general, passing all the goods and chattels which the testator should be possessed of at his death ; and the mention of the leasehold estate is no more than a specification of one of the particulars of which the general estate consisted ; so that as the purchase of leasehold property after the will is made would be included in the terms of the bequest, it follows that a sub- sequent renewal by the testator of an old lease will equally pass to the legatee. In illustration of this : A. devised "aM and singular his leasehold estate, goods, chattels, and personal estate whatsoever, to his daughter B.;" and in the re- siduary clause he repeated the words "all and singular." A. after- wards renewed a lease with the dean and chapter of Windsor; and it was a question, whether the renewal of the lease was an ademption'? (r) Vide Lord Eldon'a opinion James v. Dean, 11 Vcs. 389. (r) See last reference. SECT. II. ]J of Specific Legacies. 253 And Lord Hardwicke determined in the negative, for the reasons before mentioned,() SECONDLY, as to leases for lives. The renewal of leases for lives will always create an ademption, when such renewal is made after the date of the will, because by the surrender of the old leases there is nothing upon which the devise can operate. It cannot p.ass the old estates because that was deter- mined- by the surrender, and it cannot transfer the new estate ac- quired by the renewal, since that being freehold, it is a rule that no freehold interest can pass by a will, but such which a testator was seised of, or entitled to, when he made that instrument. () SECT. II. ABATEMENT of Specific Legacies. Having in the preceding section treated of those acts of a testator which will operate as ademptions of specific legacies, it is intended to consider, in the present section, the circumstances under which specific legatees will be under the necessity of parting with the whole, or portions of their legacies, although the subjects devised to them remained and were not adeemed at the testator's death. This obligation upon specific legatees is technically known by the term " abatement." 1. It is a rule', as noticed in the beginning of the third chapter,(a;J that specific legatees can only be called upon by the executor for abatement, upon failure of the general personal estate to discharge debts. These legacies, therefore, must be fully satisfied to the preju- dice of general legatees. But when the personal assets, not specifi- cally bequeathed, are deficient to pay all the debts, then the specific legatees must abate or contribute in proportion to the value of their individual legacies.(t/) The .principal is the presumed intention of the testator, (presumed from his severing specific parts of his per- sonal estate from the rest, and bequeathing them specifically,) to give a preference to those legatees. The rule of abatement, as before stated, is clearly settled. The principal difficulty is to ascertain when the legacies are specific, a subject discussed in the third chapter, and from which it will appear what legacies are and what are not specific. After the preceding observations, we shall proceed to consider instances of abatement, that are likely to occur in practice, and re- quire particular consideration. 2. Cases, may arise of stock, or of the proceeds of an estate di- rected to be sold, being specifically given in fractional parts, and testators may have miscalculated the amount of the stock, and may have been mistaken in the probable .proceeds to arise from the estate to be sold, so that the stock and such proceeds are insuffi- cient to answer the whole of the portions of them given or intended for the several legatees ; or it may be necessary to resort to those funds, so parcelled out, for contribution upon a deficiency of assets (0 Stirling' v. Lydiard, 3 Atk. 199. Digby v. Legard, Dick. Rep. 500-503. (u) See IP. Will. 575. Manvood v. Turner, 3 P. Will. 170. Abney v. Miller, 2 Atk. 597.- Digby v.Legad, Dick. Rep, 500. Cited 1 Bro. C. C. 501. 3 P. Will, note p. 22. (x) Supra, p. 150. (y) Slecch v. Tliorington, 2 Ves. sen. 561-564. Clifton v. Burt, 1 P. Will, 680. Duke of Devon v. Atkins, 2 P. Will. 383. VOL. i. K k 254 Of the Ademption [On. V. to pay debts, and in consequence the application of the general rule in regard to abatement may be attended with uncertainty. In all those cases the intention of the testator, to be collected from his will, is the guide;- and it would seem, from the authorities after re- ferred to, that, in general, if the person to whom the last fractional part of the stock or proceeds is given, be appointed to take it as the residue or remainder of the specific fund, whatever may be its amount, then he, as residuary legatee, will only be entitled 'to the surplus of the fund, after full satisfaction of the other aliquot parts of it specifically bequeathed; so that such person in the character of residuary legatee can show no right to call upon the particular legatees of fractional parts of the stock or proceeds to abate, for since, if there had been an excess of the funds, he, as residuary legatee, would have been entitled to it; so, if there be a deficiency, it is only equitable that his share should be minus in that propor- tion. Upon this principle Lord Thurlow determined in the case of Danvers v. Manning,(z) before stated. (a) But although the last aliquot share of the fund be given by the word " remainder" or " residue," yet if, from the context of the will, it appear to have been the testator's intention that all the spe- cific legatees should have certain defined parts of proportions of the subject, by whatever words they were bequeathed, then the last named legatee, although in terms a residuary legatee, will be en- titled to call upon the other legatees of parts of the fund to abate equally with him upon' their respective shares. An instance of this occurred in Page v. Leapingwell,(b) stated in the third chapter.(c) 3. It has been observed, that the testator's intention is the prin- ciple upon which a court of equity acts in arrangements of abate- ment; in conformity with which, if the testator's freehold estate be subject to debts, a specific devisee of it will be obliged to contri- bute upon a deficiency of the general personal assets with the spe- cific legatee of a chattel. Accordingly, if a freehold estate be devised. to A. and a lease- hold to B. and the testator die indebted by bond to an amount more than sufficient to exhaust the personal fund, B. may compel A. to abate or contribute with him to the satisfaction of the debts. The reason is, that both estates are liable to those demands, and it was equally the testator's intention that .B. should have the leasehold, as that A. should have the freehold estate. This was decided in the case of Long v. Short.(d) But the determination would be dif- ferent if the debts were only by simple contract, and were not charged upon the real fund ; for then the leasehold, as the sole re- maining estate liable to those duties, must be wholly applied to- wards their liquidation. From the preceding observations, the following remarks occur respecting estates pour autre vie of which a testator was seised at the time of his will, and of his death. If an estate limited to a tes- tator and his Jmrs during the life of A. be devised by him to E. and a leasehold estate to C. and the general personal assets are in- \ Z \ 1 E I' C " oo 19 ' 22 ' 1 Cox > Re P- 203 ' & C. and see 1 P. Will. 404. (7) ? f rViil. 2 ^. W 18 ^ 463> V Su * ra > P- 154 ' SECT. II.] of Specific Legacies. 255 sufficient to pay all the debts by specialty, B. and C. must contri- bute in proportion to their legacies in supplying the deficiency; be- cause both estates are liable to those debts, the freehold pour autre vie being placed in the same situation in that respect under the statute of fraudulent devises(e) as an estate of inheritance. But as estates pour autre vie so limited to the heirs are not liable to simple contract debts, C. could not call upon B. to abate in respect of them. If, however, -the grant of the estate pour autre vie had been limited to the testator, his executors, &c. since that species of inte- rest is made personal estate by the statute of frauds,(/) if speci- fically devised as before, B. would be liable to abate with C. in dis- charge of debts by simple contract, as well as those by specialty. (g) It has been nqticed that, in general, specific legatees are not compellable to abate in favour of general legatees ; but to this rule, as to most others, there is an exception. For if the whole of a tes- tator's personal property be disposed of specifically, and he be- queath general legacies, the latter must be paid out of the former. Suppose, then, a person possessing personal estate at B. and C. only, to bequeath it to D. and E. and then to give a legacy to jP. The personal estate at B. and C. will be liable to the payment of the legacy in proportion to their several amounts, because there never were any other funds out of which it could have been satis- fied, and the usual presumption of preference intended by testators in favour of specific legatees is repelled in this instance. (h) 4. It is proper in conclusion, to refer to those legacies which are in one sense, specific, and in another, general. They have been de- scribed in a preceding chapter, as bequests of money, with reference to a particular fund for their payment, and not simply a gift of the specific fund itself.(i) Those legatees have such a lien upon the specific fund referred to, that they will not be obliged to abate with general legatees ;(&) and in this, as in the preceding cases, the testa- tor's intention is the principle; for it is inferred, that he, in referring to specific parts of his estate for payment of particular legacies, in- tended those legacies a preference to others which he had not so secured. Thus, if *#. bequeathed to B. 5001. out of a debt of 1000Z. or out of hjs 2000Z. three per cent, consols; B. will not be obliged to abate with the general legatees upon a deficiency of general assets to pay all debts and legacies. This was so settled in the cases below re- ferred to(Z), and before stated. But if the fund out of which the lega- cy is payable, happen, from any cause, to be insufficient fully to dis- charge it, and the personal estate fall short to answer the deficiency, and wholly to pay the other legacies, B. is so far a general legatee, (e) 3 & 4 Will. & Mary, chap. 14. and see Westfaling v. Westfaling, 3 Atk. 460-465. (/) 29 Char.' II. chap. 3. sect. 12. (#) Duke of Devon v. Atkins, 2 P. Will. 381. and see Atkinson v. Baker, 4 Term Rep. 230. Campbell v. Sandys, 1 Scho. & Lefroy, 281-289, Sec. and Ripley v. Waternuorth, 7 Ves. 425. 441, See. (A) By.the Chancellor in Sayer v. tteyer, Pre. Ch. 393. (z) See the beginning of chap. 3. p. 150, and pp. 168. 181. () Acton v. Acton, 1 Menv. 178, stafed*sz*/;ra, p. 183. Smallbone v. Brace, Finch. 303. (/) Roberts v. Pocock, 4 Ves. 150160, ante-, p. 181. and Lambert v. Lambert, 11 Ves. 607, supra, p. 171. 256 Of General Legacies, [Cn. VI. as that he may oblige those other legatees to abate and contribute with him their proportions of the deficiency in the fund. B. however, can be in no better condition than a specific legatee, so that if the other general assets be insufficient to pay all the debts, he must abate with other specific legatees, and in this respect he is to be considered a specific legatee, and entitled to call for such contri- bution, (m) CHAPTER VI. Of General Legacies, and their Jldemption, and of Parol Evi- dence, in certain cases on that subject. SECT. I. Of the ademption of legacies given as portions to chil- dren by their father. \.W r hen the children are legitimate. 2. Exceptions to the presumption of ademption in cases under the last article. SECT. II. Of the ademption of Lega'cies by subsequent advance- ments when the legatees are considered strangers to the testator, and the legacies not portions. 1. When the legacies are mere bounties; and of bequests to natural children by their putative father. 2. When a testator has placed himself m loco parentis. 3 and 4. Of the admissibility of parol evidence on the last subject; as also to prove an intention to adeem when the testator is, or is considered to be, a stran- ger to the legatee. 5. Of the sufficiency and insufficiency of such evidence when admissible. 6. And the different degrees of importance attached to parol evidence in detailing declarations of testators, in regard to the times when and to whom they were made. A LEGACY is general when it is so given as not to amount to a be- quest of a specific part of a testator's personal estate ; as of a sum of money generally, or out of the testator's personal estate, and the like. (a) In the beginning of the last chapter it was attempted to explain the distinction of ademption as applicable to a specific or to a ge- neral legacy not given as a portion.. It was considered that an in- tention to adeem by a testator's receipt of the subject specifically given was immaterial, since the legacy must be necessarily defeated, whatever the testator's meaning or purpose might have been, because thing was extinct, and nothing jemained at his death to which sstamentary description cpuld apply. But that with respect to general legacies, not given as portions, which are payable out of the (m) 4 Ves. 160. (a) See chap. II. passim, and particularly pp. 49. -50. 60.' 74. SECT. VI.] and their Ademption. 257 general personal estate, intention is of the very essence of ademp- tion; since, -whether an advancement by a testator during his life should or should net be a satisfaction, or in substitution of what he had bequeathed to the person so advanced, is a question of fact, which can only be resolved by reference to the' intention of the donor. (6) In treating upon the subjects of the present chapter we shall begin, SECT. I. With the ademptions apportions given by will. 1. It is now the settled doctrine of a Court of Equity, that where a father gives a legacy to a legitimate child, without stating the pur- pose for which it was given, he is to be presumed as having intended it as a portion, whether he call it so or not ; and that if he afterwards advance a portion upon the child's marriage, it is a satisfaction of .the legacy, the advancement and the legacy being .for the same purpose. And it will be a complete ademption of the legacy, although the sum advanced be riot equal to, but less than the testamentary portion; and for this reason, that the father, owing his child a debt of nature, is sole judge of the amount of the provision by which he intends to satisfy it ; and although at the date of his will he conceived that he could not discharge his moral obligation with less than, suppose 10,000/. ; yet, that by a change of circumstances, and of his senti- ments upon the extent of tha*t obligation, he thought that it might be satisfied by an advance of a portion of 5000Z.(c) In ex parte Du- bost,(d") Lord Eldon seems to consider the doctrine of the Court to be this : that where a. father gives a legacy to a child it must be un- derstood as a poi'tion, although not so described, because it is a pro- vision by a parent for his child. And that the father afterwards ad- vancing a portion for that child, will by that act adeem the legacy, although there may be slight circumstances of difference between the advancement and the portion, and a* difference in amount.(e) We shall next proceed to adduce authorities in support of the above observations. FIRST,. Of the advancement by a parent to his child being primd facie an ademption of a legacy given to it by his will. In Elkenhead's ca.se^(f) a father bequeathed 1000Z. a piece to his five daughters. He afterwards advanced, upon the marriage of one of them 100Q/., and it was determined that her legacy or portion was adeemed. So also in Ward \. Lant,(g) A. bequeathed 50001!.* a piece to his four daughters as their portions, to be raised out of his real estates ; and he afterwards advanced to. one. of them upon marriage 4000Z.; which was decided to bean ademption of the, legacy. The Master of the Rolls held the same doctrine in Scotton v. Scotton,(h} and in Tapper \. Chalcrqft,(i) a case before Lord Hard- wicke in the year 1739, his Lordship determined, that a legacy given to a daughter by her father was adeemed by his subsequent advance- ment of a marriage portion. Again, In Watson v. Lord Lincoln,(k) Mr. Pelham having four daugh- ters, appointed by will under a power in his marriage settlement (6) Chap. V. pp. 238. 253. 254. (c) 18 Ves. 151. (r/) Ibid. 153. (e) See 2 Atk. 518. and 17 Ves. 191. 2 Cox's Ca. 220. (/) Cited 2 Vern. 257. and see Farnham v. Phillifis, 2 Atk. 215. (g) Pre, Ch. 182. (A) 1 Stra. 236. (i) Cited'2 Atk. 492. (/t) Ambl. 325. 258 General Legacies, [Cn. VI. 10 OOOZ. among them, with the exception of Lady Lincoln, whom he had advanced. And he bequeathed his personal estate amongst his daughter's, again excluding Lady Lincoln. After this, Grace, one of the daughters, married Mr. Watson ; on which occasion her father advanced to her 20,000/. by applying part of the 10,OOOZ. and other- wise. One of the questions was, whether that advancement was an ademption of the legacy '! And Lord Hardwicke decided in the affirmative, upon two grounds ; first, because both provisions being, for the same purpose, viz. a portion, a court of equity inclined against double portions : arid secondly, because the advancement was a performance of the father's moral obligation to provide for his child, which he once intended fo do by his will. And in Grave v. Salisbury, (I] Lord Thurlow admits the doctrine to be settled as. before stated, although he regrets it. His expres- sions are, " the Court has certainly presumed against double portions; and although it has encouraged that conjecture with a degree of sharpness to which I cannot reconcile myself, yet wherever a provi- sion is made directly, or as a portion by a parent or person in loco parentis, I will not displace the rule laid down by wiser men, viz. that it "shall be a satisfaction, however reluctant I may be to follow it." The case of Upton v. Prince(m) may here be introduced, which is in fact a case of ademption, though one in which the testamentary provision was made subsequently to the advancement, which at the making of the will, the testator had forgotten or mistaken: the receipt of the sum advanced expressly acknowledged the advancement to be in part of any testamentary provision there had been, or which should thereafter be made by the father. In that case, William Prince had issue two sons, William and Peter, and four daughters, and, in his lifetime, advanced each of them 1500Z. and took from them each a receipt in the following words : "Received of my father, William Prince, the sum of 1500Z. which I do hereby acknowledge to be on account and in part of what he has given, or shall in or by his last will give unto me his son." Some time after, William Prince made his will, which con- tained the following words: "And whereas, I have heretofore paid to, given or advanced with my children, William, Elizabeth', and Sarah, the sum of 1500Z. a piece; now, I do hereby in like manner, give and bequeath unto my three other children, Peter, Mary, and Anne, the several sums of 1500/. a piece ;" and he then gave the residue equally amongst his children. William Prince, the father, died without revoking his 5vill, and it was insisted by Peter, that the re- ceipt given to his father could not control the express gift of the father subsequent ; and the father's omitting Peter in the mention of advancement showed he plainly intended a difference between them ; the receipts given by both, and the case of both being the same. But the Lord Chancellor decreed the 1500Z. received by Peter in his father's lifetime, .to be a satisfaction for what the father gave him by his will; and that he should not have another 15001 upon the latter words. (01 Bro. C. C. 427. and Jenkins v. Powell, 2 Vern. 115. (m) Cas. Tern, Tab. 71, 3d edit. t SECT. I.] and their Ademption. 259 The before mentioned cases and opinions sufficiently prove the accuracy of Lord Eldon's first proposition in ex parte Dubost, viz. that where a father gives a legacy to a child, it is to be under- stood as a portion, although it be not so expressed ; and that a sub- sequent advancement by him will be an ademption of the bequest. The authorities which have been produced were of advancements larger than, or equal to, the testamentary .portions, but the cases next adduced will prove, SECONDLY, his Lordship's remaining proposition, that slight cir- cumstances of difference between the advancement and the portion will not repel the presumed intention. Suppose then the advancement to be of inferior amount to the portion given by will ; it has been decided, for the reasons before stated, (n) that the former will be a complete ademption of the latter. In Hartop v. Whitmore,(o) A. bequeathed to his daughter a portion of 3001. and then gave her upon marriage a portion of 2001. He lived four years afterwards without having revoked his will, and Lord Parker, C. determined that the advancement was a total ademption of the testamentary portion. And with respect to the objection which was taken, that If A. had meant by the advancement to adeem the legacy, he would not have lived four years after that transaction with- out revoking the bequest, his Lordship answered, there was no ne- cessity for A. to make such revocation, since he had effectually done so by the advancement. So also in Clarke v. Burgoine,(p) B. gave to his daughter two le- gacies amounting to 7000Z. He afterwards, upon the marriage of the legatee, paid 20001. in part of a portion, and covenanted to pay 4000L more at his death. It-*vas declared by Lord Camden, C., that B. having advanced a portion of 60001. on the marriage of his daugh- ter, viz. 20001. in prcesenti, and 40001. at his decease, the two lega- cies of 70001. were adeemed. Instances in which the advancement of a less sum may only be a partial ademption of a testamentary portion, are where a testator has declared his intention, either by writing or verbally, that the advance shall be restricted. to that purpose. This occurred in Hoskins v. Hoskins,(q) in which case it was pro- ved that the father- in paying 6501. for the purchase of a cornet of horse for his son, intended that the sum should be deducted out of 750/. which he had left him by will. If a difference in amount between the advancement and the tes- tamentary portion will not repel the presumed ademption by the for- mer, it seems to follow that the slighter difference between them of the times of payment, when both are certain, will not have that effect. Accordingly in Hartopp v. Hartopp,(r) A. bequeathed 3000/. for the portions of his younger son and daughter B. and C., and such other children as he might have, in equal shares ; to be vested in- terests in daughters at twenty-one, or on marriage, with the consent (n) P. 257. (o) 1 P. Will. 681. and see Mr. Cox's note for a further statement, though the principle of the decision is the same, and agrees with the report. (fi) 1 Dick. 353. (?) Pre. Ch. 263. and see Thellusson v. Woodford, 4 Madd. 420. S, P. (r) irVes. 184. 254 Of the Ademption [Cn. V. to pay debts, and in consequence the application of the general rule in regard to abatement may be attended with uncertainty. In all those cases the intention of the testator, to be collected from his will, is the guide; and it would seem, from the authorities after re- ferred to, that, in general, if the person to whom the last fractional part of the stock or proceeds is given, be appointed to take it as the residue or remainder of the specific fund, whatever may be its amount, then he, as residuary legatee, will only be entitled to the surplus of the fund, after full satisfaction of the Other aliquot parts of it specifically bequeathed; so that such person in the character of residuary legatee can show no right to call upon the particular legatees of fractional parts of the stock or proceeds to abate, for since, if there had been an excess of the funds, he, as residuary legatee, would have been entitled to it; so, if there be a deficiency, it is only equitable that his share should be minus in that propor- tion. Upon this principle Lord Thurlow determined in the case of Danvers v. Manning,(z] before stated. (a) But although the last aliquot share of the fund be given by the word "remainder" or "residue," yet if, from the context of the will, it appear to have been the testator's intention that all the spe- cific legatees should have certain defined parts of proportions of the subject, by whatever words they were bequeathed, then (he last named legatee, although in terms a residuary legatee, will be en- titled to call upon the other legatees of parts of the fund to abate equally with him upon their respective shares. An instance of this occurred in Page v. Leapingwell,(b) stated in the third chapter.(c) 3. It has been observed, that the testator's intention is the prin- ciple upon which a court of equity acts in arrangements of abate- ment; in conformity with which, if the testator's freehold estate be subject to debts, a specific devisee of it will be obliged to contri- bute upon a deficiency of the general personal assets with the spe- cific legatee of a chattel. Accordingly, if a freehold estate be devised. to A. and a lease- hold to B. and the testator die indebted by bond to an amount more than sufficient to exhaust the personal fund, B. may compel A. to abate or contribute with him to the satisfaction of the debts. The reason is, that both estates are liable to those demands, and it was equally the testator's intention that B. should have the leasehold, as that A. should have the freehold estate. This was decided in the case of Long v. Short.(d) But the determination would be dif- ferent if the debts were only by simple contract, and were not charged upon the real fund ; for then the leasehold, as the sole re- maining estate liable to those duties, must be wholly applied to- wards their liquidation. From the preceding observations, the following remarks occur respecting estates pour autre vie of which a testator was seised at the time of his will, and of his death. If an estate limited to a tes- tator and his heirs during the life of A. be devised by him to B. and a leasehold estate to C. and the general personal assets are in- 9* f P 203 s - c - ** see SECT. II.] of Specific Legacies. 255 sufficient to pay all the debts by specialty, B. and C. must contri- bute in proportion to their legacies in supplying the deficiency; be- cause both estates are liable to those debts, the freehold pour autre vie being placed in the same situation in that respect under the statute of fraudulent devises(e) as an estate of inheritance. But as estates pour autre vie so limited to the heirs are not liable to simple contract debts, C. could not call upon B. to abate in respect of them. If, however,- the grant of the estate pour autre vie had been limited to the testator, his executors, &c. since that species of inte- rest is made personal estate by the statute of frauds,(/) if speci- fically devised as before, B. would be liable to abate with C. in dis- charge of debts by simple contract, as well as those by specialty. (g) It has been nqticed that, in general, specific legatees are not compellable to abate in favour of general legatees; but to this rule, as to most others, there is an exception. For if the whole of a tes- tator's personal property be disposed of specifically, and he be- queath general legacies, the latter must be paid out of the former. Suppose, then, a person possessing personal estate at B. and C. only, to bequeath it to D. and E. and then to give a legacy to jP. The personal estate at B. and C. will be liable to the payment of the legacy in proportion to their several amounts, because there never were any other funds out of which it could have been satis- fied, and the usual presumption of preference intended by testators in favour of specific legatees is repelled in this instance. (h) 4. It is proper in conclusion, to refer to those legacies which are in one sense, specific, and in another, general. They have been de- scribed in a preceding chapter, as bequests of money, with reference to a particular fund for their payment, and not simply a gift of the specific fund itself.(t) Those legatees have such a lien upon the specific fund referred to, that they will not be obliged to abate with general legatees ;(/c) and in this, as in the preceding cases, the testa- tor's intention is the principle; for it is inferred, that he, in referring to specific parts of his estate for payment of particular legacies, in- tended those legacies a preference to others which he had not so secured. Thus, if .#. bequeathed to B. 500Z. out of a debt of 1000J. or out of his 2000Z. three per cent, consols; B. will not be obliged to abate with the general legatees upon a deficiency of general assets to pay all debts and legacies. This was so settled in the cases below re- ferred to(J), and before stated. But if the fund out of which the lega- cy is payable, happen, from any cause, to be insufficient fully to dis- charge it, and the personal estate fall short to answer the deficiency, and wholly to pay the other legacies, B. is so far a general legatee, () The latter occurred in the cases pro- duced in the fourth section of the fourth chapter, (q) where the tes- tator having no property in the specific fund described by him, yet possessed property in another, as when he bequeathed so much three per cent reduced annuities, having no stock 'of that description, but possessing stock in three per cent consols. In such and the like cases, it being unavoidable to resort to the testator's estate to find the property described, the .slight difference in the description be- tween the fund and the state in which it is actually found, raises a presumption, that such variance was founded in mistake, and that the legatee was intended to have the stock, although it did not lite- rally answer the terms of the bequest.- Upon that principle it is, and not upon any extrinsic evidence directly brought to explain or correct the will, upon the alleged intention of the testator, that the legacy is supported. The next class of cases in which parol evidence has been admit- ted, is founded in the relation between parent and child. A court of equity, without any intention expressed by the father, raises a presumption, upon the natural obligation he is under, to provide for his own immediate '-offspring, that a gift either by deed or will, is intended by him not merely as a bounty, but a portion, a payment of the debt, which by nature he contracted,, to his child, as before noticed ;(r) so that if the provision be by will, and the father after- wards advance the child upon marriage, the .latter will adeem the former, except a different intention be proved; for this, like the case of the executor > being a presumption, may be destroyed by the application of verbal testimony, or it may be confirmed by the same species of evidence. Thus in Biggleston v. Grubb,(s) parol evidence was admitted to show that a father gave 500i. upon his daughter's marriage, to her husband, in full discharge of a sum of 5007. which he had left her by his will. So in Rosewell v. Bennet,(t} Lord Hardwicke, allowed parol de- clarations of a father, in proof that 200Z. advanced by him in placing his son a clerk in the Navy Office, were intended by the father in satisfaction of a legacy of 300Z. given by his will to the son. The like doctrine is established by the cases of Hoskins v. Hos- kins,(u} Robinson v. Ihitley,(x) and Thellusson v. Woodford.(y') All the cases which have been noticed are upon presumptions, arising either from the act of the testator in writing, or in conse- quence of latent ambiguities, or upon presumptions founded upon the relation of the parties ; instances in which there is no doubt that parol evidence is admissible. To these may be added another in- stance, more immediately falling within the subject of the present section, viz. Where a stranger or putative father gives a legacy for a particu- lar purpose, expressed in his will, and afterwards advances money ( /O See 1 P. Will. 421--425. 2 Ves. sen. 216. Ambl. 374. 1 Ves. jun. 266, 3 Ves. 148. 6 Ves. 42. 12 Ves. 279. (y) Ante, p. 219. etseq. (r) Ante, p. 255. () 2 Atk. 48. (0 3 Atk. 77. (u) Pre. Ch. 263. (;c) 9 Ves. 577. (V) 4 Madd. 420. SECT. II.] and their Jldemption. 273 for the same purpose. In such a case, a, presumption is raised upon the unity of purpose, that the execution of it by an advancement in his lifetime, was meant in substitution of his testamentary provision made, as expressed, to promote the same end ; and consequently that the advancement is an ademption of the legacy, as before no- ticed, (z) But since this doctrine is founded upon a presumption, it follows, that such presumption may be repelled by parol testi- mony of a contrary intention, or the inference may be strengthened by confirmatory evidence. (a) There can be no question about the subsequent gift being an ademption, when the motive for giving the legacy and making the advancement appears in the will and by deed; but to what extent parol testimony is admissible to show that a legacy was intended as a portion, or a gift intended a substitute for a legacy, or that a per- son bad assumed the relation of a parent, remains to be considered. It is a first .principle of law that a will cannot be explained by any thing but itself.(6) Hence it is incapable of being altered, de- tracted from, or added to, by parol; nor can oral testimony be ad- mitted to prove upon what terms a legacy was given. (c) Applying this doctrine to the points now under consideration, it seems, to follow, that since a legacy by a stranger judicially imports mere bounty, the nature of the bequest cannot be changed(d) by its con- version into a portion, through the medium of parol evidence di- rectly and in the first place applied to the motive for making the bequest. The Statute of Frauds appears to forbid any such appli- cation.^) And unlessj as has been 1 shown, the gift by will were expressed I to be a portion, or a legacy for a particular purpose, and the advancement was made for the same purpose, there would be no presumption of an intent .to adeem the former by the. latter, as then there would exist no presumption to repel or to confirm, it is conceived that there could be no pretence or principle for admitting parol evidence to alter the legal import of 'the expressions in the will, for the purpose of defeating the legacy by a presumed inten- tion-to adeem it, arid that presumption raised by oral testimony directly applied to the instrument, and in opposition to its legal construction and effect. So powerfully was Sir W. Grant, M. R. impressed with the impropriety* of admitting parol evidence in. those cases, as even to doubt in Hartopp v. Hartopp,(f) (a case of parent . and child), whether in strictness it were competent in the first in- stance to give evidence of declarations that the father intended to substitute the portion advanced by him in the place of that he had bequeathed, a doubt in which his Honour had been preceded by Lord Rosslyn in Freemantle v. Banke's.(g) But when it is consi- dered that in instances of parent and child,, a presumption is raised upon that relation which springs ' immediately upon the advance- ment of the portion, the legacy being also a pprtion whether so ex- pressed or not;(ft) it seems to be consistent with the principles (z) See ante, p. 265. and 2 Bro. C. C. 166-521. (a) 2 Bro. C. C. 166. and Trimmer v. Bayne, 7 Ves. 508, stated infra, p. 281. (A) See ante, p. 222, (c) By Lord Eldon, 16 Ves. 486. and see Brown v. Seltvin, Forrest, 240. (d) Vide chap. IV. sec; 4, passim, and particularly p. 222. (e) 29 Car. II. sect. 22. ( f) 17 Ves. 192. (,) 5 Ves. 79-85. (A) Supra, p. 257. 274 General Legacies > [Cn. VI. which admit parol evidence, to confirm as well as to rebut pre- sumptions, to authorize its admission directly, and in the first in- stance in regard to the father's intention to adeem the testamentary portion by an immediate advancement. For the effect of the per- mission is not to raise but to confirm a presumption. The case, however, is widely different from that of a stranger and his legatee when the bequest is general, and parol evidence of intention is offered either to convert the legacy into a portion, or to prove that the testator intended by a gift to adeem a general bequest he had made. In neither case is there any presumption to confirm or repel, and the oral testimony is, in the first case, brought directly to ex- plain and alter the will, and in the second to revoke a legacy by parol. The same observations equally apply in objection to the admis- sion of parol evidence, in the first instance, to prove that a putative father intended a portion by a legacy he had given generally to his natural child ; or that he or any other person intended, by giving a legacy, to assume the relation of legitimate parent to the legatee; for were parol evidence admissible in such cases, it would have the effect of explaining and altering the effect of a written wilL(i) The grounds upon which the several conclusions before men- tioned are founded, have been minutely detailed, and are sub- mitted to the consideration of the reader. There are, however, cases and dicta in opposition, which will be our next subject. In the case of Chapman v. Salt,("k) the Master of the Rolls ad- mitted evidence to show that a note for 501. given by Jl. to B. was intended by Jl. in substitution of an e.qual sum .bequeathed by him to B. The reason assigned for the reception of the evidenpe was, that the question was testamentary, aqd the evidence as a necessary consequence admissible. But what his Honour- intended by the term " testamentary," does not appear. .T.hiis, however, is certain, that there are many testamentary questions in which parol evidence cannot be received. Similar- to the last, is .the case of Shudal v. Jekyll,(l] in which Lord Hardwicke admitted oral testimony of the testator's intention, that what he had. advanced was not in substitution of what he had given by will j and his Lordship observed, ^that parol declarations' had been constantly admitted in those instances. But the cases have been sought for in vain ; and it is to lae remarked, that the present, being a case of a stranger, the advancement was not an :ademption of the bequeSt;(m) so that such evidence, even though admissible, was not necessary to entitle the legatee to Both gifts. It seems difficult to discover the principle upon which the evidence was admitted in the last case, consistently with the grounds upon which we have seen that it has bqen received in other instances; for it is a settled rule of law, that a person is entitled to as many gifts from another, as the donor chooses to bestow; consequently, an advancement and a general legacy are accumulative, and there arises no presumption, the one way or the other, to be confirmed or repelled by parol testimony. In such a case, a court of equity (z) Sed Fide, 18 Ves. 154; but see the remaining observations upon this subject. (*) 2 Vern. 646. (/) 2 Atk. 516. (m} Ante, p. 265. SECT. II.] and their Jldemption. 275 would surely be proceeding to an extreme length, if it were to per- mit an executor to show by parol evidence, that a testator intended to adeem his legacy by an advancement; and, acting upon such tes- timony, to revoke a written bequest by parol declarations. If, then, that evidence would be rejected (and it is presumed that it would) when 'offered by the executor, it is conceived that it would be equally inadmissible, if produced by the legatee, to prove that the testator intended him to take the legacy as well as the sub- sequent gift. Lord Thurlow seems to have followed the steps of Lord Hardwicke in Powel v. Cleaver,(n) and Grave v. Lord Salisbury ;(o) in which latter case Lord Thurlow directed a Master to inquire into the cir- cumstances of the advancement; a reference that his Lordship would not have made, unless he had bden of opinion that the legacy might be adeemed by parol declarations of the testator that he so intended. The above are the principal cases in favour of the admission of parol evidence to prove the ademption qf a general legacy from a stranger by a subsequent gift or advancement ; cases which appear to have induced Lord Eldon to express a dubious opinion in ex parte Dubost,(p) that a legacy by a stranger (though a bounty) might be proved to mean a. portion by evidence applying directly to the gift proposed by the -will. And towards the conclusion of the case, his Lordship, referring to Powel v. Cleaver, considered that case an au- thority for admitting evidence of the testator's intention, when he made his will, to give a portion as parent (although a legacy upon the face of the wilt,) or as standing in loco parentis, and to satisfy the bequest in" the whole or in part by the subsequent advance. It cannot be denied that the cases decided by Lord Hardwicke arid Lord Thurlow, and the opinion of so profound a lawyer as Lord Eldon, are of great weight; but on the other hand, we should ad- vert to the grounds upon which those authorities rest, and consider the impolicy ef admitting parol evidence beyond the limits adhered to in the several cases before stated; namely, that of rebutting equi- ties and resulting trusts, and of confirming or repelling existing pre- sumptions, and not of raising such presumptions. When to these considerations' we add the doubts of Lord Rosslyn and Sir William Grant, before noticed, (q) as to the admissibility of parol .evidence in the first instance, to show a testator's meaning to substitute one provision for another ; and the declaration of Lord Eldon, in Herbert v. Reid,(r] that parol evidence could not be received to alter, de- tract from, .or add to a written 'will, nor to prove .upon what terms a legacy was given, it may, at least, be asserted that the .points we have been discussing are. not finally settled. Probably it will not be deemed assuming too much to observe, that notwithstanding the contrary cases, a court of equity will not now admit parol evidence to be directly applied to a written .will, to prove that a legacy by a stranger was intended as a portion ; nor that a legacy not expressed to be given for any particular, purpose, was intended to be revoked by a subsequent verbal gift ; nor that a fegacy, given by a putative (n) 2 Bro. C. C. 517. ' (o) 1 Bro. C. C. 425. f/0 18 Ves. 153. (?) Sufira, p. 227. (r) 16 Ves. 4'86. 276 General Legacies, [Cn. VI. father, was meant as a portion; nor that he, or another person, at the time he gave the legacy, intended to place himself in loco parentis. Taking .it for granted that none of the above circumstances can be admitted in proof when the parol evidence is tendered in the first instance, and directly to explain what, a testator meant when he made his will, either as to assumed relationship to the legatee, or in re- gard to the nature of the bequest; yet since such specres of testi- mony is permitted to ascertain who was the author of the gift, when it does not appear upon the face of the transaction, and also to as- certain whatever is wanting to show the consideration, and./rom whom it moved, provided the evidence does not contradict the in- strument,^) it seems to follow, that the assumption by a person of the relation of parent to the legatee may be proved circmtously; which fact, when established, will be attended with all the same consequences, as to double portions and ademptions, which would ensue if the legacy had been given and the advancement made by the father of the donee andylegatee. It seems, however, that those results must be obtained frc>m the establishment by. parol of facts dehors the will from which the relation may be presumed; as that the father of the legatee was dead when the will was made; that the legatee resided with," was supported and educated by, the testator, and that he treated the legatee as his own child :(t) from such evi- dence it is conceived a presumption would arise that the testator had assumed the office and duty of a parent ; and this presumption, attaching itself to the legacy and to the subsequent advancement, would have the effect of converting th^e legacy into a portion, and thus subject it to the influence of the rule respecting ademption, as in the case of parent and child. But as this consequence follows from presumption merely, it may be defeated by evidence of inten- tion, in opposition to such presumption ; or, on the other hand, it may be confirmed 'by corresponding 'testimony. By this method of procedure no evidence of intention is directly adduced in explana- tion of, or in'contradiction to, the' written will; but .the object of the testator is attained without infringing upon any rule of law, for the assumed relation is. presumed upon the evidence of facts, proof of which, as we have seen, is not to be refused. The above reasoning, it will be observed, does ne/t apply, when the testator is a stranger, not standing in loco parentis, and it is pro- posed to offer parol evidence of his declared intention, at the time of the advancement,, to substitute the gift for the legacy ; in that case there ;s no/collaferal fact to be established inconsistent with the legal right of the legatee to take both the gift and the legacy. There is no presumption from the advancement of an intent to adeem the bequest because the law .gives both to the legatee ;(w) so that the evidence, if produced in that case,, would tend directly to repeal a written bequest ; for which it is conceived to be inadmissi- ble. And, .as we have seen that oral testimony is- tiot allowed to prove a consideration inconsistent with an instrument in writing, it should seemlhat parol evidence of the testator's intention, to substi- tute the gift for the legacy," and thus to defeat the latter, is likewise inadmissible. () 17 Ves. 192. (t") These conclusions are drawn from the case supposed by Lord Hardivicke in Shudalv. -Jekyll, 2 Atk. 518. (u) Supra, p. 265, SECT. II.] and their Jldemption. 277 The last observations, however, must be considered as confined to instances where the legacy is general, and the testator does not stand in loco par entis ; for we have seen that when a legacy is given by a stranger expressed to be for a particular purpose, and he afterwards advances money for the same purpose, a presumption arises that he intended the gift in substitution of the bequest.(a:) When, there- fore, the will declares that the consideration for the legacy is that it may answer a particular object, a court of equity cannot refuse to receive parol testimony of that object having been completed by the testator during his life. The presumption is, in this case, inchoate from the expressions in the will, and its completion can be only as- certained by inquiry, or the admission of parol evidence of the pur- pose for which the subsequent advancement was made. The proof does not, as in the other instance, militate against the instrument, or its legal import. And if the advancement appear to have been made for the same purpose as that expressed in the will, the legacy is ne- cessarily adeemed upon the presumption arising from the unity of object and its performance by the testator himself; but since the ademption is founded upon presumption, it follows, that such pre- sumption may be repelled or confirmed by oral testimony, as before observed. (?/) Under this head may be classed the case of Debeze v. Mann,(z) in which a legacy of 1325Z. was given by the testator to his putative daughter, to fit her out for India, or to dispose of her in marriage. He afterwards, upon her marriage, advanced for her 1000Z. as a por- tion by giving a bond to her intended husband ; and he subsequently to the marriage, gave her 600Z. to buy furniture ; the total advance- ment being 16001. At the first hearing of the cause, Lord Thurlow admitted evidence of a parol declaration by the testator, to the hus- band's father before the marriage, that there would be more at his death than lOOOl. for his putative daughter, upon which evidence his Lordship decided that the presumption of the legacy having been adeemed by the advance of the 1000Z. was repelled; and that there was neither evidence nor presumption to show that the 600Z. was an execution of the testamentary gift. It is proper to remark that Lord Thurlow said upon rehearing the cause, that he did not rest his judg- ment on the witness referring to an intention in the testator to do more at his death for his putative daughter. But if Mr. Brown's re- port of the case be correct, it is clear that his Lordship's decree was founded upon the fact of the testator's declaration, that his advance- ment was not all he intended to do for his daughter. And " con- necting the future advancement of 6001. with the testator's death, by the expression used about his life, as an advance at that time, the principleof the decision appears to be, that the advancement of 10001. and 600/. would not, within the meaning of the conversation between the two fathers, adeem what was given by the will. "(a) Having in the last few pages attempted to ascertain in what in- stances parol evidence is admissible to prove an intention to adeem portions and legacies by subsequent advancements ; it is proposed to consider in the next place (JT) Ante, p. 265. (y) Sufira, p. 339. (z) 2 Bro. C. C. 165. (a) ByLord.fi/rfort, 7Ves. 517. VOL. i. N n 278 General Legacies, [Cn. VI. 5. What testimony will and will not be sufficient to prove the tes tator's intention so as to effect an ademption, when parol evidence can be received on those subjects. It appears from the view which has been taken of the admissibility of parol evidence, that it is only allowable to confirm or repel pre- sumptions. In order to rebut the presumption of ademption from a subsequent advancement, the testimony must be clear and relevant, not merely presumptive, but a demonstration, from the language and conduct of the author of both provisions, that he considered the gift by will as a subsisting benefit. (6) And it is required to be equally so whether the legacy be a portion, or be given by a stranger for a particular purpose, the advancement for the same purpose perfect- ing, as we have seen, the presumption of an intent to adeem the be- quest. We shall, First, consider what evidence will be sufficient to repel the pre- sumption of an ademption from a subsequent advancement. Since the advancement must, as we have seen, be made for the same purpose as the legacy was given, in order to found a presump- tion of an intent that the former should go in substitution of the lat- ter, it follows, that if the bequest be of a portion, and the parol evi- dence show that the advance Was expressed to be given for a partial or a different purpose ; or if the bequest were of a legacy for a par- ticular object, and the evidence proved that the subsequent gift was made for another, the testamentary portion or legacy would in nei- ther instance be adeemed by the posterior advancement. In Robinson v. Whitley,(c) Jl. the father bequeathed to his daugh- ter, B. WOOL to be paid 'upon her marriage. She married during .#.'* life in December 1801, the will being made in the preceding November. Some months after the marriage A. paid to B.'s hus- band 470Z. part of 500Z. which, as appeared from the evidence of C. .#.'s widow, he declared to her in a private conversation before such marriage, that he would give B, so soon as she should be united to her present husband, as they would want furniture. C. further de- posed as to her belief that A. meant the 5001. in addition to what he might leave B. by his will ; and that she never heard him declare an intention that such sum should be taken in lieu, or in part satisfaction of the legacy. Sir W. Grant, M. R. decided that A. the father hav- ing appropriated the 500Z. to a particular purpose, which appeared to be the sole motive for the advance, but which he had not expressed in giving the testamentary portion, the advance was to be consider- ed a. new gift, the occasion of which repelled the presumption that it was meant in lieu or in part payment of the legacy. Indeed if the presumption had prevailed, it should seem, from what has been no- ticed in a preceding page,(d) that the whole portion would have been adeemed, since the case supplied no evidence of an intent to restrict that general presumption to a partial satisfaction. If the evidence prove that a testator, when he made an advance- ment, referred generally to his will, so as to impress his auditors with ideas that the donee should be further benefitted by his death ; such reference will repel the presumption of an intention to adeem the portion or legacy : so that if the testator declared, that " the donee was the object of his bounty, and therefore greater expectations might (*) 1 Ves. jun. 108. 7 Ves. 522. (c) 9 Ves, 577. (rf) Sujtra, p. 259. SECT. II.] and their Jldemption. 279 be formed upon that circumstance," or if he said, " she is in my will,"(e) or to any such effect; the declaration would preserve the testamentary gift to the legatee, (/) The consequence must necessarily be the same when a testator is more explicit upon making an advancement, and alludes to an inr tention to leave something. to the donee, at his death, but declines to incur any obligation to do so. Thus in Shudal v. Jekyll,(g] the testator declared before the mar- riage of his niece and legatee, and when he gave security for the advancement he made upon that occasion, " that he would leave something to her by his will ; but that he would not be considered as under any obligation to do so." This declaration was held by Lord Hardwicke to be sufficient to repel the presumption of an in- tent to adeem the bequest by the advancement, and to entitle the niece to the legacy. So in Debeze v. Mann, before stated, (h) Lord Thurlow consider- ed the declaration of the testator to the father of his putative daugh- ter's intended husband, " that there would be more for her at his death than 1000Z." to be sufficient evidence to rebut the presump- tion, that the testator meant by an advancement on his daughter's marriage, to adeem a sum of money which he had previously left her by his will. And in Ellison v. Cookson^i) Lord Thurlow was of opinion, that if the evidence had gone no farther than the conversation between the testator and the person employed by the father of the intended husband of his daughter, which was, that the testator agreed to give her 5000/. as a portion, and declared, " that she would have some- thing considerably more at his death, equal or nearly equal to what he intended as her portion," such declaration would have entitled the daughter to the provisions made for her by the will, notwith- standing the portion advanced upon her marriage ; one of which provisions was a portion of 5000Z. But in that case the daughter had expectancies from her mother founded upon the will ; and a letter having been written by the testator, explanatory of the con- versation which had passed between himself and the person before alluded to, the Court was of opinion, that the terms of the letter might be applied to and satisfied by reference to the daughter's ex- pectancies from her mother, without extending to the testamentary portion of 5000Z. and -that, therefore, the evidence was not suffi- ciently clear to show that the testator intended such portion to sub- sist, notwithstanding the one he had given upon his daughter's mar- riage, so as to prevent the application of the presumption, that the advancement was in ademption of the legacy. This introduces us to the consideration, Secondly, of the evidence deemed insufficient to repel the pre- sumption of ademption by a subsequent advancement. It has been observed that parol evidence, in order to have the ef- fect of rebutting a presumption, is required to be satisfactory; that is, demonstrative of the testator's intention, from his language and ()^-is, 3. Whether there be any valuable consideration for the tes- tamentary gift. ' When a general legacy is given in consideration of a debt owing to the legatee, or of his relinquishing any right or interest, since the bequest is not made as a bounty', like other general bequests, but as purchase money for the- collateral right or interest, it will be entitled to a preference of payment to the other general legacies, which are merely voluntary. Suppose, then, a sum of money to be bequeathed to B. in the event of his conveying a particular estate to C.' f B. has an option of acceding to the terms, and if he do so, the transaction amounts to a contract for a valuable consideration, and 'the legatee will not be under the necessity of abating proportionally with other general le- gatees, (q) The law is the same when a general bequest is made by the testator to his wife in lieu of dower; for her election to accept the legacy places her in the situation of a purchaser of what is given her by the will. The case of Burridge v. Brttdyl(r] was. decided upon, the above principle. (s) There, amongst other legacies, the husband bequeath- ed 3400JL to his executors to purchase exchequer bills for ninety- nine years, to be enjoyed by his wife for kfe, " she releasing her dower." Lord Cowper said, that the 3400L should be preferred to the other legacies, which must be lost if the assets were insufficient to pay them. So in Blower v. Morret,(f) the husband made some testamentary gifts to his wife and other persons, and after giving a general legacy of 500/. to 'her, declared that the bequests made in her favour were in lieu and satisfaction of all dower and thirds, to which she might be entitled at law out of his real and personal estates. Lord Hard- wicke declared, that the wife's abandonment of her legal rights would entitle her to payment of the whole of the benefits which were given to her under the will, in preference to other general legatees. It must be remarked, that as it is the- surrender of existing rights or claims, which gives the preference to the legatee, it is necessary that those rights or claims should'be subsisting at the testator's death; for example, suppose a wife, were barred of dower and thirds by a jointure. Lord Hardwicke said, he would not consider the wife to be a purchaser of the testamentary provisions, but that the words re- quiring a release of such rights wer-e only of course, and 'amounted to nothing.(w) If,-however, the wife be entitled to dower and thirds, and a legacy be given to her in satisfaction of them, it will' not be excluded from a preference in payment to other legacies, if the amount of the be- quest happen to exceed the value of those rights; for the testator is the only and best judge of the price at which he is desirous to be- come the purchaser of them. Accordingly inDavinhill v. Fletcher, '(x)JL. bequeathed an annuity (/O Ante, p. 286. (?) 2 Ves. sen. 422. (r) 1 P. Will. 127. (s) 2 Ves. sen. 422. m 2 Ves. sen. 420. (u) Ibid. 422, (.r) Ambl, 244. and see 2 Ves. sen. 422. Heath v. Dendy, 1 Russ. 543. 298 General Legacies,' [Cn. VII. to his wife for life, to be paid out of a freehold estate; also the use of his house, with the furniture and linen. He further gave to her 5001., which, with the annuity, he declared to be " in full of what she should or might claim for dovyer and thirds out of his real or perso- nal estate." There was a deficiency of assets to pay debts and lega- cies, and the question was, -whether the 500Z. should abate with the other legacies. For the abatement two arguments were used': 1st, that the words, m full of dower, &c. were not inserted to give the wife an advantage, but merely to signify that she should not have both dower and the legacies, and tha't since the 500JL would abate without those expressions, so ought that sum to do with them : 2dly, that the legacies exceeded the wife's dower, and therefore the 500L ought to abate. To these arguments Sir. Thomas Clarke, M. R. an- swered, that although there was weight in the. observations, which would deserve consideration, .if the point were-?*S integris; yet, as the law had been settled to the contrary by the two- cases of Bur- ridge v. Bradyl, and ftlower v. Moi'ret,(y] his Honour declared, that the wife was entitled to the -legacy without abatement. We now come to the last subject proposed for consideration in this section, namely, 4. The abatement of general legacies .of stock. In cases where stock is bequeathed as a general legacy, and the legatee is called upon to abate with other general legatees, the abate- ment will be regufated by the value of stock at the end of one year next after the testator's death. . An instance of this occurred in Blackshaw v.. Rogers(z] in which a testator ga\;e 2001. consols to B. to keep a monument in repair; and, by a codicil, he gave the in- terest of 300Z. to C. for life. The assets being deficient, Lord Thur- low decreed that B. and C. should abate in proportion, and he directed the master to inquire into the value of the stock at the end of a year after the death of the testator. Having in. the preceding section discussed the rule of abatement as applicable to general legatees, when a deficiency of assets occurs; the subject which next presents itself for consideration is,^ SECT. II. The rights of general legatees to follow specific assets in the possession of a stranger; when they have been pledged or disposed of by the executor, and the produce ivasted. It is a general rule of law and of equity, that an executor may dispose of his testator's assets ; over which he has an absolute power and that they cannot be followed by creditors, much less by lega- tees, into the hands of the alienee. The principle is necessity, arising from the office to which the executor is appointed, i. e. to perform the will in paying debts, &c. duties which he could not carry into execution, if persons dealing with him in the disposition of the estate were not protected from an after reckoning at the instance of cre- ditors and legatees.(a) Hence it follows, that if the act of the ex- ecutor be consistent with his character and duty as such, it cannot '. C. C. 349. ibid 630. SECT. II.] to follow the Assets. 299 be impeached ; for when he sells any of the assets, the law presumes the disposition to have been made to answer the purposes, for which he was invested with the power of sale ; and, in so doing, the execu- tor performs that act which is necessary to llis authority, and there- fore lawful, just, and right. . Such is the general rule of law and equity upon this subject. But- neither jurisdiction will permit the rule to .be abused, so as to protect a disposition founded in fraud, or a transaction amounting to a breach of trust concerted between the executor and his vendee. Yet the latter is not obliged to ascer- tain whether in the particular instance the executor is discreetly ex- ercising his power. It is sufficient, if the purchaser be not privy to a breach of trust, nor engage in a transaction with the executor which is in its nature incompatible with a legitimate administration of the testator's estate. In order to exemply the above remarks, it is proposed to consider 1. Some of. the transactions of an executor which have been supported under his general power to dispose of the testator's per- sonal- estate. Since an executor is legally authorized to dispose of the assets, the person dealing with him for their purchase, does so upon the credit of that authority, so that if the purchaser .have merely notice of the will, or of its contents,. or that he is dealing with an executor, none of those circumstances alone will enable creditors or legatees to defeat the transaction. The personal fund in the possession of the executor being liable to debts, the purchaser has a right to as- sume, that the sale made .by the executor is necessary and proper. He is not obliged to inquire and inform himself whether all the debts have been paid ;' and although that may have been the case, yet, if it were unknown to the purchaser, the general power and dominion of the executor over the assets will protect the sale and purchase ; so that whether the, subject disposed of, be part of the general estate, or chattels specifically bequeathed, neither the gene- ral nor specific legatees can deprive the purchaser of the benefit of his contract. Thus in Humble v. Bill,(b) the first material case upon the subjett, the testator, having a term of twenty-one years in a printing office, directed 2000Z. to be laised out 'of the profits for his daughter* and her children. The executor mortgaged the term to J?.y who assigned it to C. And the Court of Chancery determined upon the general power of an executor to dispose-of the assets, that C. was entitled to the benefit of the mortgage. Although this decree was reversed by the House of Lords,(e) the propriety of such reversal has been dissented from by succeeding Judges ; viz. Sir Joseph Jekyll in Ewer v. Corbet,(d) and by. Lord Mvanley in Jliidrew'v. Wrigley,(e] who said, he should hardly have assented to the reversal of the decree, the cause of which he ascribed to the particular circumstances of the case, and not as having any allusion to the usual instance of an executor mortgaging the property of his testator, which might or might not be for the purposes of the wilk. His Honour also made a farther and a very material observation : that when the decree was 6) 2Vem. 444. 1 Eq. Ca. Abr. 358. pi. 4. 5. C. c) . . . . . . . . (c) 3 Bro. Parl. Ca. 5. 8vo. ed. (rf) 2 P. Will. 149. 0) 4 Bro. C. C. 13?.' 300 Rights of Legatees, [Cn. VII. set aside, there was no lawyer in the House of Lords unless perhaps Lord Sonn'i'ti. Since th;iT case, however, the power of an executor, \\ ht'ii there are debts, to dispose of the assets whether specifically Influent hrd <>r not, so as to impart a good. title to a purchaser has been established by a variety of cases as will appear in the sequel. Accordingly in. the case of Ewer v. Corbet,(f] the specific de- visee of a term for years endeavoured to follow it into the hands of a purchaser from the executor, but Sir Joseph Jekytt dismissed the bill, upon the principle before stated. The last case was immediately followed by that of Burting v. Stonard,(g) in which the testator bequeathed one- third part of his personal estate (some of which consisted of terms for years) to such of his children as should be living at his wife's death, and appointed her executrix, naming B. overseer of his will, with a small legacy for his cure and trouble ; The wife sold the leasehold to B.. and the transaction was established by the decree of Sir Joseph Jekyll, who observed, that the case was not so strong as- the last, since there was nothing specific nor any particular lease devised to the children. The cases which have rjeen cited are those of sales only. But the executor's power of absolute disposition necessarily includes that of mortgaging or pledging the testator's estate ; a mode of dealing with the assets which (although according to some dicta, suspicious,) when properly adopted, may be very beneficial to lega- tees, by preserving the property entire, Avhen the demands upon it are only of small amount. The act, therefore, of pledging or mort- gaging the estate is consistent with a due administration of the as- sets; and there is no reason, upon any implication of fraud, to de- prive" the executor of that power and to defeat the title of a bonft fide pledgee "or mortgagee. In. Scott v. Tykr,(h) Lord Thurlow express- ed himself to the following effect.: It is of great consequence that no rules should be laid down here, which may impede executors in their administration or render their disposition of the testator's ef- fects unsafe or uncertain to a purchaser, his title is complete by sale and deliver^-, what becomes of the price is of no concern to him. This observation applies equally to mortgages or pledges, and even to the present instance, where assignable bonds were merely pledg- ed without assignment. Hence> it appears,- that if the title of the pledgee or mortgagee be purely equitable, a court of equity will en- force his security notwithstanding the executor may have misapplied the consideration -money. (i) The power of an executor to pledge, or mortgage his testator's estate has never been seriously doubted, and even to pay .his own .debts, if the intention be unknown to the alienee. (k) The questions which have arisen' and been decided were, whether the transactions as between the executor and the pledgee or mortgagee- were bond fide or not. Some judges have expressed opinions, that the power of an exe- cutor to dispose of the assets may be restricted, so as to make it necessary for a purchaser, mortgagee, or pledgee, to see thatt he money is properly applied; as, when the executor does not take the C/") 2 P. Will. 148. (g-) Ibid. ISO. (A) 2 Dick. 725. (i) See 17 Ves. 167. (*) 2 Ves. sen. 268. SECT. II.] to follow the Assets. 301 personal estate merely as executor, but as a trustee also, by direct bequest, upon particular trusts declared by the testator. Thus in Elliot v. Merriman,(l) according to Barnardistori's Re- port, it is said by the Master of the Rolls, " that personal estate may be clothed with such a particular trust, that it is possible the Court of Chancery in some cases may require a purchaser to see the mo- ney rightly applied ; a declaration approved, as it seems, by Lord Kenyan M. Rl in Bonney v. Ridgard.(m) But such a trust has not yet occurred and received the stamp of judicial authority. It is in- deed difficult to conceive how such a trust could be framed to pro- duce the effect supposed to belong to it ; for whatever be the trust declared of the personal estate, the executor must first take it in that character to pay the testator's debts, and then, as incident to such obligation, he must have the power of disposition over the assets. He may, therefore, sell or pledge them, and the purchaser or mort- gagee in dealing with him is under no necessity of providing that his money shall be applied to the purposes of the will, the administration of the fund belonging ex qffido to the executor. It being settled that the purchaser or mortgagee is not required to see his money appropriated in the discharge of debts, nor to examine whether there be any or not, the possibility of their existence at the period of the transaction (although all of them may have been satisfied without his knowledge) will support his title under the executor. If then the purchaser or mortgagee be not obliged to take care that the money is applied in payment of debts, it would be unreasonable to require him to look further, and to make him responsible for neglect- ing to see the money appropriated according to the trusts of the will, whether they be engrafted upon his office as the executor, or the personal estate be bequeathed to another person upon those trusts ; the legal interest in each case continuing in the executor until all the debts be paid ; and there appears to be no more reason in those cases to permit the cestui que trusts to follow the assets in the hands of the purchaser or mortgagee, when the executor has misapplied the money, than in ordinary cases, in which we have seen that claim to be inadmissible to the general and specific legacies. Lord Hardwicke expressed his opinion to the above effect in Mead v. Orrery,(n) a case in which the testator devised to his exe- cutors, and their heirs, &c. all his residuary real and personal estates in trust to pay debts, with a direction to make equal division of the surplus among his five children. One objection taken to a mortgage made by (he executors was, that they were to be considered trustees, and that the whole of the testator's personal estate was affected by the trusts, which rendered it necessary for a purchaser or mortgagee to see not only that the money was properly applied, but that the transaction was such, as was authorized by the trusts, notwithstand- ing the general power of executors to dispose of the assets in pay- ment of debts in the absence of an express trust, and the safety of a purchaser or mortgagee in taking the property from them with- out attending to their application of his money ; the trust in the present case being (as it was insisted) an exception to the rule. (0 Barnard, Rep. 81. (m) 4 Bro. C. C. 130. 1 Cox. 145. (n) 3 Atk. 235. 239. VOL. i. Q q 302 Rights of Legatees, [Cn. VI'. But Lord Hardwicke was of a different opinion, judiciously observ- ing, that the manner of devising did not alter or restrain the power of executors over the personal estate, and that the substance of- the bequest was only an appointment of executors, with a gift to them of the surplus fund to be divided among the children. (o) The case of Elliot v. Merriman,(p) in which the Master of the Rolls expressed himself as before mentioned in regard to the pos- sibility of creating a trust of personal estate, which might impose upon a purchaser or mortgagee the necessity of attending to the application of the money, contains an opinion hardly to be reconciled with the other pronounced by him in his judgment ; for that was a case where the testator devised his personal estate, together with his real, to the executor, absolutely charged (equivalent to a trust) with the payment of debts and legacies. And yet that charge or trust did not appear to the Master of the Rolls sufficient to rerfder it necessary for a purchaser of part of the assets, consisting of lease- hold property, to see to the application of the purchase money. His Honour said, " that as to the leaseholds, they are out of the case ; for if a man purchase such an estate from an executor, the trust no longer continues upon the land ; since, if money be wanting, an executor, must sell. To entertain a doubt to the contrary would make it impossible for an executor to raise assets, as no person would venture to buy. The Court (continued his Honour) chooses rather to abide by its general rules, than to let in nice distinctions in order to relieve particular persons, though even in the case of creditors themselves." It may probably be considered, for the reasons before stated, and in reference to the last observation respecting the propriety of ad- hearing to general rules, that it is of no consequence with reference to the power of executors to dispose of the assets, whether they be bequeathed upon trust or not. (9) The principle upon which an executor is allowed at law and in equity so extensive a power over property, which he derives from the testator, is the necessity of enabling him to execute his office and trust, and of preventing the inconvenience of implicating third per- sons in inquiries as to the application of the money produced by conversion of the estate. But that principle will not protect trans- actions between the executor and a stranger, where the latter is in- volved with the executor in the commission of a breach of trust, or in a devastavit. We shall therefore proceed to consider 2. Under what circumstances legatees may or may not defeat a sale or mortgage made by an executor, under his general power to dispose of the assets, when he has misapplied the proceeds. That a legatee, whether general, specific, or residuary, is entitled to follow the assets., appears to be now settled.(r) And it seems, that those cases only will form exceptions to the general power with which executors are invested to dispose of the testator's estate, that are founded in circumstances showing or implying collusion between a purchaser or mortgagee and the executor ; so as to implicate the former in a charge of participating with the latter in an improper (o) See 17 Ves. 167. ( ft) 2 Atk. 42. Barnard. 78, 81. (?) Scott v. Tyler, 2 Dick, 712. 2 Bro. C. C. 431. S. C. (r) Hillv. Simflson, 7 Ves. 152. M'Leodv. Drummond, 17 Ves. 169. SECT. II.] . to follow the Assets. 303 conversion and application of the estate. That the executor may waste the money, is not alone sufficient to invalidate his sale or mortgage of the property. In order to produce that effect, it must be shown, that the purchaser or mortgagee was active, and participated in a breach of trust or devastavit committed by the executor. In short, it is conceived that the purchaser or mortgagee must not concur in any act, which manifests from the transaction itself that it is not a legitimate mode of administering the estate ; it making no difference, whether he be to derive benefit from it or not ; for the nature of the transaction imparts notice to him that the executor is dealing with the assets not in a due course of adminis- tration j a knowledge depriving him of the protection which he would otherwise have under the executor's general power to dis- pose of the assets, and involving him in all the consequences which belong to a breach of trust or a devastavit in the executor, one of which is to entitle the creditors and legatees to follow the assets into his hands. In Scott v. Tyler, (s] Lord Thurlow expressed himself as follows upon the present subject: " that if a person concert with an executor by obtaining the testator's effects at a nominal price, or at a fradulent under-value, or by applying the real value to the purchase of other subjects for his own behoof, or in extinguishing the private debt of the executor, or in any other manner contrary to the duty of the office of executor, such concert will involve the seeming pur- chaser or his pawnee, and make him liable for the full value."' It follows, from what has been said, that a person cannot take as purchaser or mortgagee any of the assets in consideration of a debt owing to him by the executor personally, because the transaction is such as cannot possibly be reconciled with the duty of an executor in disposing of the testator's estate ; and as Lord Alvanley observed in Andrew v. Wrigley,(t] " there cannot be a stronger case of de- vastavit, than in the instance of an executor aliening the property of his testator to pay his own debts," with the privity of the alienee. When s.uch is the consideration of alienation, it seems to be the duty of the alienee previously to ascertain whether all the testator's debts have been paid, and the trusts of the will performed ; and that the executor has a right to make the disposition, as the person entitled to the property ; and if he omit to do so, it is but reasonable that he should be held responsible ta the persons having claims under the testator's will, We shall now examine, whether these remarks are supported by authority. In Crane v. Drake,(u) .the executor was also devisee, and wasted the assets. The defendant, having notice of the plaintiff's demand (a debt owing by the testator,) purchased of the executor a lease- hold estatej part of the assets, for 900/. ; in the payment for which purchase he was allowed 2QO/. due to him from the testator, a debt owing to himself from the executor, to the amount of 5 50Z.; and the remainder of the purchase money, 1501. was paid to the executor. It was determined first at the Rolls, and finally by the Lord Chan- cellor, that the plaintiff was entitled to a satisfaction of his debt out of the leasehold estate purchased by the defendant, upon the princi- (s) 2 Dick. 725. (0 4 Bro. C. C. 137. () 2 Vern. 616. 18 Vin. Abr, 121. in marg. S. C. 304 Rights of Legatees, [Cn. VII. pie, that the defendant was a party, and consenting to and contri- ving a dfvastavit. It appears that the last case was one of extreme fraud, for not only did the alienee take the assets in liquidation of his own debt due from the executor in his individual character, which according to Lords Jllvariley and Thurlow, was sufficient of itself to invalidate the trans- action, as against creditors and legatees ; but having notice of the plaintiff's debt, he and the executor (as appears from Lord Hard- wicke's observations in Nugent v. Gifford) contrived the alienation to defeat a bona fide creditor of the testator, and by that contrivance, became a party to, and active in, the commission of a devastavit. The next case which occurred, was Pagett v. Hoskins,(x) in which a testator, being possessed of 1 8,000 J. gave-6000Z. a piece to his two daughters, and appointed his wife executrix, who consequently be- came entitled to the remaining 6000Z. Upon the widow's second marriage, she stated her first husband's estate at about 18,OOOZ. and retained 6000Z. as her share of it; in consideration of which, her se- cond husband agreed by articles to settle a jointure upon her, the articles reciting the GOOOZ/to be part of the first husband's assets, and as his widow's proportion, but subject to the result of an account which was then unsettled, upon the taking of which, if her share should be found less than that sum, the second husband provided for himself an indemnity. Under those circumstances, and in conse- quence of a reduction of the testator's estate by losses to 60001. Lord Cowper decreed, that the two children were entitled to follow the 6000Z. which had been received by the second husband. And although his Lordship said, that his decree was wholly founded upon the circumstances of the case, yet it is presumed on the authority of the high opinions before stated, that if there had been no such particu- lar circumstances attending the transaction, still, since the considera- tion upon which the 6000Z. came into the hands of the second hus- band, was such as to be inconsistent with the duty and office of an executrix, in administering the assets of her testator, viz. in apply- ing them for the purchase of a benefit to herself, the second husband could not retain them either against the testator's creditors or lega- tees ; but that the nature of the transaction with an executrix, im- posed upon him the obligation to make such inquiries as before men- tioned.^) The next two cases in succession, are in favour of the executor's power of alienation, though made to answer his own private pur- poses, and in breach of his duty as executor ; but their principle is considered to be unstable and unsatisfactory. The first case is Nugent v. Gifford,(z) in which a term for years being vested in trustees for Sir Richard Billings, he bequeathed several specific legacies, and made Mr. Jirundell executor and resi- duary legatee. Two years after the testator's death, Arunddl be- ame indebted to Knight, one of the trustees of the term, and as- signed it to him. The question was, whether the testator's daugh- ters, as creditors of the testator, were entitled to follow the term into the hands of Knight; they insisting, that the assignment being (JT) Pre Ch. 431. GUb. Ea. Rep. ill. 5 . C. and see 1 Atk. 464, (y) Ante, p. 303. (2) 1 Atk. 463. and stated from Reg. Lib. 4 Br6. C. C. 136. SECT. II.] to follow the Assets. 305 in consideration of the executor's own debt, was void as against them. But Lord Hardwicke decided to the contrary, under the impression that the executor's general power of disposition, enabled him to alien the term even for his own debt. That certainly was the sole principle, upon which his Lordship grounded his. decree ; and the circumstance of the executor being also residuary legatee was not noticed, although Lord Jllvanley, in his comments upon the case, (a) attributes great importance to that accident ; observing, that it was not incumbent upon a purchaser from an executor and residuary legatee, to inquire whether the debts were paid ; an ob- servation equally true and apposite, whether the executor be resi- duary legatee or not ; but the principle does not apply in either case where the consideration of purchase is the private debt of the executor. Let us separate the two characters, and examine them apart, to discover, whether the executor, being also residuary lega- tee, can affect the rights of creditors or legatees. It is presumed, tfiat, as mere executor, his disposal of assets to pay or secure his own debt, could not prejudice individuals interested under the tes- tator's will; and as residuary legatee, he could only dispose of what he was entitled to in that character, viz. what remained after all the trusts of the will were performed. It appears then, that the acci- dent of an executor being also residuary legatee, cannot upon prin- ciple impart to him any larger authority over the assets than what he possessed by virtue of his office as executor ;(&) a consideration confirmatory of the supposition, that the case of Nugent v. Gifford was, as appears from the report, determined by Lord Hardwicke upon the principle, that the general power of disposition, which the law gives to executors for the sole reasons before stated, authorizes them, in subversion of those reasons, to sell or pledge the assets for their own individual debts. The second case, in which his Lordship expressed a similar opi- nion is, Mead\. Lord Orrery, (c) There, the executors (one of them named John Mead, being entitled to a share of the residue) assign- ed a mortgage belonging to the testator, as a security in respect of a receivership, to which John the co-executor had been appointed. John having died greatly indebted on account of his receipts of money as receiver, the question was, whether the assignment was binding upon the other residuary legatees *? And Lord Hardwicke determined in the affirmative, upon the same principle, that he -de- cided the case of Nugent v. Gifford ; for although there were other circumstances, yet all .of them being accessories to the general power of executors to dispose of the assets, must stand or fall with it. Notwithstanding it clearly appears from the last two cases, that Lord Hardwicke's decrees were founded upon the general power of executors to sell or pledge the personal estate of their testators, yet, in a subsequent case of Taner v. Iver,(d] his Lordship seems to have been so forcibly struck with the r impropriety of extending that power so far, consistently with the reasons for which it was given, as to en- able executors to dispose of the assets in satisfaction of their own (a) 4 Bro. C. C. 137. . (b) Scott v. Tyler, 2 Dick, 712. (c) 3 Atk. 235. ((/) 2 Ves. sen. 469. 306 Rights of Legatees, [CH, VII. debts, that lie disavowed his decision in Nugent v. Gifford, and as IIKIV In- inferred, his decree in Meadv. Lord Orrery, having been made upon any general principle, but on the particular circum- stances. Hence Lord Hardwicke in Abandoning aground, which, if irnnl)le,-would have supported both decrees, showed at least his doubt, whether the general power of executors over the assets would enable them to dispose of the estate for their own purposes, in a way declaring to the purchaser or mortgagee, that they were not dealing Avith the property in their character of executors. That such a power would be mischievous in the highest degree is obvious. It would enable an executor to dispose of or pledge the estate for any purpose, however inconsistent with that office, in short, he would be authorized to do whatever he pleased with the property of his testa- tor. Common sense revolts at the construction of the executor's power of disposition to such an extent, and we find the sentiments of Lords Thurlow and JLlvanley in unison against it.(e) In M'Leod v. Drummon'd,(f ) Lord Eldon considered the authority of the la%t two cases to have been shaken by Sir Thomas Sewell and Lord Kenyan in Bonney v. Ridgard ;(g) the latter judge observing, m allusion to Mead v. Lord Orrery, that it became him to think seri- ously before he differed from Lord Hardwieke, but he could not sub- scribe to his Lordship's opinion there expressed, and that had the case come before hirrr'for decision, he would have determined it otherwise, an opinion which he proved in detail in Bonney v. Rid- gard, which was as follows : The testator bequeathed to his wife and three daughters all his estates (leaseholds) in equal shares, with a direction to his wife and one Theobald his executors to dispose of them. The testator died in the year 1748, avid his youngest child attained twenty-one in 1764. The widow alone proved the will, and married Ridgard. They join- ed in a mortgage of the land to aMi*s. Mascall, and in 1752 they as- signed to one Barnard the equity of redemption for 350Z. which sum was composed of two debts (in the whole 3447.) owing from Ridgard to Barnard, and of 61. in money, paid'when the assignment was ex- ecuted ; the deed reciting the two debts. Barnard sold the estate, and he and his vendees had been in the possession of it from the year 1752, to, and during the pendency of the suit in 1784. The question was, whether the daughters and their husbands were enti- tled to recover the property,. notwithstanding the assignment to Bar- nard, m 4 Tenn - Re P> 6 25. in notis. (SO 17 Ves, 154. fa Ibid.- 163. SECT. II.] to follow the Assets. 313 tion annexed to that office is inapplicable to such a case. For these reasons, it is presumed that a transaction so circumstanced would not be supported against creditors or legatees under the testator's will ;(i) and more especially if the alienee has notice of a subsisting debt due from the testator. (k) It was observed in the beginning of this section, that the principle upon which the law gave to the executor so absolute a power of dis- position over the personal assets, was necessity, viz. that he might not be impeded in converting the funds into money, and applying them in discharge of the testator's debts. (/) For the same reason, the law exempts a purchaser or mortgagee of the assets from the obligation of seeing his money applied in payment of the debts, or of inquiring whether there be any ; and confines the responsibility, as to the administration, to the executor alone, as the testator him- self had done. But if the debts be paid, and the alienee had notice of the circumstance when he paid his money, and took the assets, it is presumed (although at law the disposition would be effectual^ that, since the executor is only a trustee for the purposes mentioned in the will, a court of equity would require the alienee to see that the consideration he gave for the property was applied to the speci- fic trusts declared in such will, upon the same principle that it ex- pects from a purchaser of a trust estate to see his money appropriated in satisfaction of the particular and defined trusts contained in, or in a schedule to, the instrument in which they are enumerated. (m) I have found no express decision on the subject, nor any thing like authority except an inconclusive opinion in affirmance of the above remarks by Sir Joseph. Jekyll in the case of Ewer v. Corbet,(n) in which he admitted, " that if an executor should sell a term to a per- son who had notice that there were no debts, or that all the debts were paid, such a case might require, a different consideration," there being no such ingredient in that before him. In M'-Leod v. Drummond,(o} Lord Eldon refers to these expressions of the Master of the Rolls, and abstained more carefully than the latter from giving any opinion upon the effect of such notice. 3. When the dealing between executors and their alienee of the assets is such as cannot be supported,, the right of the testator's cre- ditors or legatees to follow them, may be barred in consequence of their omission to enforce it within a reasonable time. Thus in Elliot v. Merriman,(p) the testator's creditors attempted to follow the assets into the hands of the purchasers from the. ex- ecutor, after an undisturbed possession for sixteen. years ; but their bill was dismissed : Lord Hardivicke observing, that length of time was no. favourable circumstance for the creditors, since had they come to the Court recently and prevailed against the purchasers, the latter might have had satisfaction against the vendor, who, in that case, although he had then become a bankrupt, was solvent for some years after the sales. So in Bonney v. Ridgard,(q) a suit by legatees, the sale was made (f) 1 See Cox, 148. 17 Ves. 156. 171. 2 Dick. 725. (k} 2 Vern. 616 and ante, pp.302, 303. 3 Atk. 240. 17 Ves. 161. (0 Ante, p. 298, (m) Barnard. Rep. 81. (n) 2 P. Will. 149. (o) 17 Ves. 162. (/!) 2 Atk. 41. Barnard. Rep. 82. (?) 1 Cox, 145. 148, 149 314 The Refunding [Cn. VII. in the year 1752, and the testator's youngest child, one of the per- sons interested, came of age in 1764; but from 1752 till the com- mencement of the suit, about the year 1780, the vendee claiming under the executor, had been in peaceable possession of the estate ; so that the same number of years elapsed between the accruing of the right and its exertion as in the last case. Lord Kenyan, M. R. dismissed the bill, on account of the negligence of the plaintiff's in not earlier prosecuting their claims. The case which next followed was Andrew v. Wrigley,(r] in which legatees sought to recover a leasehold estate, bequeathed to them, which had been mortgaged, and afterwards sold under a title derived from the administratior with the will annexed. The claim in respect of the mortgagee was abandoned, and it appeared that from the year 1758 to 1779, the first two purchasers had been in pos- session of the property, contrary to the intention of the will, and that in the latter year the estate was again sold by the vendees by public auction, at which sale the plaintiffs, legatees, gave notice of their claims. Lord Mvanley decided two points. First, that after an ac- quiescence for twenty-one years, the legatees could not have reco- vered the estate from the first two purchasers ; and secondly, that, as the last vendee bought the estate from the persons who had no knowledge of those claims, notice of them to him was of no conse- quence, since he was entitled to protect himself under the want of notice in those persons from whom he derived the property for a valuable consideration. (s) The last case upon the present subject is JlPLeod v. Drummond, first decided by Sir William Grant, and finally by Lord Eldon. The case consisted of a variety of circumstances, and it was singular in this respect, that the suit was by two executors (who 'had not pre- viously interfered in the administration) against pledgees of parts of the assets by the other two and sole acting executors, for the private debt of the latter. No persons beneficially interested in the property under the will were before the Court. The testator died in 1786, and the bill was filed in 1804. In 1792 the first pledge of the estate was made, and afterwards several like transactions took place be- tween the same parties up to the year 1804; during the whole of which period, neither the plaintiffs, nor any persons interested in the deposits, made any objections to those dealings with the estate. Under those circumstances, both Sir William Grant and Lord Eldon determined, that the titles of the pledgees could not be shaken; not by the plaintiffs in the character of two unoffending executors, be- cause they were hot beneficially interested, and never interfered in the executorship from 1786 to 1801, nor by any persons interested for themselves or others, since they had slept upon their rights during the sam.e period. (t) SECT. III. Of the refunding of Legacies. In the last section was considered the right of legatees to follow the assets in the possession of strangers under titles derived from the executor by .sales or pledges. It remains to consider the rights of executors, creditors, and unsatisfied legatees, to call back parts of (r) 4 Bro. C. C. 125. () Ibid. 136. (t) 14 Ves. 353. 359. 363. 17 Yes. 171. SECT. III.] of Legacies. 315 the estate, which have been overpaid to one or more of the legatees, by reason of a defect of assets. And 1. As to the right of an executor to oblige a legatee to refund. It is a rule in equity, to presume, when an executor voluntarily pays one or more legacies that he has received sufficient assets to discharge all the rest; and although the fact be otherwise, not to admit evidence to that effect. In such cases, therefore, the execu- tor will be under the necessity to make up the deficiency with his own money, since a court of equity will not (except in the instances after mentioned) permit him to institute proceedings against any of the legatees, so paid, to oblige them to refund. For, it being the executor's own folly to make such payments before the amount of the estate .could be ascertained, or his negligence in not acquainting himself with its amount, when that information might have been ob- tained, (w) neither of those grounds entitles him to the interference of a court of equity to be relieved against such his acts and assents to the legacies. (x) Upon this principle, it is conceived that the above rule is founded, and to which may be ascribed the following decision : In Coppin v. Coppin,(y) A. after giving several considerable le- gacies, appointed his brother the plaintiff, executor and residuary legatee, who stated in his bill, that he had paid the legatees more than the assets would allow, merely upon a misrepresentation of their value, the estate having sustained unexpected losses ; he there- fore insisted that, if by importunity or from kindness to several of the legatees (who were his relatives,) he had paid legacies beyond the assets, such over payments ought to be refunded. But Lord King, Ch. was of a contrary opinion, and said there did not appear to be any fraud or misrepresentation by the legatees to whom the payments had been made; there being on the other hand, much more reason to consider the executor to be better informed con- cerning the testator's circumstances than the legatees ; whom there- fore his Lordship would not order to refund in such a suit. Sir John Strange, M. R. expressed himself to the like effect in Orr v. Kaines,(z) " The rule (said he) is, that, whenever an ex- ecutor pays a legacy, it is presumed he has sufficient to pay all lega- cies, and the Court will oblige him, if solvent, to pay the rest, and not permit him to maintain a suit to compel the legatee whom he voluntarily paid, to refund. So in Keylinge's case, (a) A. after giving several legacies, ap- pointed B. his executor and residuary legatee. Great part of the assets consisted of East India stock, which. A. directed to be con- verted into money with all convenient dispatch. The stock bore a good price at ASs death, and some of the legatees requiring pay- ment of their legacies, B. gave them bonds for the amounts, under the impression that the estate was sufficient to pay all the legacies. B. kept the stock, which became so depreciated in value as to cause a deficiency of assets fully to discharge the other legacies. In con- sequence of this accident, B. instituted the suit against the legatees (u) 2 Ves. sen. 194. (or) 2 Vcntr. 360. 1 Vern 94. (y) 2 P. Will. 292. 296. (z) 2 Ves. sen. 194. and see Newman v. Barton, 2 Vern. 205. (a) Hil. Term, 1702. reported 1 Eq. Ca, Abr. 239. pi. 25. 316 The Refunding [Cn. VII to whom he had given bonds, to oblige them to refund and abate, and that those remaining unpaid might take their legacies propor- tionally at the then price of the stock. But the Lord Keeper de- clined to relieve against the bonds, and ordered B. to answer for the stock at its value at the expiration of a year after the testator's death. Since payments made to legatees by an executor under the cir- cumstances before described amount to a devctstavit, by reason of there being a voluntary and improper disposition of assets to the prejudice of other legatees, it follows, that if a legatee obtain pay- ment of his legacy by compulsion, as by a decree in equity, or if just debts be discovered and paid by the executor after discharge of some of the legacies, he may maintain a suit to oblige those legatees to refund ; for it is clear, that in neither case was his disposition of the assets blameable, so as to charge him with the commission of a devastavit. Accordingly in Newman v. Barton,(b] the Court distinguished between the voluntary and compulsory payment of a legacy by the executor ; holding that he could not oblige the legatee to refund in the first instance, but that he was entitled to do so in the second. Again In Nelthrop v. Biscoe,(c\ it was said, and admitted by the Court, that if executors pay away the assets in legacies, and afterwards debts appear, and they be obliged to discharge them, (of which debts they had no notice before the legacies were paid,) the ex- ecutors by a bill might compel the legatees to refund. So also in another case,(rf) where an executor filed a bill against a legatee to refund a legacy voluntarily paid hirn by the executor, the assets falling short to satisfy the testator's debts, the legatee was ordered to refund ; the Court declaring that an executor may institute a suit against a legatee to refund a legacy voluntarily paid, as well as a creditor, and for this reason ; an executor paying a debt of the testator out of his own pocket stands in the creditor's place, and has the same equity against a legatee to compel him to refund. 2. That a creditor has a right to call upon legatees to refund is a proposition which cannot be doubted. The certainty that a creditor has such a privilege was declared by the Court of Chancery, in Noel v. Robinson,(e) and Newman v. Barton,(f) and was acted upon in the following instance : A. being indebted to B. appointed C, his executor. C. wasted the assets, and died, having bequeathed several legacies, and appoint- ed D. his executor, who. paid those legacies. B., the creditor of the first testator, commenced a suit against D. for the payment of the debt, and also against the legatees of the second testator, who was the executor of the first, to compel them to refund, there not being a sufficiency of assets of the first testator. And the Court ordered the legatees to refund. (g) 3. With respe.ct to the equity of one legatee to make another re- fund, it may be stated as a general rule, that an unsatisfied legatee (*) 2 V ern. 205. . ( c ) 1 C han. Ca. 135. (d) Da-vta v. Davis, 8 Vin. Abr. "Devise," 423 pi. 35. W l Vern - 94 - (/) 2 Vern. 205. ,(g) Anon. 1 Vern. 162. SECT. III.] of Legacies. 317 cannot maintain a suit against another, who has been paid by the ex- ecutor; because the remedy in the first instance, is against the ex- ecutor ;(A) who, by discharging one legacy, has admitted assets for the payment of all. But an exception to this rule occurs, when the executor is in in- solvent circumstances ; for since the unsatisfied legatee can have no redress against him, he would be without a remedy, unless permit- ted to call upon the other legatee to refund. (i) Still this permission is qualified, and subject to the following distinctions: If the assets be originally sufficient to satisfy all the legacies, and one of the legatees procure from the executor, either by or without suit, payment of his legacy ; and then the executor wastes the estate, so as to render it deficient to discharge the remaining bequests, those legatees cannot oblige the satisfied legatee to refund: 1st. because the payment was not a devastavit in the executor; and 2dly, because the legatee is protected by the principle, that vigilantibus, non dor- mientibus jura subveniunt. But If the assets be originally deficient to answer all the legacies, and a legatee receive from the executor his legacy in full ; in that case, as the payment was a devastavit by the executor, and it is a rule in equity, that upon a deficiency of assets, all general legatees shall proportionally abate, the Court will entertain a suit by the unsatis- fied legatees, to compel the one so paid, to refund. The distinctions upon the present subject are thus stated by Sir Joseph Jekyll,(k) in the case referred to in the note. " That as all the legatees are, upon a deficiency cf assets, to be paid in propor- tion, so, if the executor paid one of them, the rest should make him refund in proportion; and if one of the legatees obtained a decree for his legacy, and was paid, and afterwards a deficiency happened, the legatee who recovered should refund notwithstanding, in imita- tion of the spiritual court, where a legatee recovering his legacy was made to give security to refund in proportion. But that if the ex- ecutor had at first enough to pay all the legacies, and afterwards by his wasting the assets occasioned the deficiency ; the legatee, who had recovered his legacy, should not be compelled to refund, but should retain the advantage of his legal diligence, which the other legatees neglected, in not bringing their bill in time, before the de- vastavit of the executor ; whereas, if they had commenced their suit before the commission of the waste, they might have obtained the same success." To these observations, may be added the case of Walcott v. Hall,(l) in which A. was entitled to a legacy of 501. payable at twenty-one, or marriage, with interest in the intermediate period. The executor proved the will; and, after retaining the 50Z. for ./#. when he attained the above age, or married, he paid the sur- plus of the testator's personal estate to the residuary legatees, as directed by the will. During .#.' minority, the executor became a bankrupt, and obtained his certificate. A. having attained twenty- one, filed a bill against the executor and the residuary legatees for the legacy of 50/. insisting, that if the certificate were a bar to his (A) See Mel v. Robinson, 1 Vem. 90 & 94. Ed. by Raithby, see also 2 Ves. sen. 194. () 2 Ves. sen. 194. () Anon. 1 P. Will. 495. and see 1 Vern. 94. (/) 2 Bro. C. C. 305. VOL. I. S S 1 18 The Refunding of Legacies. [Cn. VII. demand against the executor, he was entitled to have it paid by the residuary legatees. The Master of the Rolls having decided, that the certificate was a bar to the claim against the executor, said, the residuary legatees could not be liable, and (as reported) that if they had filed a bill for the residue, the Court would have ordered it to be paid, without any appropriation of the legacy of 501. ; and that the residuary legatees had received no more than what they were entitled to. The remarks to be made upon the last' case are these : that since the residuary legatees received no more than what they were enti- tled to, the executor's payment was perfectly fair, and no devastavit; which circumstance, together with the original sufficiency of the as- sets to satisfy all demands upon them, took away all equity from the particular legatee to call upon the residuary legatees to answer for the executor's misapplication of the 50Z. And with respect to the observation attributed to the Matesr of the Rolls, by Mr. Brown, viz. that in a suit by the residuary legatees, the Court would have order- ed payment of the surplus without an appropriation of the particular legacy its accuracy may be doubted ; as it is presumed, that the Court would have taken care of the infant's legacy by securing it in the usual manner. 4. The remaining subject for consideration in this section is, whether in instances where the legatees are under the necessity of refunding, they will be required to return principal only, or princi- pal with interest? The rule applicable to this sjubject was stated by Lord Eldon in Gittins v. Steele.(rri) " If (said his Lordship) a legacy have been erroneously paid to a legatee, who has no farther property in the estate ; in recalling that payment, I apprehend that the rule of the Court is, not to charge interest ; but if the legatee is entitled to another fund making interest in the hands of the Court, justice must be done out of his share." In the case referred to,(n) a legacy of 7000J. was improperly paid out of the personal, instead of the real estate, the latter being made primarily liable to that bequest by the will. The legatee w r as also one of the three residuary legatees, and the personal estate was in the hands of the Court of Chancery, producing interest. A question arose between the other two residuary legatees and the particular legatee, whether the latter (he being also a residuary legatee) should be charged with interest upon the 7000/. erroneously taken out of the personal assets 9 And Lord Eldon decided in the affirmative, upon the distinction before stated. (m) 1 Swanst 200. (n) Ibid. 24. 199 SECT. I.] Of Lapsed Legacies. 319 CHAPTER VIII. Of Lapsed Legacies. SECT. I. Of the lapse of an individual Legacy by the death of the Legatee during the life of the Testator. 1. When the bequest lapses, although made to the legatee, his executors, administrators, or personal representatives. 2. Of the admissibility o/"parol evidence of the tes- tator's intention that the executors, administrators, or personal representatives were meant to take if the legatee died before him. 3. Exceptions to the rule of lapse, when the legacy is given to the executors, administrators, or personal representatives of the legatee. SECT. II. Of lapse (where the person named in the will is debtor to the Testator) depending upon the cir- cumstance whether the benefit be given as a Legacy, or intended in the nature of a Release. SECT. III. Effect of the death of Legatees before the testator upon the interests of persons in remainder, when the Legacies are limited over upon the happen- ing of particular events. 1. Of lapse, when a legacy is given for a particular purpose, with a bequest over, if the legatee die before the object be accomplished ; but he lives to complete the purpose, and dies during the life of the testator. 2. Of lapse, when the event upon which a legacy is given over happens in the testator's life-time, and the legatee dies before him. 3. Of lapse, when the legatee dies before the. testator, and prior to the event happening upon which the lega- cy is limited to another person. SECT. IV. Of lapse of Legacies given to persons in JOINT- TENANCY, or as TENANTS IN COMMON. 1 . In joint-tenancy. 2. jls tenants in common and 1. When given to children. 2. When with a limitation over to survivors, And 3. Of lapse of accrued shares. SECT. V. Of lapsed Legacies, when the bequests are made under POWERS. SECT. VI. Of the persons entitled to lapsed Interests. 1. When the subjects are general legacies or personal residues. 2. When they are legacies payable out of lands, or the proceeds of lands directed to be sold. 320 Of Lapsed Legacies* [Cn. VIII. SECT. I. Of the Lapse of an individual Legacy by the death of the Legatee during the life of the Testator, And 1. WHEN the bequest lapses, although made to the executor or administrators, or the personal representatives of the legatee. No rule is more clearly established than that a testamentary dis- position must lapse by the death of a legatee during the life of the testator. And it will not vary the rule, although the bequest be made to the legatee, his executors or administrators ; for such words are of no importance, inasmuch as those persons would have taken the legacy in succession and by representation, if it had vested in the legatee, whether expressly named by the testator or not ; but since the legatee's death before the testator, prevented his ever tak- ing any interest in the bequest, it follows that his executors or ad- ministrators can, by no possibility, make a title to that which never vested in the testator. This is the principle of the rule, which equally applies to devises of real, as to bequests of personal estate; so that if lands were devised to A. and his heirs, and he died before the devisor, leaving an heir living at the death of the testator, the heir could not make a title to the estate ; because he was intended to take it in succession as representative of the devisee, but which was impossible from the accident of the latter dying before the de- visor; an event that prevented the devisee taking any interest in the property transmissible to his heir. (a) These must be admitted to be hard cases, and are probably contrary to the intention of testa- tors; but as the rule is clear, a court of equity requires an equally manifest intention of testators, that their legal representatives were not meant to take by representation, but as purchasers in their own rights. A leading case upon this subject is Elliot v. Davenport, (6) in which B. being indebted to Ji. in 4001. by recognizance, A. be- queathed to him, his executors, administrators, and assigns, the 4001. which he owed her (the testatrix,) with all interest due for the same; provided he paid out of that sum several legacies to his children, amounting to about 150Z. ; and the remainder of the money the tes- tatrix gave to B. his executors, administrators, and assigns. The testatrix desired her executors not to claim or meddle with the 4001. but freely to deliver up the security for the same into the hands of B., his executors, administrators, and assigns, and to seal and exe- cute to him and them such reasonable releases and discharges, and acknowledge satisfaction for the 40Ql. for the safety of B. &c., as B. &c. should think proper. B. died before the testatrix, and the plaintiff, the heir of B., filed the bill against the executor of the tes- tatrix to be discharged from the recognizance ; upon which a ques- tion arose concerning so much of the 4001. as was given to B., viz. whether it was not a lapsed bequest. And Lord Cowper determined in the affirmative, in conformity with the rule before stated; and he considered the direction to the executors to deliver up the security, &c. to the legatee, as ancillary to the bequest, and merely legatory, and therefore insufficient to convert the case into an exception to the general rule. The reporter observes, in a note to the last case, that the opinion of the Master of the Rolls was different from Lord Cowper's deci- () Brett v. Rigden, Plowd. 340. (6) i p. Will. 83. SECT. I.] Of Lapsed Legacies. 321 sion, and that Lord Cowper even said it was a doubtful case. Yet it would seem, for the reasons before detailed, that the decree is founded upon solid principle; and its authority has been admitted by subsequent cases. (c) Since then a legacy to A., his executors or administrators, will, as we have seen, lapse by his death before the testator, so will a lega- cy given to A. and his personal representatives; for in each case the additional words are unnecessary, (rf) and merely express what the law would have directed if the testator had been silent on the sub- ject ; viz. that if A. survive the testator (an event which the gift im- plies, since no testator could be supposed to mean to give to any but those persons who shall survive him,) and afterwards die before the legacy becomes payable, his personal representative shall receive it. Hence it appears that the mere naming of the executors, ad- ministrators, or personal representatives of A. is not inconsistent with the rule before mentioned respecting the lapse of legacies, and does not unequivocally show the testator's intention to substitute those persons in the place of A. in the event of ASs death before him. The rule in regard to lapse will equally apply, although the lega- cy be not immediate, but expectant upon a life interest, and the form of bequest be to the legatee, or his executors or administrators, or to his personal representatives ; because the testator may have merely intended to provide against the death of the legatee between his own decease and that of the tenant for life. Since, therefore, there is a period to which the gift to the executors or administrators or personal representatives of the legatee may refer, without inter- fering with a lapse in the event of his death before the testator, the intention on the part of the latter to provide against that contingen- cy, is not sufficiently certain to counteract the general rule ; so that if the legatee die during the life of the testator, his legacy will be lost. This point was determined by Lord Alvanley in the case of Cor- byn v. French,(e) in which the testator gave his residuary estate to trustees, to place at interest, and directed them to pay that interest to his wife for life, and at her death 2000Z. (part of the capital) to his niece B. " or to her proper representative," if she should not be liv- ing at his wife's decease. The testator also gave to each of his sis- ters' children (naming them) " or their representatives or representa- tive," 2000J. (other part of the capital.) John, one of the children, died before the testator ; and the question was, whether his legacy lapsed or belonged to his representatives '? And Lord Alvanley de- termined it was lost for the reasons before stated ; his Honour ob- serving, " that the question could be hardly raised upon the will ; for (said he) look at the preceding legacy to B. Would it not have lapsed if she had died before the testator 9 Beyond all question it would have done so. It is nothing more thSn saying the legacy shall go to her representatives if she die before the wife. And as to the other legatees, it is nothing more than a gift to them at the wife's death, which was only intended as a beneficial interest to them, and as such must vest in them before it could be transmissible. It is (c) See Tofilis v. Baker, 2 Cox, 122, Pickering v. Lord Stamford, 3 Ves. 493. Corbyn v. French, 4 Ves. 435. Maybank v. Brooks, 1 Bro. C. C. 84. Hutche- ton v. Hammond, 3 Bro. C. C. 129. 143. (d) 4 Ves. 435. (e) Ibid. 418. 435. and sezHutc/iesonv. Hammond, 3 Bro. C. C. 129. 143. S. P. 322 Of Lapsed Legacies. [Cn. VIII. perfectly clear that where the fund is given to one for life, and after the death of that person to several others, and in case of their death to their representatives, there is no reason to presume an intention that it shall not lapse by the death of the legatee in the life of the testator." Thus in Bone v. Cook,(f) the testatrix devised and bequeathed the general residue of her real and personal estate to trustees, in trust to sell and invest the produce in the public funds, &c. and pay the interest to Sarah Jelly for life, and after her death (as to one moiety) to pay the same unto and between the two children of Eli- zabeth Bone, deceased, equally ; and in case of the death of any of the said legatees before their legacies should become payable, then that the legacy of each of them so dying should go to and be paid amongst his, her, or their children, share and share alike ; and in case of such decease of any of the said legatees without having a child or children, the legacy of him or her so dying should go to his or her executors or administrators as part of his or her personal estate. One of the children of Elizabeth Bone died in the testatrix's life- time, unmarried. It was held, that the legacy of such child lapsed ; the intervening provision (substituting the children of the legatee) affording no reason for presuming an intention that the legacy should not lapse. The principle of the last cases equally applies where the payment of the legacy is postponed to the expiration of a year, or of a longer period, after the testator's death ; for, in such instances, the substi- tution of executors, administrators, or personal representatives in the places of the legatees may be intended to provide against the death of any of them after the decease of the testators, and before they become entitled to receive the legacies : a construction quite consis- tent with the rule of lapse in the event of any of the legatees dying during the life of the testators. It follows, therefore, that if legacies be given to B., C. and Z)., and directed to be paid to them or to their several executors, or adminis- trators, or personal representatives, or " heirs," a term synonimous with personal representatives, at the end of a year after the testator's death, and B. die before the testator, the legacy intended for him will be lapsed. This point was so adjudged in the case of Tidwell v. jlriel,(g) in which the Court acknowledged the principal before stated, in observ- ing, that "payment to the representative at the end of a year after the testator's death, if the legatee be not then living, is not inconsis- tent with a personal gift to the legatee." 2. It has indeed been attempted to introduce parol evidence of the testator's intention to substitute the executors or administrators of the legatee in his place, in order to prevent the lapse occasioned by his death before the tesfetor. But the Court of Chancery rejected such testimony. Accordingly, in Maybank v. Brooks, (h) the testator (whose father was indebted to Maybank} left a legacy of 8501. of equal amount with the debt, to 'Maybank, his executors, administrators, or assigns. At the time of the gift of this legacy, Maybank was dead, but no notice of the circumstance was taken in the will. The personal re- W ;M' lel< Exch> Re P' 168 ' 13 Price > 33 2. and see Chap. II. s. 8. (#) 3 Mad. 404. 409. (A) i firo. C. C. 84. SECT. I.] Of Lapsed Legacies. 323 presentative of Maybank filed a bill for the legacy, insisting that the words " his executors, administrators, or assigns," made it trans- missible ; and were of the same import as if the testator had said, "and if Maybank shall be dead, I give the same to such person or persons as shall be executor, administrator, or assign ;" and that the testator intended the legacy to go to Maybank's family in payment to him of the debt from the testator's father. To establish this case, the plaintiff proposed to read parol evidence of the testator's know- ledge that Maybank was dead, and of his intention that the legacy should go to his representative. But Lord Thurlow rejected it, re- marking that all the cases of the admission of par.ol evidence were short of the present ; and he noticed its inefficacy, if received, in saying, " the only fact to which evidence was offered appeared to be that the death of Maybank was within the knowledge of the testator; #nd in order to show his intention that the legacy should be trans- missible, which could not be from a legatee who had been dead several years." Hence it appears, that whether the evidence were admitted or not, it was equally useless to the plaintiff. The legacy was declared to be lapsed as falling within the rule before stated. 3. The rule, however, like all others, admits of exceptions, but which must be founded upon the manifest intention of testators, that the legacies should not lapse by the deaths of the legatees before them, and the appointment of other persons to take the legacies upon . the happening of those events ; for Lord Hardwicke was of opinion, that without such a nomination, intention alone would be insuffi- cient to prevent the application of the rule. In Sibley v. Cook,(i) his Lordship thus expressed himself: " If a man devise real estate to /. S. and his heirs, and signify or indicate his intention, that if/. S, die before him the devise should not lapse, yet, unless he nomi- nated another devisee, the testator's heir is not excluded, notwith- standing that declaration : so in the gift of a personal legacy to A., although the testator showed an intention that the legacy should not lapse if A. die before him, yet that is not sufficient to exclude the next of kin." To a similar effect were the expressions of the Lord Chief Baron of the Court of Exchequer, in the case of Toplis v. Ba- ker, (k) His Lordship, in allusion to the last case, and that of Elliot v. Davenport, requiring the will to be specially penned to prevent a lapse, said, "If this mean, that some other person must be substitut- ed by the will in the room of the legatee dying, then I think that is a clear proposition ; but I doubt whether any thing else will do. Put the case of a testator saying, 'I give to A., and if A. shall die before me, yet I do not mean the legacy shall lapse,' I do not know how to prevent this legacy from lapsing ; but if the testator had said, ' if A. shall die, I mean his executors shall take it,' then I understand the effect very clearly ; the executors being specially mentioned, and substituted for the legatee." Upon such reasoning as the above, Lord Hardwicke determined the case of Sibley v. Cook,(l) in which A. bequeathed in the follow- ing words : " I give the several legacies and sums following, which I will shall be paid to the several persons hereinafter named, and if any of those persons die before the same become due and payable, I (0 3 Atk. 573. (fr) 2 Cox, 121. CO 3 Atk. 572. 324 Of Lapsed Legacies. [On. VIII. will that they or any of them shall not be deemed lapsed legacies." The testatrix then particularised the several legatees, and proceeded thus : to Jinn the wife of R. Wensley, and to her executors or ad- ministrators, I give the sum of 50Z." Ann died before the testatrix, and her husband administered to her. The question was, whether the legacy lapsed in consequence of that accident*? And Lord Hardwicke determined in the negative, and said, " that the testatrix expressly provided against a lapse if Ann died before her ; for she says, if any of the legatees die before their legacies become due and payable, I will that they or any of them shall not be deemed lapsed legacies. And subsequently to this the testatrix bequeaths to Jinn, and to her executors and administrators, 501.; so that in case of her death before the testatrix, other persons are named to take." The last authority may seem at the first impression to militate in principle against the before stated case of Elliot v. Davenport, but upon more mature consideration, their seeming inconsistency may be reconciled. It will appear from an attentive perusal of Sibley v. Cook, that the testatrix did not insert the terms " executors or ad- ministrators" as usual words of annexation, but descriptive of a class of persons distinct from Ann Wensley, who were to take the legacy upon her death in the lifetime of the testatrix. For the testatrix hav- ing expressly declared that none of the legacies should lapse, pro- ceeded eodemflatuto give the legacy to Jinn, her " executors or ad- ministrators ;" with the intention of substituting them in Jinn's place upon the happening of the event which she first described. But in the other case, as also that of Maybank v. Brooks, before stated(w) no such inference of intention could be raised from any expressions used prior or subsequently to the bequests to the legatees their " ex- ecutors or administrators;" which latter^vords seem to have been in- troduced without any particular meaning, and purely as customary expressions. Consistent with the decision in Sibley v. Cook is that of Bridge v. Abbott, (n) wherein the words " legal representatives," were used in- stead of " executors or administrators." In that case the testatrix bequeathed the residue of her personal estate to several persons in equal shares, " but in case of the death of any of them before her, she directed that the shares of those dying should go to, be had, and received by his or her legal representatives" One of the legatees died before the testatrix, and Lord Alvanhy, M. R. after observing that nothing was more clear than that a testator might prevent a le- gacy from lapsing, and the necessity, according to Sibley v. Cook, not only that he should declare the legacy should not lapse, but also who should take in the place of the legatee, decreed that the present bequest did not lapse, but belonged to such persons as were the next of kin to the residuary legatee at the death of the testatrix. If a legacy be so given as to be payable at the testator's death, the period of a receipt not being expressly postponed by him, and if the form of bequest be to the legatee or his personal representatives, it is presumed that the legacy will not lapse by his death before the testator, and for these reasons: there is no period at which the re- presentatives can take, as intended by the will, except in consequence of the legatee dying in the lifetime of the testator. The testator's (w) Ante, p. 322. (n) 3 Bro. C. C. 224. SECT. II.] Of Lapsed Legacies. 325 intention, therefore, in naming the representatives must have been to guard against a lapse by the death of the legatee before him. The intent is as manifest as if actually expressed ; and since persons are designated to take the legacy upon the happening of that contin- gency, there is an union of the two circumstances, which (as we have seen) are required and are sufficient to prevent the lapsing of a legacy. In Corbyn v. French,(o) although Lord Mvanley avoided a decision upon the question, as not being necessary, it may probably be inferred from his expressions, that his opinion was in favour of the rights of the representative. The same observation applies to the language of Wright, J. in Stone v. Evans,(p) but in Tidwell v. *flriel,(q) the Court was more explicit in declaring its opinion in fa- vour of the representative. Another exception to the general rule applicable to lapses, is where the legacy is given to a trustee for another person ; for if the bequest were made to B. in trust for C., and B. died before the tes- tator, leaving C. who survived the testator, the trustees' death would not be permitted to prejudice C., but C. would be entitled to the legacy. And the equity is the same, although the trust be not dis- tinctly expressed, but is created by construction of law. Thus, in Bales v. England,(r) the testatrix gave to B. 300Z. with a declaration of her will, that " B. should give the 300/. to his daugh- ter C. at his death or sooner, if there were occasion for her better preferment." B. died before the testatrix, when C. survived; and the question was, whether the legacy lapsed *? The Court declared, that by the effect of the above form of bequest, B. was a trustee for C. whose interest could not be affected by the death of the former during the life of the testatrix. And the bequest was compared to one made in the following terms, viz. to B. for life, then to C. in which case C.'s title could not be disputed. So also it will be if lands or personal estate be devised to B. charged with a legacy to C'., for although B. died before the testa- tor, an event by which the bequest is lapsed, so far as B. is concern- ed, yet the charge in favour of C. will be supported in a court of equity. An instance of this kind occurred in the case of Wigg v. Wigg,(s] in which the testator Wigg devised real estate to his second son Thomas, upon condition that he or his heirs paid to the testator's six grandchildren 90Z. in equal shares, to whom were given powers of entry and distress in case of non-payment. Thomas died before the testator, and consequently the devise of the land lapsed. But the question was, whether the charge of 90/. nevertheless subsisted *? And Lord Hardwicke decided in the affirmative, and directed the estate to be sold to raise the money for the legatees. SECT. II. Of Lapse, (where the person named in the will is debtor to the testator,) depending upon the circumstance, whether the benefit be given as a legacy, or intended in the nature of a release. fo) 4 Ves. 435. (/*) 2 Atk. 87. (?) 3 Mad. 409. (r) Pre. Ch. 200. and see Mag-bridge v. Thc."kwell, 1 Ves. jun. 465. 475. (s) 1 Atk. 382. and see Oke v. 'Heath, 1 Ves. sen. 135. 141. stated infra. VOL. I. T t 326 Of Lapsed Legacies. [Cn. VIII. With respect to the doctrine of lapsed bequests, a distinction prevails when the bequest is intended to operate in the nature of a release, or in extinguishment of a debt, and when as a mere legacy. In the latter case we have seen, from the authorities before produc- ed, that in general the legatee's death, during the life of the testator, will defeat the bequest, but in the former a court of equity will carry into effect the testator's intention against all persons except credi- tors.^) It follows from this distinction between a legacy and a tes- tamentary act in the nature of a release, that in order to decide whether the will be a discharge to a debtor-legatee's estate, al- though he die in the testator's lifetime, it is necessary to ascertain whether the benefit was meant as a legacy, or a mere direction to the executor to deliver up the security or to cancel the obligation, or whether it amounts to a declaration by the testator of his inten- tion that the debts should not be claimed from his debtor personally, or from his estate. For if the benefit appear to be intended as a legacy, personal to the debtor, and the direction as to the delivery of the security is merely ancillary to that legacy, the death of the debtor before the testator will occasion a lapse, and the debt will be recoverable by the testator's executors. But if, on the contrary, the testator merely treat the debt as subsisting, and do not purport to bequeath or give it to the debtor, but uses words of forgiveness or remission, it will be presumed that the testator meant in all events to cancel the obligation ; an intention which will be effectuated by a court of equity, and which the death of the testator will not be permitted to disappoint. Of the FIRST distinction, the case of Elliot v. Davenport, before stated(w) is an instance, for there the debt of 400/. was expressly bequeathed to the debtor, charged with a legacy of 150/. and the testator did not intend the security to be delivered up under the general direction, until the 1501. were paid. Such delivery there- fore, and remission of the debt was not distinct from, but ancillary to, the bequest of it before made. The case of Toplis v. Baker(x] next followed, in which the testa- tor gave to one Draper 4001. that the latter owed him upon a mort- gage. He then ordered his executor " to give up to Draper all bonds owing from him to the testator, and which should be found in the testator's possession at his death, with all interest due thereon." It appeared that Draper had executed a bond as a collateral security, and was also indebted to the testator by another bond, though it seems that the Court's attention was solely drawn to the bond and mortgage, which formed one security. Draper died before the tes- tator, and the question was, whether this was a lapsed bequest *? The Court of exchequer determined in the affirmative, upon the ground, that the benefit intended for Draper operated as a legacy by the word "give," and that such was the intention appeared from the direction to the executor as to delivering up the bonds, which was to be to Draper personally. So that Draper's interest being purely testamentary and personal, and the order for delivery of the bonds being consequential and ancillary to the bequest, the 01 ' *' and chap> XVI1 ' sect> 4< (M) Ante> p< m SECT. III.] Of Lapsed Legacies. 327 Court considered the case the same in substance with Elliot v. Da- venport,(y) and therefore made a similar decree. Of the SECOND distinction, the case of Sibthorp v. Maxom(z) is an example. The testatrix bequeathed in the following terms : " I for- give my son-in-law Chillingivorth a debt of 500/. due to me upon bond, and all interest that shall be due from the same at my decease, and desire my executor to deliver up the bond to be cancelled." The legatee died before the testatrix, and the question was, whether, under the above form of bequest, the debt was subsisting, although Chillingworth died before the devisor *? Lord Hardwicke decided that the debt was discharged according to the distinctions before stated. The remarks which occur upon perusal of the last case are these; that the whole testamentary clause is one of remission and not of gift. It is neither more nor less than an intended release or extin- guishment of the debt, at all events. In the same sentence that the debt is forgiven, the security is directed to be delivered up ; and not to the debtor personally, but the surrender was to be made ge- nerally, so that his representative was within the terms of the order. It was in fact, a plain declaration, that neither the debtor nor his estate should ever be called upon to pay, nor the estate of the tes- tator receive the money due from the former to the latter. Lord Hardwicke, in his judgment, marks the differences between this and the case of Elliot v. Davenport, in the following terms : " In Elliot v. Davenport, the words are not penned as forgiveness or remission. There was no intention to release the recognizance, until B. paid 150Z. out of the money secured by it; but here is a clear intention to release the debt. There it was to be delivered up to B. here in general, to be cancelled. There, the right of ac- tion subsisted, which was the reason of that opinion ; here, it would be too nice to make such a distinction, which would too much cir- cumscribe the bounty that was intended by the testatrix for her family." His Lordship also observed, that, " had it been said in Elliot v. Davenport, ' I forgive my son such a debt,' and the bond had been ordered to be delivered up by the executor to be can- celled; it would have been held a discharge; and that there was nothing personal in the present case, in the direction that the bond should be delivered up to be cancelled. "(a) SECT. III. Effect of the death of legatees before the testator, upon the interests of persons in remainder, when the le- gacies are limited over upon the happening of particular events. In treating upon the effect of a legatee's death before the testator, on the interest of persons in remainder, it is proposed to consider the subject 1. Of lapse, when a legacy is given for a particular purpose, with a bequest over, if the legatee die before the object is completed, but he lives to accomplish the purpose, and therr dies during the life of the testator. It it settled, that conditional limitations are never to be extended (y) Ante, p. 320. (z) 3 Atk, 580. (a) See 2 Cox's Rep. 121. 328 Of Lapsed Legacies. [Cn. VIII. beyond AV j ia t is absolutely necessary from the context of the will. It is a consequence of this doctrine, that if a legacy be given to A. to defray the expense of building a house, which Jl. intends to erect at B., and in the event of #.' death, before the house be built, the legacy is given to C., if Jl. complete the building, and die during the life of the testator, C. cannot claim the bequest, because the legacy was only given to him if Jl. died before the building of the house, a contingency which did not happen. The legacy there- fore lapses by the death of Jl. in 'the lifetime of the testator. The case of Humberstone v. Stanton,(b) was decided upon this principle. The testator bequeathed to trustees 750/. three per cent bank annuities, for his wife for life, with a direction to sell the fractional 50J. to place out his son Joseph an apprentice. He then gave 450Z. of the annuities, or 4001. (if the 50/. had been applied as above) after his wife's death to Joseph, upon completing his ap- prenticeship. The intermediate dividends to be applied for his support and clothing, until his service expired. But if Joseph died before the completion of his apprenticeship, he gave the annuities to his other children nominatim, or to such of them as should be living when the contingency happened. After the date of this will, the testator placed Joseph an apprentice ; who, having completed the necessary term of service, died before the testator. The ques- tion was, whether the legacy lapsed, or belonged to the other chil- dren under the executory limitation 1 ? And Sir William Grant, M. R. determined that as the legacy was disposed of in the event only of Joseph's death, before finishing his apprenticeship, the substi- tuted limitation was disappointed, and a lapse necessarily ensued by the death of Joseph before the testator. 2. The principle of the last determination applies to all those cases in which distinct legacies, (c) are given over upon events which happen during the testator's life, and the persons to whom the bequests are first made, die before the testator. For since the executory limitations are made expressly to depend upon the not happening of the events described : if they occur while the legatees live, and they die either before or after the testator, it is clear from the terms of the will, that the executory limitations cannot take place; the contingencies upon which they were to arise never hav- ing had existence. The testator's intention may sometimes be de- feated by the construction, but it is his own fault as quod voluit non dixit ; and it is more eligible that a private inconvenience should be tolerated, than a certain known rule of construction be infringed, and a court of justice assume the power, on mere conjecture, to make a codicil to the will. In these cases, therefore, the legacies lapse. In illustration of these remarks, we shall produce two in- stances where the happening, in the testator's lifetime, of the events in which the legacies were given, occasioned those legacies to lapse by the deaths of the legatees before the testators, notwithstanding the executory bequests of the legacies to other persons. In Calthorpe'v. Gough,(d) 10,0001. were bequeathed in trust for the separate use of Lady Gough, and if she died before her husband, \ Y eS> ^ a> 385< (0 S 66 sect 4 - "Joint tenancy," p. 330. in exception 3 Bro. C. C. 395. note. 1 Ves. & Bea. 389. SECT. III.] Of Lapsed Legacies. 329 then according to her appointment; and if she made none, the money was to go among her children, but if she survived her husband the whole was to belong to her. The event in which the children were to take did not happen ; that in which she was to take abso- lutely occurred, but she died during the life of the testator. And it was decided that the legacy lapsed. So also in Doo v. Brebant.,(e) a legacy was given in trust for Sarah Counsell until she attained the age of twenty-one, with a di- rection for the transfer of it to her at that time ; but, in case she died under twenty-one, leaving children, then in trust for them, and if she died under that age without leaving a child or children, or, there being any, if all of them died under twenty-one, the legacy was given to other persons. Sarah attained the age of twenty-one, mar- ried, and had children ; but she died before the testatrix, leaving two infant children. It appears from Mr. Brown's report of the case, that Lord Thurlow disapproved of the last, and inclined to the opi- nion, that upon the principle of Jones v. Westcomb,(f) and other cases of that class, the children should be permitted to take ; but he sent a case to the Court of King's Bench, which held with great clearness, that the children could not take any thing. On which occasion Lord Kenyon said, " if this event had occurred to the tes- tatrix, most probably she would have provided for it, and given the money to the grand-children ; but as she has not done so, we cannot make a will for her." The legacy therefore lapsed, and in conse- quence of the opinion of the court of law the Lords Commissioners of the Great Seal afterwards dismissed the bill of the children claiming the legacy. (g) In the cases just discussed, the lapse was occasioned by the deaths of the legatees in the lifetime of testators, where the events upon which the legacies were given happened during the joint lives of the legatees and of the testators ; and which would have entitled the former to the bequests absolutely, had they survived the latter. It remains to consider, 3. Whether, if the events upon which the legacies were limited over had not happened during the lives of the legatees, those lega- cies would lapse to the prejudice of the persons in remainder, by the deaths of the legatees before the testators 9 But since the cases determined upon the subject have been generally on questions be- tween tenants in common, founded on limitations to the survivors in the event of any of them dying under the age of twenty-one, the reader is referred to the next section. Suffice it to remark in this place, that it seems formerly to have been a question whether a be- quest over in case of the death of the legatee before the arrival of a certain time, could take effect when he died during the testator's life, although before the period specified. It is, however, now set- tled, that in such a case the bequest over is effectual, and no lapse occasioned by such a death. So that if a legacy were given to A. payable at twenty-one, and if he died under that age, then to B. ; (e) 3 Bro. C. C. 393. 4 Term. Rep. 706. 1 Ves. & Bea. 389. (/) Pre. Ch. 316. (5-) Seethe next section under "Joint tenancy," and Chap. XIII. sect. 1. also Doe v. Shififihard, Dougl. 75. Williams v. Jones, 1 Russ. 517. 330 Of Lapsed, Legacies. [Cn. VIII. should -.'I- die before twenty-one in the lifetime-of the testator, the legacy would not lapse, but B. would be entitled to it.(A) The principle is obvious. The event upon which the executory limita- tion was to take place has happened, i. e. the death of */2. under twenty-one. That death was not required to be after the demise of the testator, so that a death at any period before twenty is within the terms of the will, and doubtless according to the intention of the testator. Having in the preceding sections treated of the lapses of legacies given to persons singly and individually, the subjects proposed to be next considered are, SECT. IV. Of Lapses, when Legacies are given in Joint tenancy, or in Tenancy in common. And 1. Of bequests in joint tenancy. If a legacy be given to two persons jointly, although one of them happen to die before the testator, or notwithstanding the testator revoke the interest originally intended to be given to either of them; such interest will not be considered lapsed or undisposed of, but will survive to the other legatee. This exception to the general rule relating to lapsed legacies, originates in the nature of the in- terest which joint legatees have in the fund ; for they do not take it per mis only, like tenants in common, (i) but per mis et per tout. With this agrees the observation of Bfidgman, Ch. J. in Davis v. Kemp,(k) " that each is a taker of the whole, but not solely ; for the whote is devised to both, and not a moiety to each." If then upon any event one of the two legatees be deprived of taking the benefit intended for him, the interest of his companion, which ex- tended per tout, and was undivided, becomes absolute in the whole fund. In Bujfar v. Bradford(l) the testator gave four of eight parts of his residuary personal estate " to his niece Bujfar, and the children born of her body." The niece had no child when the will Avas made, but one (the plaintiff) was afterwards born, and during the life of the testator, and the niece died before the testator. Lord Hardwicke determined that the niece and child would have taken in joint ten- ancy had the former lived, but as she died in the testator's lifetime her child should take the whole. So in the case of Humphrey v. Tayleur, (m) A. bequeathed the re- sidue of her real and personal estate to Tayleur and Wauchope, whom she appointed executors. A. afterwards, by a codicil, revoked the nomination of the latter as executor, and what was given to him by the will. Lord Hardwicke decided the effect of revocation to be, to give the whole residue to Tayleur ; upon the principle that he and Wauchope would have taken the fund as joint tenants by the words of the will, if the bequest to Wauchope had not been re- pealed Again In Lov'set v. Sweet,(ri) the testator gave 100Z. part of a mortgage debt, to the son and daughter of William Wicker. Wicker had four (A) 2 Vcrn. 207. 611. IP. Will. 274. 2 P. Will 529. 3 P. Will. 113. Walker v. Main, 1 Jac. & Walk. 1. (i) 3 Ves. & Bea. 54. () Garth. 3. (/) 2 Atk. 220. (m) Ambl. 136. ( n ) Ambl. 175. SECT. VI.] Of Lapsed Legacies. 331 sons and one daughter. None of the sons being able to take, from the uncertainty of the one intended, Lord Hardwicke decreed the whole legacy to the daughter, observing, that it was a joint devise, and in such a case, by whatever cause it happened that one of the joint tenants could not take, the other should have the whole. And in Morly v. Bird,(o) the testator bequeathed to the four daughters of his brother Collins 4001. out of seven, then lying in the three per cent consols. Three of the daughters died before the testator, and Lord Mvanley, M. R. declared the 4001. belonged to the surviving child. Since then legacies given to two or more in joint tenancy will, on the death of any of them in the testator's lifetime, survive to the other legatees, where the terms of the bequest proceed no farther than to give the joint interests ; it may be asked, whether, if a tes- tator add to the gift a declaration, that if any of the joint legatees die under twenty-one, their legacies shall go to the survivors, and one of them after attaining that age die before the testator, his in- terest will lapse and not go over *? In the instance of an individual legatee with a limitation over to another person, if he die before twenty-one, it has been shown that his death before the testator after attaining that age, occasions a lapse of the legacy. (p) But in the present case, as the legatees are intended to be joint^tenants, a cha- racter which would entitl ethe survivors to the whole fund, if no limi- tation over had been inserted, it is presumed, that as such limita- tion cannot take effect upon the event described, the rights of the legatees are restored to the same state as they would have been in had no such executory bequest been introduced into the will ; and, therefore, since the survivors would have taken the whole legacy, although any of them died before the testator, whatever might be the age of the legatee, so in this case they will be equally entitled, although the legatee died after attaining twenty-one. In instances where executors take the residue in the character of executors, or by a joint bequest, they do so in joint tenancy. () for the disposition of real estate. Accordingly, in Sheddon v. Goodrich,(q) the testator devised all his real estates in the islands of Bermuda to his wife for life, with a direction to his executors to sell all his real and personal estates (o) 1 Jac. & Walk. 583. (/i) 29 Car. II. chap. 3. (?) 8 Ves. 481, 495. and see Hooher v. Goodwin, 18 Ves. 156-166. S. P. 1 Jacob. R. 375. 356 Conversion of Real [Cn. XI. after his wife's death, and pay to his three daughters GOOOZ. sterling. The testator appointed his son residuary legatee, bequeathing to him the residue of his estate which should remain in the hands of his executors ; and without making any disposition of the produce from the sale of his real property, after payment of the above legacies. The testator made another will, not properly executed, to pass free- hold lands, by which he gave the residue of his estates, wherever situate, for the benefit of his children. He also by a codicil, not duly attested, to pass lands, devised the residue of his estates for the use of his children, who under the two last instruments claimed the produce from the sale of the lands, after satisfaction of the legacies, in opposition to the heir at law. But Lord Eldon, C. , determined the question in favour of the heir, upon the principle, that the real estate being merely converted into personal for the purpose of pay- ing the legacies, what remained of the produce from the sale, after their satisfaction, was land, and could not pass by the second will or codicil, in consequence of neither of them having been properly at- tested to dispose of real property. It appears from what has been said, that the reason, why the pro- duce from the sale of lands will not pass by a residuary clause dis- posing of personal estate, is, that the real was not converted into that species of property, and therefore did not fall within the terms of the bequest. But since a testator may decide what shall be the nature of his property after his death, and consequently pass his real estate as personal in a residuary bequest of the latter fund, we shall proceed to consider,-^- 2. Under what circumstances the proceeds from the sale of lands have been held to pass with, and as part of personal estate, in a re- siduary bequest of personalty. The blending and disposing of the real proceeds with the per- sonal estate have been constantly considered to- afford an argument for the complete conversion of the real estate into personal ; but that circumstance is not conclusive. The charge may be sub modo only, viz. to answer special purposes ; in which case, as before ap- pears, the surplus produce of the lands will continue real estate. If, however, no particular motive be apparent, to which can be as- cribed an intention to change the nature of the real fund, and the testator has declared or shown an intent that he meant to dispose of his real as personal estate, then the land will pass under a residuary personal clause as personal estate. (r) Such an instance occurred in the case of Malldbar v. Mallabar.(s) The testator devised and bequeathed all his real estates to his sister, upon trust to sell and pay his debts ; and out of the remainder of the purchase money, to discharge several legacies, one of which, 500J., was given to his heir. And, after and subject to debts and legacies, he gave the residue of his personal estate to his said sister, whom he appointed executrix. The question was, whether there was a resulting trust for the heir of the money arising from the sale of the real estate, after payment of the debts and legacies ? And Lord Talhot held, that the testator had made all his property per- sonal ; or rather, he inferred from the purpose of the testator, as far (r) 2 Scho. & Lefroy, 545. () Forrest, 78. 1 Bro. C. C. 509. SECT. II. I into Personal Estate. 357 as it could be collected from the will, that the testator meant, by the residuary clause, to describe not only money strictly personal estate, but money arising from the sale of the real property. His Lord- ship made that inference from the circumstance of the heir having the legacy of 500Z. out of that very money ; and because, if a diffe- rent construction were made, the testator's sister, his residuary lega- tee and executrix, (to whom he clearly intended to give a beneficial interest) would have taken nothing but a troublesome office ; for, if the words " the residue of the personal estate," did not include this money, the personalty must have been first applied to pay debts and legacies in exoneration of the real estate ; and then the executrix would have had an office of trouble without the benefit intended her; a consideration relied upon by Lord King, in the case of Ro- gers v. Rogers. (t) Under those circumstances, Lord Talbot decreed to the sister the whole residue, consisting of the net produce from the sale of the real estate, and the residuary personal property. So in Brown v. Bigg,(u) the testator being possessed of money in the funds and other personal estate, and seized of freehold and copy- hold estates, devised the real 'property to his wife for life, remainder to his godson John Bigg in tail, with remainders over. He also gave to his wife for life, his funded property, but if she married again, he bequeathed to her half the dividends only, and the other half to his nephews and nieces. The testator then ordered and em- powered his wife to sell (if she pleased) with the consent of William Roberts, all his Gransden estates, and the crop, barns, stock, furni- ture, chattels, and effects, with all convenient speed ; and the pro- ceeds to be placed out upon security ; the interest of which, as of all money due to him on other securities (except money in the funds,) he gave to his wife .in like manner as before expressed. He then bequeathed several legacies, and gave (after his wife's death with- out issue by him) the whole of his personal estate, principal and in- terest of every kind, both on public and private securities, not before disposed of, , to his nephews and nieces, naming them, in equal shares. Part of the Gransden estate having been sold by the widow, the produce was claimed both by the heir and the residuary lega- tees ; the latter insisting that they formed part of the testator's per- sonal estate, and, therefore, passed by. the residuary bequest of the personalty; and of that opinion was Sir William Grant, Master of the Rolls. The ground of his Honour's opinion seems to have been, that the testator considered so much of -the produce of his real property, as his widow might sell, to be part of his personal- estate, which clear- ly appeared from the direction to place the real proceeds upon secu- rity, and the disposition of them as, and in the same clause with, his personalty. (f) 3 P. Will. 193. stated supra, p. 345. and, see Coningliam v. Mellish, Pre. Ch. 31 stated ante, p. 347. (M) 7Ves. 280. and see Hutchesonv. Hammond, 3 Bro. 'C. C. 128. 143-147. stated infra, sect, 4, with observations ; also Fletcher v. Ashburner, 1 Bro. C. C. 495, stated sec. 5. and Van v. Barnett t 19 Ves. 102-111, infra, sec. 5. VOL.. I. Z Z 358 Conversion of Real [Cn. XI SECT. III. Rights of testator's executors and next of kin to the net produce from the sale of lands. 1. It seems, that when it clearly appears to have been the testa- tor's intention to impress upon his real estate the character of per- sonal to all intents and purposes, the mere appointment of an ex- ecutor will be sufficient to carry the former as personalty, either for his own benefit, or as a trustee for the next of kin. (a?) The reason is, that an executor is the testator's residuary legatee appointed by law, and entitled as such to all the personal property (except per- haps lapsed interests,) which the testator has not disposed of. Hence it follows, that when the intention that the real estate should be con- verted into and pass as personal is apparent, the executor will, take it beneficially in all cases, where he is so entitled to the personal property ; and that he will be a trustee- of it for the next of kin in all instances, where he is to be considered as holding the personal estate upon the like trust. (y) An instance of this occurred in the case of the Countess of Bris- tol v. Hungerford.(z) A. devised to trustees his freehold estate, to be sold for the payment of debts, and the surplus (.if any) to be con- sidered personal estate, and to go -to his executors, to whom he gave 20Z. a piece. Sir John Trevor, M. R. declared that the surplus of the real and personal estates, were held by the executors in trust for the next of kin of the testator. A decree which could only be pronounced in regard to the real proceeds, upon the ground of their absolute conversion into personalty, and passing as such to the ex- ecutors. But in Gibbs v. Rumsey,(a) a question arose, whether the net produce, of lands devised to executors and trustees in the residuary clause, with the personal estate, to be at their disposal generally (to whom the lands were previously devised upon trust to sell and pay legacies, together with the personal fund) were beneficially given to them as' residuary legatees, or in trust only in their character of trustees and executors. And Sir William Grant determined in favour of their claim as residuary legatees, upon the ground of the residuary clause amounting to an express gift of the net proceeds to them beneficially; and consequently negativing any resulting trust to the heir; and repelling any right of the next of kin, founded upon the presumption of the executor's taking the real proceeds as personal estate upon trust, to distribute among them. In that case, Jinn Clarke devised-Jijer real and personal estate to Henry and James Rumsey, in trust to sell ; and out of the produce, together with her ready money, &c. and all other her estate and effects, she gave her legacies, two of them being of 100Z. to each trustee, for his care and trouble. She then gave the residue of the produce from the sale of her real estate, and the remainder of her personal estate, after payment, of debts, legacies, funeral, and testa- mentary expenses, to her said trustees and executors " to be dispos- (.r) So laid down by Sir William Grant, in Berry v. Usher, II Ves. 91. (y) See Robinson v. Taylor, 2 Bro. C. C. 588-594. (z) 2 Vern. 645. and see 3 P. Will. 194. Ed. by Cox, in nods, where thejreport in Vernon is corrected, and see Southouse v. Bate, 2 Ves. & Bea 396. S. P. supra, P. 353 - (a) 2 Ves. & Bea. 294. SECT. III.] into- Personal Estate. 359 ed of to such person and persons, and in such manner and form, and in such sum and sums of money, as they in their discretion, should, think proper and expedient ; and she appointed Henry and James Rumsey executors. The debts .exceeded the amount of the personal estate, and after satisfying the purposes of the will, there remained a surplus of the money from the sale of the lands ; and to whom it belonged. was the question *? Sir William Grant, M. R. de- clared, that the executors were entitled to it beneficially in the cha- racter of residuary legatees, as before mentioned. The grounds of his decree were these ; that the first words of the residuary clause were an absolute gift, the mere circumstance of giving to the legatees the description of trustees and executors being insufficient to convert them into trustees, by implication of that part of the property expressly bequeathed to them. 2d. That the residue was not given to them upon trust ; and 3dly, tha-t the expressions <' to be disposed of to such person and persons, and in such manner and form, and in such sum and sums of money, as they in their discretion should think proper and expedient," were too indeterminate in their object to raise an implied trust. The next subject to be considered is 2. The right of the testator's next of kin to the net proceeds from the sale of real estate. The title of the next .of kin to the clear produce from the sale of land, depends upon the testator's intention to convert that property into personalty, to all intents and purposes. He has the power to effect that change in the nature of his real estate, so as to preclude all question between his real and personal representatives after his death. (6) Having then such a right, the only instance, it should seem, in which the next of kin can claim the real proceeds in pre- ference to the heir, in the absence of express declaration to that effect, is, where a testator simply directs his real estate to be con- verted into personal, expressing no purpose whatever, in reference to which that conversion was to be made, and abstaining from mak- ing any disposition of the produce, either expressly or impliedly; for in such a case, it seems to be a necessary inference, that the sole intent of directing a sale of the real fund, was to make it personal ; and as the personal estate, if undisposed of, results to the next of kin, the produce of the real property will belong to them, as part of the personal. (c) But that reasoning is inapplicable whefe an object for the conver- sion of the realty into personal property, appears upon the face of the will, as to pay debts and legacies; and the net produce from a sale of the land is undisposed of; for, in such case, there is neither intention nor disposition of the .real proceeds, after the particular objects for conversation are satisfied ; and 'a court of equity will not impute to a testator an intent to convert his real estate into personal, for any other purposes than those which are expressed. Hence it follows, that the net produce from the sale of the estate, retains its real quality, and results to the heir, whose right will not be affected, 1 Bro. C. C. 506. Wainivright v. Benlows, Ambl. 583. 1 Ves. & Bea. 175. 360 Conversion of Real [Cn. XI. although the testator declare that the money shall be considered as part of his personal estate. (d) Thus in Hill v. Cock,(e) William Farnham devised to trustees some of his freehold estates,- together with his personal property, in trust to sell, and out of the proceeds, to discharge, in the first place, their expenses ; and without making any further disposition, he ap- pointed his trustees executors. The representative of the testator's next of kin claimed the net produce from the sale of the lands, as part of his personal estate, of which no disposition was made. But Lord Eldon determined that since the only purpose expressed for converting the real into personal estate, was that of re-imbursing his trustees their expenses, so' much of the residue as arose from land was to be considered real estate, and belonged to the heir. Consistently with the principle of the last, Lord Rosslyn decided the prior case of Chitty v. Parker,(f) in which Mrs. Chitty devised her freehold estate to be sold, and all her property to be converted into money, using the expressions " which I give and devise as fol- lows." She then gave several legacies. But all the purposes of the will were satisfied without the necessity of resorting to the real es- tate, which was not sold. The next of kin claimed it as money un- disposed of in opposition to the heir. The Court, however, deter- mined in favour of the latter, upon the principle, that the conversion of the real estate into personal, was not absolute to all intents and purposes, so that the title of the heir to it was incontrovertible. So in Robinson v. Taylor,(g) the testator, after giving several legacies, devised the residue of his real and personal estates to his executors (hereinafter named, in trust, to sell the real estate and place the produce at interest, and to pay thereout, and out of the re- maining part of his personal property a particular annuity. He then gave other annuities and legacies, directing the remainder of the money which should be then at interest to continue so, and he merely disposed of it during the life of his cousin, Mary Stuart, for her benefit, and made no other bequest of the real proceeds. Upon a question between the heir and next of kin, to wjiom the surplus of the real estate belonged, Lord Thurlow determined in favour of the heir, upon the principle that the conversion of the land being merely for particular purposes, the residue resulted to the heir, as real estate, of which no disposition had been made. To the preceding cases that of Dixon v. Dawson(h} may be added. There the testatrix devised her real estates to trustees, upon, trust to be sold, and with the produce to pay and discharge all her just debts, funeral, and testamentary expenses and legacies, except her charita- ble legacies, which she directed to be paid out of her personal estate legally applicable for that purpose ; and the testatrix further direct- ed separate accounts to be kept of the proceeds of her real and of her personal estate legally applicable for charitable purposes ; declar- ing, that if the proceeds of her real esiate should be insufficient to pay the legacies directed to be paid therewith, the trustees should apply her personal estate in payment of such legacies. The testa- (cQ Ccltins v. Wakeman, 2 Ves. jun. 683. 18 Ves. 166. (e] 1 Ves. & Bea. 173. (/) 2 Ves. jun. 271. and see Euggins v. Yates, 9 Mod. 122, stated supra, p. 346. (#) 2 Bro.C. C. 588. 1 Ves. jun. 44. 5. C. (A) 2 Sim. & Stu. 327. SECT. IV.] into Personal Estate. 361 trix then added, that if any part of her personal estate remained, after satisfying debts and funeral expenses, and satisfying the charitable and other legacies, the trustees should pay and transfer such residue of her said estate and effects unto her relation Dr. William Craven. The testatrix left Philip Dixon her heir at law. The trustees sold all the real estates in P. Dixon's lifetime, but the testatrix's personal estate was more than sufficient to pay her funeral expenses, debts, and charitable legacies. Philip Dixon died, having appointed his three children his executors : William Dixon, the eldest son and heir at law, afterwards die'd, leaving Sarah the wife of John Slavin, his heir at law and personal "representative. One of the questions was, who was entitled to the produce of the real estate ? One point raised was, that when the testatrix made the produce of her real es- tate first applicable to the payment of her funeral expenses, debts, and legacies, except charitable legacies, her only purpose was to secure the payment of her .charitable legacies by means of relieving the personal estate ; and that when the charitable legacies were all paid, it was not her intention that the surplus of her personal should be relieved from the payment of her funeral expenses, debts, and legacies, at the expense of her real estate : but Sir John Leach V. C., after observing that that might probably have been her purpose, said that the Court could not controul her intention clearly express- ed by any conjecture, and he decided accordingly ; and further, that the personal representative of Philip Dixon, the heir at law, was en- titled to the surplus produce of the real estate, as mohey. Another point decided was, that the produce of the real estate, included that of leaseholds, and was primarily applicable in payment of the funeral expenses, debts, and legacies, not charitable, the words of the devise comprehending the leaseholds : the words were, "'All my messuages, dwelling houses, buildings, lands, tenements, hereditiments, and real estate, whatsoever and wheresoever, and of what nature or kind soever, not hereby otherwise disposed of." His Honour observed, that it might be stated on the authorities, that those general words unaided by other parts of the will, would not include chattel leases, but in that case he thought the .intention was to include them. SECT. IV. Right of the Heir or of the Devisees of Proceeds from a sale of land to lapsed Interests. Having discussed, in the preceding sections, the rights of the tes- tator's heir, devisee, residuary legatees, and next of kin; to the pro- duce of real estates directed to be sold, the subject which next pre- sents itself to notice, is, the title of those persons to so much' of the proceeds as lapses by the deaths of parties, or is undisposed of, from the illegality of the objects or purposes, or from the neglect of the devisor. The right of the heir or devisee of the estate to lapsed interests was treated of in the first section. (t) We shall, therefore, first, con- sider under the present title The right of the heir or the devisees of the proceeds from the sale of land after answering particular purposes, to such parts of those proceeds as lapse, or cannot take effect, whether the surplus produce (i) p. 351. 362 Conversion of Heal [Cn. XL only be given to the devisees, or whether it be bequeathed to them together and blended with the personal estate.' In consequence of the heir's titki to every interest in freehold lands not effectually disposed of, it seems ^o be settled, that although mo- ney, to arise from the sale of them, be devised to individuals distinct- ly from or together with the personal estate, after satisfaction of par- ticular trusts previously declared; yet, if any of those trusts lapse by the death of cestui'que trusts, or be void, as when given to cha- rities, or are for any reasons disappointed, the heir will be entitled to those interests, as so much real estate undisposed of; and for the following reasons : the conversion of the real estate into personal, was merely intended by the testator for the benefit of the several persons named in his will ; and as nothing is given to the devisees or legatees of the real proceeds,.except what remains after the prior purposes are answered, all those 1 purposes are excepted out of the bequest ; hence such of the trusts as lapse or cannot take effect, be- ing interests in lands of which no disposition is made, necessarily re- sult to the heir. The present differs from the case before consider- ed,^) of a beneficial devisee of lands, subject to particular charges., who is entitled to lapsed or disappointed interests, for there the de- visee is substituted in the place of the heirj the latter being wholly disinherited ; but in the instance now under consideration, the gift to the devisees or legatees is only of so much of the produce from the sale of the hinds, as remains after satisfaction of the particular trusts or purposes. In support of the above remarks we shall begin 1. With, producing an instance where the persons beneficially in- terested in the surplus money arising . from the sale of real estate, were adjudged n,ot to be entitled to so much pf it as consisted of a sum reserved for a' future disposition by the settler, but which failed by his neglect to dispose of it. The case alluded to is Emblyn v. Freeman,(l) in which Joshua Jlylsworth conveyed lands to trustees, upon trust to sell after his death, and to pay out of the proceeds a mortgage and other special- ty debts, also several sums of money to his relations and to charities ; and directed the remainder of the money to be divided among the plaintiffs, after payment by his trustees of 200Z. to such person 6r persons as he should appoint by a note under his hand. No appoint- ment was made of that sum, and it. was decreed, first by the Master of the Rolls, and afterwards by the Chancellor, that the 200/. result- ed and belonged to the heir at law. So in the City of London v. Garway,(m) Thomas Garway devi- sed lands to three persons in trust to sell and pay the proceeds to such persons as he, by' a subscribed paper, should appoint; but if he left none,- then in trust for his four nephews. The testator appoint- ed sums of money to several persons, which were far inferior to the value of the lands ; so that there was a considerable surplus of the money which arose from the sale, and which the Court' decreed to the heir as so much real estate, not passing by the residuary clause, and therefore undisposed of. In Hutcheson v. Hammond,(n) Mrs. Hutcheson, under a. power in (*) Sufira, p. 351. (I) Pre. Ch. 541. (m) 2 Vern. 571. '(") 3 Bro. C. C. 128. 143-147. SECT. IV.] into Personal Estate. 363 her marriage settlement, appointed to trustees certain real estates, in trust to sell after her decease, and place the produce in the funds, with a direction to pay the dividends to her husband for life ; and to dispose of the. principal after his death in discharging two lega- cies of 1500Z., another legacy of 500Z. and 10QOZ. to Grace Parker (who died before the testatrix,) and to pay the residue of the prin- cipal equally among the younger sons of William Hammond, with benefit of survivorship ; but if they all died before the same became payable, then to pay it to Peter Hammond, his executors, &c. One of the questions was between the residuary legatees of the money arising from the sale of the estate, and the heir. The former claimed the 1000/. as personal estate, in the character of particular residuary legatees of the fund, under the supposed apparent intention of the testatrix absolutely to convert and dispose of it as personalty ; while the latter claimed the lapsed interest as so much real estate undis- posed of. Buller, J. determined in favour of the heir; a decision afterwards confirmed by Lord Thurlow.(o) His Lordship considered the direction for sale of the land and the investment of its produce in the funds to be merely for the purpose of arrangement, and not with an intent to alter the rights of the par- ties, by an absolute conversion of the real into personal estate. The property, therefore, continuing land subject to the specific trusts de- clared of its produce, the residuary devisees of that produce could (as before observed) claim only what remained, after deducting so much as was necessary fully to discharge all those trusts. But one of them happened to lapse, and in consequence, part of the real pro- ceeds being undisposed of, the heir was the- only person who could make an effectual claim. His Lordship observed, that if a testator blend his real with his personal fund (which was not that case,) and make a residuary legatee, the appointment will carry all that is not disposed of. An observation perfectly correct, when understood in a qualified sense, as will afterwards appear; for the blending and disposition of the two estates is a material step towards effecting a total conversion of the real estate into personal ; but the circum- stance of itself is not sufficient for the purpose, as will be next shown. Such being the rule of equity in favour of the heir, as before de- tailed in regard to lapsed interests, when. the surplus from the sale of land is specifically and distinctly devised from him, the next sub- ject for enquiry is 2. The rights of residuary legatees of money arising from the sale of real estate after satisfaction of particular purposes, and of executors or next of kin of testators to partial lapsed interests, when the proceeds of the lands are blended with the personal estate. It is a clear rule in equity, where real estate is directed to be converted into personal, for an express purpose which fails, to con- sider, although the land has been sold, the disappointed interest as realty,^) and resulting to the heir, as .was noticed in considering the rights of mere residuary devisees of the produce of real estate to lapsed interests. The rule equally applies to cases where the real proceeds are blended and bequeathed with the personalty after (o) See also Jones v. Mitchell, 1 Sim. andStu. 290. (A) 1 Ves. & Bea. 174. 364 Conversion of Real [Cn. XL answering particular objects, and the context of the will affords no manifestation of the testator's intention absolutely to convert and dispose of liis real as personal estate; for then the conversion of the real and personal property being presumed to be made for the spe- cial purposes described, and to continue land in every, other re- spect, if one of them lapse or fail, it is manifest that the residuary legatees. cannot cla.im it; not as personal estate, because it does not fall within that description ; nor as land, since they were only in- tended to take so much of the proceeds as remained after the pre- viously declared purposes of their application were .satisfied. 'The executor is. excluded, since, if it were personal estate, he is pre- cluded from taking lapsed interests \(q] and with respect to the next of kin, their title is defective, as the disappointed bequest is no part of the personalty, but of the real property. (r) The heir, there- fore, is the only person entitled to it. The following cases are pro- duced in confirmation of the above remarks. In Cruse v. Barley,(s] William Banson being indebted by mort- gages, bonds, and simple contract, .devised his freehold and copy- hold lands to Barley; in trust to sell, and to discharge in the first place all his incumbrances and debts. He then bequeathed his personal estate to trie same trustees, to sell, and after payment of debts to apply the proceeds, and also the money to arise from sale of the real estates, among his (the testator's five children ; viz. to his eldest son Christopher 2001. at the age of twenty-one, and all the residue thereof among his four younger children at the same age, with benefit of survivorship. Christopher died before twenty- one, and what was to become of the 2001. was the question *? Sir Joseph Jekyll was of opinion, that the residuary legatees were not entitled to that sum, as nothing was given to them but the re- mainder after the deduction of the 2001.; and he finally determined, after looking into precedents, that the money belonged to the tes- tator's heir, as so much real estate undisposed of. Similar to the last case is Gravenor v. Hallum,(t) in which Robert Goldsbury devised to his executors his freehold dwelling house (subject to bequests to charitable uses, void by the Statute of Mort- mainj, and also all other his real estates, in trust to sell, directing the rents, till sale, and the residue of his personal estate, to be ap- plied, in the first place in payment of his debts, funeral expenses, and the costs of his executors and trustees ; and in the- next place, in discharge of his legacies, which were numerous. He then gave the residue, of the money arising from sale of his real estates, and their rents, till sold, and of his personal estate, after such deduc- tions as aforesaid, to be divided and paid as mentioned in his will. The question was, whether the heir or the residuary legatees were entitled to so much of the real proceeds as were given to charities, and consequently undisposed of. And Lord Camden decided for the heir, upon the principle before stated; observing, that he rest- ed his opinion altogether upon the intention of the testator, and the strong reluctance in the Court to disinherit an heir at law. The next is a very strong case in favour of the heir against the (?) 1 Atk. 469. r !8 Ves. 254, 255. (r) 18 Ves. 165. 1 Ves. & Bea. 173. () 3 P. Will. 20. 1 Bro. C. C. 512. (0 Ambl. 643. SECT. IV.] into Personal Estate. 365 claims of the residuary legatees of the personalty, and is probably such a decision as would 1 present be disapproved of;(w) for, al- though the testator declared that the proceeds from the sale of his real estate should be considered as part of his personal estate, sub- jecting both of them to the payment of legacies, and disposing of his residuary personal estate ; yet it was determined, that a sum of 1000Z. reserved by the testator for his future appointment, of which he made none, did not fall into the residue, as part of the personal es- tate, but resulted to the heir. The case alluded to is Collins v. Wakeman,(x) in which the tes- tator devised real estates to one Collins in trust to sell, declaring the produce to be considered " as part of his personal estate ; and thereout and out of his personal property he gave several legacies, some to his next of kin, and one to his heir, John Reeve. He then devised a copyhold estate to the same trustee to sell, ordering the proceeds'" to be considered, from the period of sale, as other part of his personal estate," to be applied in discharge of several lega- cies. Besides those legacies he gave others " out of his said trust monies and personal estate," and bequeathed to Collins 1000Z. to be disposed of according to any written instructions that he (the testa- tor) might leave. He then gave his residuary personal estate to Mary Wakeman absolutely, and died, without disposing of the 1000Z. which was claimed as personalty by the residuary legatees and next of kin. But Lord Rosslyn was of opinion that the money belonged to the heir as so much land undisposed of.(y) A testator however having the power, as before observed, (z} to change the nature of his real estate into personal to all intents and purposes, and to dispose of it as personalty, so as to prevent a re- sulting trust to the heir, it follows, that if he show an intention to do so, and make the disposition, his residuary legatee of the personal fund will be entitled to the benefit of all interests affecting the pro- ceeds from the real estate which lapse or are disappointed. An instance of such a conversion of the real property occurred in the case of Kennell v. dbbott,(a) where Mrs. Hickman, erroneously supposing herself to have been lawfully married to a second husband Edward Lovell, but who had a wife by a prior marriage then living, bequeathed 300J. stock to her niece Betty Kennell, for life, and to her nephew Martin Togood, leasehold property. She then gave a copyhold estate to her brother Thomas Abbott, in trust to sell, and pay out of the purchase money legacies to particular relatives, also one legacy of 1501. " to her husband Edward Lovell" which failed in consequence of his not being her lawful husband. The testatrix, after giving a leasehold estate to her great niece Catharine Kennell, bequeathed all her household goods, plate, furniture, and stock in husbandry, to Thomas Abbott, in trust to sell, and out of the pro- duce to insert the life of her great niece in the leasehold estate. She then bequeathed her wearing apparel and linen to Betty Ken- (w) See Att. Gen. v. Holford, 1 Price, 426. (x} 2 Ves. jun. 683, acknowledged by Sir W. Grant in Hoofier v. Goodwin, 18 Ves. 166. 1 Jacob, 375. (y) See also Hill v. Cock, 1 Ves. & Bea. 173. stated su/ira, p. 360. (z) Ante, p. 359. (a) 4 Ves. 802-810. VOL. i. 3 A 366 Conversion of Real [On. XL nell, and gave the residue of the money arising from the sale of the copyhold estate, household goods, and rniture, and the residue of her personal estate whatsoever and wheresoever, and which she had power to dispose of, to her niece Betty Kennell, subject to debts and funeral expenses, and appointed her sole executrix. The disap- pointed legacy of 1501. was claimed by Betty Kennell, the residuary legatee against the heir, upon the principle of its appearing from the will, that the testatrix meant a thorough conversion of the copy- hold into personal estate. And of that opinion was Lord Alvanley, M. R., who decreed in her favour, upon the authorities of Mallabar v. Mallabar,(b) and Durour v. Motteux. His Honour remarked, in the last case, that the testatrix had be- queathed several particular parts of her estate, stock, leasehold estates, household goods, furniture, and other articles; also the copy- hold estate which she ordered to be sold in all events, and the lega- cies to be paid out of the purchase money. Then came the resi- duary disposition. Under these circumstances, he thought the real estate was made personal to all intents and purposes ; and that such was the testatrix's intention ; since, she taking a retrospective view of what she had done, and meaning to give every thing not disposed of, inserted the residuary clause ; so that, the real proceeds, forming part of the personal estate entitled the residuary legatee not only to every thing not expressly disposed of, but also to all interests lapsed, and to each part of the personal fund by any means not effectually given. To which may be added the inference deducible from the circumstance of Betty KenneU being named executrix as well as re- siduary legatee ; the effect of which is detailed in Lord TalboVs judgment in the case of Mallabar v. Mallabar, stated in a preced- ing page.(c) But the case of Durour \. Motteux,(d") does not perhaps furnish so strong an indication of intention as the last. There Mr. Motteux devised all his real estates to trustees to sell, and to dispose of the whole, with his personal estate to pay debts and legacies and to per- form his will. He gave legacies, and among them 1200Z. which could not take effect, as being given to a charity and directed to be laid out in the purchase of land. The remainder of the lands were also appropriated to charitable purposes ; and the testator directed his trustees to place out all the residue of his estate and interest thereon upon securities, and divide among several persons. To whom the 1200J. belonged was a question between the heir and residuary legatees. And Lord Hardwicke determined in favour of the latter, being of opinion that the money to arise from the sale of the real estate was, and was intended by the testator to be, converted into personal ; his Lordship observing that the intent to include the whole in the residue plainly appeared from the testator's description of all his personal estate, so that the whole of the real was to be con- sidered as personal property. The last is a case very imperfectly reported, and it may be rea- sonably presumed that.so acute and able a judge as Lord Hardwicke, (b) Forrest, 78. ( c ) Sufira, p. 356. (d) 1 Ves. sen. 321, stated from the Register Book, 1 Sim. & Stu. 292, Jones v. Mitchell. SECT. IV.] into Personal Estate. 367. would not have disinherited the heir upon the sole ground of the testator in disposing of residuary property having made use of the word all, as the report of his judgment seems to imply. Doubtless there were Bother circumstances that influenced his opinion, which are not expressed in the printed narrative. Sir William Grant, in commenting upon this case, spoke to the following effect: "From the little Lord Hardwicke is reported to have said, it is difficult to ascertain from what expressions he inferred, that by the description of all his personal estate, the testator meant to include everft thing in the residue. If any stress is to be laid upon the word all, it does not occur here ; but that the decision is generally accounted for by the particular manner in which the sale was directed, and the cir- cumstance of the testator having blended the real and personal estates in one gift to trustees, to sell the whole with ' his personal estate, &c."(e) Having attempted to ascertain the persons to whom belong par- tial interests, affecting lands, that lapse or are disappointed, the next subject of inquiry is, 3. The rights of surviving devisees or legatees of the produce arising from the sale of real estate, whether of the specific proceeds only, or as residuary legatee of the personalty, to shares that lapse by the death of their companions. FIRST, when the devisees or legatees are made joint-tenants. In the last chapter (/) it was shown, that if property be given to several persons in joint tenancy, and one of them die before the tes- tator, his intended share will belong to the survivors, upon the prin- ciple, that each legatee or devisee is a taker of the entire fund, and not of distinct parts of it. Hence it follows, that if the proceeds from the sale of land be devised to A. and B. either specifically, or as part of the residuary personal estate, and A. die before the testa- tor, his share will not lapse to the heir or next of kin of the devisor, but belong to B.(g) This, however, is not so, when the devisees or legatees take their interests in severally without benefit of survivor- ship, which happens SECONDLY. When the produce from land directed to be sold is devised to two or more persons as mere tenants in common, either specifically or as part of the residuary personal estate. The princi- pal of the distinction, with the exceptions to it, are stated in the fourth section of the last chapter. An authority upon this subject is Digby v. Legard,(h) in which E. B. devised her real and personal estates to trustees in trust to sell, to discharge debts and legacies, and to pay the residue to five persons in equal shares. One of them died before the testatrix, and Lord Bathurst held at the hearing of the cause, and afterwards upon a rehearing, that the share of the deceased residuary legatee in the real estate resulted to the testatrix's heir. The last case was approved of in the leading authority of Jlckroyd v. Smithson.(i) The testator, after bequeathing several general le- gacies, gave all his real and all his personal estate to two persons, in (0 1 Ves. & Bea. 417. and see 1 Pro. C. C. 500. (/) Sect. 4. f) See cases collected in the section last referred to. z) 3 P. Will. 22. in notis, Ed. by Cox, 18 Ves, 166. (f) 1 Bro. C. C. 503. 368 Conversion of Real [Cn. IX. trust to sell and convert such two estates into money, and to pay out of the proceeds of the sale all his debts, legacies, and funeral ex- penses, and the charges of proving his will ; and after such payments, and retaining 50/. each for their trouble, in trust, out of such monies as aforesaid, to pay all legacies and annuities given by his will ; and if there remained a surplus in the hands of his trustees, as he con- ceived would be the case, and to a considerable amount, he gave it to his several legatees (naming them) " in proportion to their several and respective legacies," with a direction for payment within six months after the residue could be ascertained. By this bequest the residuary legatees were entitled as tenants in common. Two of them died before the testator, whose shares were claimed by their next of kin, the testator's heir, and also the surviving residuary lega- tees; and Sir* Thomas Sewell, M. R., decided in favour of the last. But the next of kin, being dissatisfied, appealed from the decree, and the cause was reheard before Lord Thurlow, who determined, in consequence of the celebrated argument of Mr. Scott (now Earl of Eldon,) that the two shares lapsed, and resulted to the heir and next of kin ; i. e. such parts as were real produce to the heir, and such as were personal to the next of kin. The foundation upon which his Lordship's opinion rested in re- gard to the real proceeds, seems to have been, first, that the claims of the surviving residuary legatees could not be supported, since they, being tenants in common, were only entitled to the several shares bequeathed to them. Secondly, that the title next of kin was equally defective ; as the conversion of the real into personal estate being merely to answer the special purposes, and to be distributed among particular persons, so much of the real proceeds as were not required for any of those objects retained the quality of land j whence it followed, that as the right of the next of kin was confined to personal property undisposed of, the lapse of the two residuary shares, so far as they consisted of real estate, could not result or be- long to them. And thirdly, that as there was no person who could claim such parts of those shares as were the produce of the land, they necessarily resulted to the heir. The last case was followed by Williams v. Coade,(k) in which Sir William Grant made a similar decree. It is to be noticed that the two last-stated authorities were cases of lapse by death before the testator. SECT. V. Right of personal representatives of devisee or lega- tee of real proceeds in preference to testator's heir. Suppose the residuary legatee in the first case had survived the testatrix, and died immediately afterwards, or before a sale of the real estate ; or, that the two residuary legatees in the second had died within the six months after the surplus was ascertained ; it is presumed, that no lapse would have taken place, and that the per- sonal representatives of the legatees would have been entitled to the shares as money, since the land was converted into personalty to the extent of being applied and distributed in the manner, and for the objections and the purposes mentioned in the wills.(Z) (*) 10 Ves, 500. (/) See 1 Price, 483. SECT. VI.] into Personal Estate. 369 For the same reason, when real estate is converted and disposed of as personal to all intents and purposes, and is so given that the residuary legatee takes a vested interest before his death ; although he die before the period of payment arrives (as during the continu- ance of a tenancy for life,) his personal representative, and not the heir of the testator, will be entitled to it as part of the personal estate bequeathed to him. Such an instance occurred in Fletcher v. Ashburner,(m) deter- mined by Sir Thomas SewelL In that case, John Fletcher devised his burgage houses and free rents in Kendall, and all his personal estate, to trustees, to sell so much as should be sufficient to pay his debts, and to permit his wife Jlgnes to enjoy the residue for life, and then to sell the same, and pay the proceeds to his children William and Mary, equally, after deducting expenses and half a guinea to each trustee for their trouble. But if his wife married again, the trustees were immediately to sell all his estate and effects given to her for life, and to pay the remainder of the proceeds, after making the above deductions, to his said wife and two children in equal proportions, with a cross limitation of the share to the surviving 'child, upon the death of either before his or her proportion became due. The wife continued a widow. William, the testator's heir, and a devisee, died before the wife, after attaining twenty-one ; and Mary, after attaining that age, died unmarried before her mother and brother. The widow was the sole next of kin of William, who survived his sister, and was entitled to their shares of the money pro- duced from a sale of the real estate, if it were to be considered as personal ; but the heir of the testator, who was also heir of William., insisted that he was entitled to them, as so much realty undisposed of. And Sir Thomas Sewell,M. R., determined, that this was a case of absolute conversion of the real into personal estate ; that William the son had the whole beneficial title vested in him as money, sub- ject to his mother's estate for life or during widowhood ; and that as she survived him, and was his sole next of kin, the interest that vested in him became vested in her, which entitled her personal re- presentative to the whole fund as money. We shall next consider SECT. VI. When produce from sale of land resulting to Testa- tor's Heir, is to be considered land or money. The nature and quality of the interest which heir of the testator takes in the real property resulting to him, i. e. whether as land or money ; for if as land, and he die intestate, it will descend to his heir ; but if as money, it will pass by his will, or go to his next of kin upon his intestacy. From what has been detailed in the preceding pages of this chap- ter, the following conclusions will probably be found correct ; and are submitted to the reader's consideration under the ensuing ar- rangement : (m) 1 Bro. C. C. 503. and see Brown v. Bigg, 7 Ves. 279-287. 5. P. also Van v. Barnett, 19 Ves, 102-111. Alt. Gen. v. Holford, 1 Price, 483, stated infra, p. 173. 370 Conversion of Real [Cn. IX. 1. When conversion of the real estate is directed for particular purposes, and there is no disposition of the surplus. Where a testator devises his real estate in trust to be sold to pay debts and legacies, and dies intestate as to the excess, his heir will take it as land ; for there being neither intention to change the na- ture of the property, nor any disposition of it beyond those purposes, it necessarily retains its real quality. (n) So also, if any of the legacies lapse, they will result to the heir as land ; for the conversion of the real estate being made for specific objects only, and not out and out, the land retains its primitive nature until called upon to answer the particular purposes to which it was subjected by the testator ; if, then, any of them fail, there is no ne- cessity for a sale of so much of the real property, which continuing land, as before observed, results in that quality to the heir.(o) 2. When the surplus of lands directed to be sold for particular purposes is disposed of, either alone or with personal estate. If the residue of the real proceeds be so given, as to show the testator merely intended the residuary devisee or legatee to make what remained after satisfaction of prior trusts or charges, and any of them lapse or fail, they will result to the heir as land, for the reasons before noticed, which entitle him to lapsed interests, where no disposition is made of the residuary real property Qo). And when the surplus real proceeds are devised to one person, who dies before the testator, and there is no intention to be col- lected from the will that the devisor meant a complete conversion of his real into personal estate, and to dispose of the real pro- duce as personalty, the lapsed residuary real proceeds will result to the heir as land, upon the same reasoning that a court of equity gives him the like produce where no disposition is made of it. But when the money arising from the sale of freehold lands, after answering particular purposes, is given to persons as tenants in common, and one of them dies during the life of the devisor, it has been decided that the heir and surviving devisees take their shares as money, upon the following presumption; that the motive of the testator, in making the disposition, was for the convenient division of the property among the devisees, a purpose still con- tinuing notwithstanding the substitution of the heir in the place of the deceased devisee. Hence, if the net real proceeds were given to A. and B., as tenants in common, and A. died before the tes- tator, the heir of the testator and B. would take the whole as money (q). The above presumption however would fail, if both A. and B. died during the life of the devisor, (events which would occasion a total lapse of the residuary real proceeds;) because the conve- nience of division no longer existing, and no sale being necessary for the accommodation of Jl. and B., the case becomes simply that of a conversion of lands to pay debts, &c. without any disposition being made of the surplus, which we have seen will result to the heir as land (r). (n) 3 Bro. C. C. 143. 16 Ves. 191. (o) 4 Madd. 492. f/i) Pre. Chan. 541. 1 Ves. & Bea. 174. 3 P. Will, 20-22. 4 Madd. 492. (7) 4 Madd. 493. (r) 1 Bro. C. C. 509. 10 Ves. 500-505. SECT. VI.] into Personal Estate. 371 The decision of Sir John Leach, V. C., in Smith v. Claxton(s), appears to have been founded upon the distinctions before men- tioned. There, Thomas Smith bequeathed his residuary personal estate, and devised a part of his freehold property in S. to trustees, in trust to sell both funds, and to pay his debts, funeral expenses, and legacies out of the produce, and the residue to his wife. He then gave the remainder of his lands in S. to trustees, to pay the rents to his wife for life, remainder to his son and heir Thomas for life, and to sell the same after his death, and pay the proceeds to Robert (son of Thomas), and all the other children of Thomas, in equal shares; their interests to be vested at the ages of twenty- one; but if all of them died before taking vested interests, the money to arise from the sale was to be in trust for the testator's sons Joseph and Robert. The testator also gave to the same trus- tees other freehold and some leasehold estates, in trust, after dis- charging an annuity, to pay the rents to his son Robert for life, and then to sell and pay the produce equally among Robert's chil- dren (if any), but if none, to hold the money in trust for the testa- tor's sons Thomas and Joseph in equal shares. The personal estate being sufficient to satisfy the debts, &c. so as to render a sale of any part of the freehold lands unnecessary; three questions arose, and were decided in consequence of resulting trusts to the heir oc- casioned by the deaths of the testator's wife, his son Robert, and his grandson Robert the son of Thomas, during the life of the tes- tator. The first of those questions was, whether that part of the freehold estates in S., the ultimate proceeds from the sale of which were devised to the wife, resulted to the heir as land or money'? And -the Court held (upon the principle before stated in the sup- posed case of a devise to one person of the surplus real produce which lapsed by his death) that the heir took as land so much of the real proceeds as were intended for the wife. With respect to the second question, viz. in what quality the remainder of the real estate in S. resulted to the heir first by the death of Robert the grandson and only child of Thomas, and fc then by the death of Robert son of the testator to whom and Joseph the produce from a sale was ultimately devised in common, it was decided, upon the reasoning before stated as applicable to such a *case (t ), that the heir took Robert's (the son's) intended share as money. The like decision was made on the third question that arose upon the devise of real proceeds to Thomas and Joseph in common (Thomas hav- ing died without children, after surviving the devisor) and which was, in what quality Thomas as heir took the moiety of those proceeds ; and the Court declared, upon the principle it decided the second question, that the share belonged to him as money (w). In the late case of Dixon v. Dawson, Sir John Leach, V. C. ob- served, " I adhere to the principles which I stated in the case of Smith v. Claxton, that where the whole land is properly sold by the trustees, and there is only a partial disposition of the produce of the Js) 4 Madd. 484. 493, (0 Ante, p. 370. w) The other cases upon this subject, are Hewitt v. Wright, 1 Bro. C. C. 86. ight v. Wright, 16 Ves. 188. Jones v, Mitchell, ISim. & Stu. 2.90. Dixon v. Dawson, 2 Sim. & Slu. 340. 372 Conversion of Real [Cn. IX. sale, there the surplus belongs to the heir as money, and not as land ;" and his Honour declared that the surplus in the case before him, therefore, belonged to the personal representative of Philip Dixon, the heir. 3. It was an observation of the Court in the case of Smith v. Claxton, that the heir and Joseph might have agreed to take the land in its primitive and natural state : a right of which there is no doubt. The effects of such their election would have been to discharge the land from the nature of personalty impressed upon it by the opera- tion of the will; and the share of each would have descended to his heir or passed by his will as real estate. (x) Slight circumstances will be sufficient to effectuate the above purpose, and notwithstand- ing the dictum of Lord Hardwicke to the contrary, (?/) even parol declarations ;() yet, trivial as they may be, it is necessary that they clearly indicate the intention of the parties to accept and enjoy the fund as real property. (a) If, then, lands be devised to trustees to sell and divide the proceeds between A. and B., and the heir of the testator become entitled to #.'* share by lapse, and the heir and B. do no other act, expressive of their intention to take their shares as realty, but by entering upon and occupying the property, the case of Kirkman v. Miles(b) purports to be an authority that the land will be the personal estate of the heir and B. SECT. VII. When the devisees of the real produce take it as land or money. What has been said, in regard to the testator's heir and surviving devisees, equally applies to instances where there is no lapse, but the devisees of the real produce survive the devisor ; and the case of Kirkman v. Miles is one of that description. There the devisees of the money to arise from the sale of freehold property entered and continued in possession of the estate for two years ; and Sir William Grant was of opinion, that the period was too short to pre- sume an election.(c) In Van v. Barnett,(d) Lord Eldon remarked that it was not com- petent for an infant to make election. And it appears, from the case of Oldham v. Hughes,(e] that, with- out the interposition of a court of equity, coverture is a disability to a woman's electing to change the nature of her property. Neither can a lunatic make such election. (/) When a residuary legatee takes the proceeds from the sale of lands as money, under the operation of the will, his election to take the estate as land will not prejudice the right of the crown to the legacy ( .r) 3 Atk. 447. 1 Bro. C. C. 236. 8 Ves. 236. 2 Meriv. 531. (y ) Sradish v. Gee, Amb. 229. (z) 2 P. Will. 174. 1 Bro. C. C. 236. 8 Ves. 236. 19 Ves. 109. 7 Bro. Parl. Ca. 557. (a) 12 Ves. T65. 2 Meriv. 521-531. 7 Bro. Parl. Ca. 558. 8vo. ed. (6) 13 Ves. 338. (c) Upon this species of presumption see observations, 7 Pro. Parl. Ca. 559. 8vo. ed. (d) 19 Ves. 109. See also Ambl. 241. Earlom v. Sounders Carr v. Ellison, 2 Bro. C. C. 55. (e) 2 Atk. 453. See also 1 Ves. sen. Cunningham v. Moody, 174. (/) Ashby v. Palmer, 1 Meriv. 296. SECT. VII.] into Personal Estate. 373 duty imposed by the 55 Geo. 3, ch. 184, sched. 3, upon the clear re- sidue of money to arise from the sale of real estates. That point was settled in the Atterney General v. Holford,(g) by the Court of Exchequer. George Bogg devised and bequeathed to trustees all his estate, freehold, leasehold, or otherwise denominated, consisting in part of a share in the New River water-works (which was freehold,) upon trust to make an immediate sale ; and he de- clared that the profits should be deemed part of the residue of his estate thereafter disposed of, or go in aid (if necessary) of the rest of his property in discharge of legacies; and after bequeathing certain legacies, he gave the residue of his estate and effects, whatsoever and wheresoever, to Josiah Holford, his heirs, executors, &c. The personal estate was more than sufficient to pay the debts and lega- cies. And the question was, whether, as Holford chose to take the New River share as realty, his election should defeat the legacy duty? And the Court decided in the negative, upon the principle that the fund was in equity absolutely converted into personal estate by the will ; and that, although Holford might prevent a sale by elect- ing to take the share as it was, yet, it being money, which would go to his personal representatives if no such election were made, the ex- ercise of that power could not be permitted to disappoint the duty which would attach upon the proceeds received by Holford from a sale of the property, which, so far as regarded the duty, ought to be considered as made. CHAPTER X. Of vested Legacies payable out of the Personal Estate. IT will be attempted in this chapter to ascertain the circumstances, under which a legacy will be vested or contingent, i. e. when the in- terest of the legatee will be so fixed" as to be transmissible to his personal representative, although he die 'before the period arrives for payment of the money ; or when, from the terms of the be- quest, or from the uncertainty of the event, upon which the legacy is made payable, no immediate interest passes to the legatee, but his title to the legacy depends upon his being in a condition to re- ceive it when due. In discussing these subjects, the following arrangement will be pursued : SECT. I. When the gift of a Legacy is immediate, and no time appointed for payment of it. SECT. II. When the gift of the Legacy is immediate, and the payment of it postponed to a future period, whether definite or uncertain. 1 . When the legacy will be vested As when directed to be paid at twenty-one, Or At the end of a particular term, Or So soon as debts are paid, Or J) 1 Price, 426. 435. VOL. T. 374 Of vested Legacies. [Cn. X. So soon as the executors shall possess sufficient as- sets,- Or So soon as particular lands are sold, Or So soon as the personal residue shall be laid out in the purchase of lands. 2. When not vested. SECT. III. Where there is no immediate express gift of the Legacy distinct from the time appointed for its payment. FIRST. When contingent from the effect of conditional words. SECOND. When vested in consequence of those words not having been used by testators in a con- ditional sense. 1. When the legacy is given to a trustee, parent, or guardian for the legatee at a particular time and to be managed or applied for his mainte- nance or benefit, Or 2. Where the intermediate interest is not given for the use or benefit of the legatee, but to another person, During the legatees minority, Or Until particular purposes arefulfilled, Or During life ; and then IN REMAINDER to the legatee. 3. Exceptions to the general rule of a remainder and particular interest, or estate vesting at the same time, upon the intention of testators. SECT. IV. Of the vesting in interest and transmissibility of contingent executory Bequests. SECT. V. Effect upon the vesting and devesting of Legacies, when they are subjected to a limitation over on the happening of a particular event. And 1. Where the gift is immediate, with a limitation to " survivors" upon the death of any of the legatees under twenty-one, fyc. 2. Where the event, upon which a legacy is given over, is so imperfectly conceived and expressed, as to render the testator's intention mere conjecture or impracticable to perform. 3.- Where the limitation over is, if the legatee die before receipt of the money, or before the sale of an estate. 4. Where the limitation over is, in case of the death of the legatee generally. 5' Where the limitation over is, "in case the legatee die unmarried, and without having children or issue." 6. When the contingencies, upon which legacies are SECT. I.] payable out of Personal Estate. 375 limited over, were held not to have happened, so as to divest the interests "first given ; And 7. Construction of the words "payable" fyc. in re- ference to the event introducing a limitaton over of legacies or portions, as, if any of the legatees die before their shares become payable, or payable, assignable, and transferable. FIRST, Of Legacies. SECOND. Of Portions. SECT. VI. Effect of POWERS OF APPOINTMENT on the vest- ing and devesting of Legacies and Portions. 1. Where the power is merely to ascertain the shares each legatee is to take. 2. Where the gift depends upon an execution of the power. SECT. VII. As to vesting generally. 1 . Instances of vested interests determining with the lives of the legatees, and not transmissible. 2. When the word " survivors" construed the same as " others" in favour of vesting. 3. Where a legacy is directed to be sunk in the pur- chase of an annuity. 4. When a legacy is given generally "to be at the dis- posal of the legatee." 5. Where a legacy is expressed to be given to answer a particular purpose for the benefit of the legatee, which purpose is disappointed and cannot take effect. SECT. I. When the gift of a Legacy is immediate, and no time appointed for payment of it. In bequests to individuals, without specifying the periods when the money is to be received, it is payable at the end of a year next after the testator's death. This allowance to executors and adminis- trators is merely for convenience, in order that the debts, entitled to a priority to legacies, may be ascertained, and the personal re- presentatives of the testator may be acquainted with the amount of the assets, so as to be able to make a proper distribution of them. This delay of payment being adopted as a necessary and convenient arrangement for the due administration of the estate, and for no other purpose, will not prevent the legacies from vesting at the death of the testator. (a) Hence, if a fund be given to the children of A. those living when the testator died will take vested interests in it, which will entitle the personal representatives of such of them as happen to die within the year after the testator's decease to their shares. The cases upon this subject are collected in the second chapter of this work, which treats of the "Description of Legatees," (a) 10 Ves. 13. 376 Of vested Legacies [Cn. X. and the periods when they are required to be in esse for the purpose of taking under the description. (6) SECT. II. When the bequest is immediate, and payment of the legacy is alone postponed. Courts of equity not being possessed of exclusive jurisdiction in testamentary matters, but the Ecclesiastical Court holding a con- currency with them on subjects of this nature, have, in order to pre- serve uniformity of decision, adopted some of the rules of the latter tribunal, which were taken or borrowed from the Roman law. In consequence of this adoption, courts of equity have established a positive rule of construction. 1 . That when a legacy is given to a person to be paid or payable at or when he shall attain the age of twenty-one, or at a future defi- nite period, the interest in the legacy shall be considered to be vested in the legatee immediately upon the testator's death, as debitum in pr&senti solvendum in futuro, the time being only annexed to the payment, and not the gift of the legacy. Hence it appears, that if the legatee happen to die before the payment arrives, his assignee or personal representative will be entitled to the legacy. (c) Thus in Bolger v. Mackell,(d") the testatrix gave her residuary es- tate to Catherine, the daughter of James Winter, and to the legiti- mate children of her (the testatrix's) brothers John and James Snowden, in equal shares, the proportions of sons with the interest or accumulations, to be paid at their ages of twenty-one, and those of daughters at twenty-one or marriage, after deducting what might have been expended in their maintenance or advancement in the world. John Snowden had no issue, but James died leaving two sons, neither of whom attained the age of twenty-one. And the question was, whether, notwithstanding that circumstance, two- thirds of the residue vested in them, so as to be transmissible to their legal personal representatives. And Lord Rosslyn was of opinion, that the two sons took vested interests, remarking, that the present was a mere bequest of the residue of personal estate, payable at twenty-one, so that the rule as to vesting must take place, which was not prevented by the addition of a direction that maintenance should be deducted.(e) So in Jackson v. Jackson,(f) a testator bequeathed to his son R. 400Z. " to be paid to him at the end of one year next after his (the testator's) death; and the further sum of 100Z. at the death of his (R.'s] mother." JR. having died before his mother, the question was, whether he took a vested interest in the lOOi. 1 ? And Lord Hard- wicke determined in the affirmative, observing, that the legacy of that sum was plainly vested, and the time of payment only postponed ; for the former words "to be paid," were to be carried on, as they would clearly be, if turned into any other language. (6) ^wte.Chap. II. sect. 1. p. 59. 1 Ball. & Beat. 459. 2 Atk. 122. 2 Ves. sen. 209. 1 Br6. C. C. 532, in notis. 2 Bro. C. C. 658. and 2 Cox, 190. 1 Dick, 344. (c) In the Civil Code we find the rule laid down in these words: "Ex his verbis, do, lego, ^Elex Severinae filex mex et secundse decem, quse legata accipere debe- bit, cum ad legitimum statum pervenerit ; non conditio fidei commisso vel legata inserta ; sed petito in tempus legitimise dilata videtur." Lib. 6. tit. 53. sect. 5. (rf) 5 Ves. 509. See also Stafileton v. Cheales, Pre. Ch. 317. 5. P. (0 Vide 13 Ves. 113. (/) i Ves. sen. 217 SECT. II.] payable out of Personal Estate, 377 Also in Sidney v. Vaughan,(g] Mrs. Evans bequeathed to Edward Vaughan 100Z. to be paid to him within six months after he should have fully served out his apprenticeship, to which he was then bound. Edward, instead of serving his time, ran away from his master, and died intestate after the period of his apprenticeship expired. The legacy was claimed by his administratrix, upon the ground that Ed- ward took a vested interest in it from the death of the testatrix, as the gift and time of payment were distinct. And of this opinion was the Court of Chancery of Great Sessions for the counties of Glamorgan, &c. and decreed the legacy with interest, to the ad- ministratrix, from the end of six months after the expiration of the term of Edward's apprenticeship ; a decree which was confirmed by the House of Lords. The construction will be the same, if the payment of the legacies be expressly postponed until the testator's debts be discharged ; for in this there is no contingency, the time is easily ascertained; and the direction is no more than what the law would have ordered without it, since legacies are only payable after the satisfaction of debts, (h) So, if the testator declare that the legacies are not to be paid or enjoyed until the executors have realized his estate. Here, again, no inference arises that the legacies were not to vest until realization of the property, but the time of payment or enjoyment alone is re- ferred to ; which is a necessary event, capable of being reduced to certainty. A court of equity has said, it is the best general con- struction (for there may be exceptions as shown afterward) to con- sider the interests vested and in hand, though strictly, not collected for the purpose of enjoyment, as between particular interests and the capital, and the Court will not conjecture in favour of an inten- tion against- the general rule.(t) Accordingly in Gaskell v. Harman,(k} Lord Eldon thought, in opposition to Sir William Grant, that the will did not afford suf- ficiently clear evidence of the testator's intention to postpone the vesting of -the bequests until the property was collected and re- ceived. In Stuart v. Bruere (I), the intention to postpone the vesting till a sale of the estate was doubtful, for, although there were expres- sions pointing to an accumulation of the rents until the sale ; yet, upon the whole, it was ambiguous whether the intention was to postpone the enjoyment of the tenant for life of the produce to in- crease for the benefit of the remainder-man of the capital, of which, at some time or other, the former was to have the enjoyment. That time, however, was not clearly expressed. There was nothing, therefore, to controul the rule, " that what is directed to be done is to be considered as done ;" so that the tenant for life was held entitled from the decree (m). The same observations apply to the cases of Entwistle v. Mark- land (n), and Sitwell v. Bernard (o), where the residue of personal property was directed to be laid out in the purchase of real estates, (,) 2 Bro. Parl. Ca. 254. 8vo. ed. (A) Seem/ra, p. 380. (2) 11 Ves. 498. (k} 6 Ves. 159. 11 Ves. 489. (/) 6 Ves. 529. innotis, and see Faulkener v. Hollingsivorth, stated 8 Ves. 558. (m) 8 Ves. 557. (n) 6 Ves. 528. in notis. (o) Ibid. 522. 378 Of vested Legacies [Cn. X. to be settled, &c. In neither of those cases the testator expressed in plain and direct terms what was his intention. Tn the latter case, a considerable difference arose from the direction for accu- mulation, and to invest the produce in the purchase of lands to be settled. But, upon the whole will, it was very doubtful, whether the words were inserted with any deliberate purpose of fixing the period at which the enjoyment was to commence, but postponing it till all the personal estate could be called in and laid out. Such a doubtful construction was therefore insufficient to controul the rule of immediate vesting ; and in each case the interests were holden to have vested at the death of the testator (j?) ; Lord Eldon observing in the latter, he would struggle for any construction rather than adopt that, which not from dilatoriness of the trustees, but only from circumstances to which probably the testator did not advert, had a tendency wholly to disappoint his intention as to the beneficial enjoyment (9). Such is the rule of construction, when an immediate bequest is made to one or more persons, and the payment or enjoyment of it is postponed to a future definite period ; the gift being distinct from the time appointed for the legatee io receive his legacy. But this rule is always subservient to the intention of testators. 2. If, therefore, upon sound construction of a will, it appear that the testator meant the time of payment to be the period at which a legacy should vest, although it be given in terms of immediate be- quest, with a direction for payment to the legatee at twenty-one, or other definite period, and so far within the rule of vesting, which has been considered ; yet the case will form an exception to such rule, and the legatees living to attain the age of maturity, or other period of payment is of the essence of the bequest; for, if he pre- viously die, he will have taken no interest in the legacy to transmit to his personal representative. The following case is an illustration of the above proposition. In Mackell v. Winter (r*), Mrs. Snoivden bequeathed her residua- ry estate to her two grand-sons, and to her grand-daughter, Cathe- rine Winter, in equal proportions ; the shares of grand-sons, with the interest or accumulations, after deducting maintenance and education, to be paid to them at their ages of twenty-one ; and the share of her grand-daughter, with the interest or accumulation; to be paid to her at twenty-one, or marriage. The testatrix empow- ered her executors to apply, at their discretion, a part of the inte- rest of the grand-sons' shares for their maintenance and preferment : and declared, that if her grand-daughter died under twenty-one, and unmarried, her residuary share, with the accumulated interest, should be equally divided beween the two grand-sons ; but in case of either of their deaths, the whole should be paid to the survivor; and if either of them died under twenty-one, the survivor should take his share ; and in case both grand-sons died under twenty- one, and her grand-daughter under that age, and unmarried, the whole of their respective shares, with the accumulations, were to be paid to the testatrix's nephew, John Bandy ; and in case of his death to his children, &c. The grand-daughter attained twenty- (/O See 8 Ves. 557. (y) 6 Ves. 541. (r) 3 Ves. 236. 536. SECT. II.] payable out of Personal Estate. 379 one, but the two grand-sons died under that age ; and the personal representative of the survivor claimed two-thirds of the residue under the limitation to the surviving grand-son contained in the will, contending that the grand-sons took vested interests in the two-thirds, under the positive rule before mentioned ; the time of payment not being annexed to the substance of the gift. And Lord Mvanley was of that opinion, and so decided ; but Lord Rosslyn reversed the decree on appeal, upon the principle, that the contents of the will sufficiently indicated the testatrix's intention, that none of her grand-children should take vested interests before they became entitled to receive their respective shares of the resi- due. And his Lordship, upon the clearness of such intention, de- clared, that the grand-daughter was entitled to the whole residue, although the shares of the grand-sons were not expressly given to her upon their dying under twenty-one ; thus raising by implica- tion cross remainders among them. The reasons of Lord Rosslyri's opinion appear to have been these : He considered the plan of the will as manifesting the testatrix's in- tention ; first, to provide for her three grand-children, and contin- gently for her nephew and his children. If all or any of the grand- children lived to a period when her fortune might be serviceable to them, the whole of it, with the accumulations, was to belong to them or the survivor ; but, if none of them arrived at that period, then the whole of the accumulations jj^as to go to her nephew. In executing this scheme in detail, the testatrix declared, that if her two grand- sons attained twenty-one ; and her grand-daughter lived to that age, or sooner married, they were to receive the whole of her property, with the accumulations, in equal shares ; but if her grand-daughter died unmarried under twenty-one, her grand-sons should take that share, with the accumulations ; and if either grand-son died under twenty-one, the survivor should be paid the whole residue, omitting to give to the grand-daughter the shares of the grand-sons in the event (which happened) of their dying under twenty-one, a mistake which was corrected by the Court upon the inference drawn from the limitation over of the fund to the nephew, who was to take nothing, except upon the death of the grand-sons under twenty-one, and of the grand-daughter dying under that age, unmarried ;(s) a limitation which was not only sufficient by implication to entitle the grand-daughter to the shares of the grand-sons who died under twenty-one, in the nature of a cross remainder, but also to show in concurrence with the other circumstances, the testatrix's intention that no grand-child should take a vested interest in its share, until the time of payment arrived. In Howes v. Uerring,(t) there was a bequest to trustees of all the testator's personal estate to convert into money, and apply the inte- rest to the maintenance of his children, the surplus to accumulate, and upon their severally attaining twenty-one, to each of them 2500Z.; and in case of any overplus, to divide the same amongst all his said children, " or such of them as should be living when the youngest should attain twenty-one" The event was, that all attained twenty- one, but one died leaving a child before the peried of division, name- () See 8 Ves, 12. (0 1 M'Cl. & Yo. 295. 380 Of vested Legacies [Cn. X. ly, before the youngest attained twenty-one. And it was held, that the child so dying, took no vested interest in the share of the over- plus, but that it went to the surviving children of the testator. A second exception to the rule of immediate vesting occurs, where a testator has shown a clear intention that no interest should vest in his legatees before his debts were satisfied. In those instances the intenton must prevail, and the bequests will be contingent until the debts might have been paid upon a due administration of the assets. What that period might have been, a court of equity will inquire into ; for that court will not permit the rights of legatees to be pre- judiced by the fraudulent or unnecessary delay of executors or trustees. Thus in Bernard v. Montague,(u) the trusts of a term of 500 years, vested in trustees, were declared to be, to raise by rents and profits, or mortgage, or sale, sufficient money to pay debts in aid of the per- sonal fund; and then to raise 2200Z. a piece for the testator's daughters as portions, " such portions to become due and to be con- sidered as vested in them at the expiration of two years next after the testator's death, if his debts should then be paid; but nevertheless, so as such portion should not bear interest. The next trust was, to raise maintenance out of the rents and profits, " until the portions should become payable, and should be actually so raised as afore- said ;" or, as expressed in another part of the will, " until they should be actually levied and paid as aforesaid-'* A further trust was de- clared to pay annuities to the testator's sons, " until his debts should be paid ;" and then followed a declaration, that the portions of the daughters should sink into the estate, if any of them died "before the portions as aforesaid should become due or vest." The estate being situate in Jamaica, the testator directed that the slaves should remain and be employed on it " until his debts and the provisions for his daughters should be raised and paid, and the other trusts sa- tisfied and fulfilled. The daughters died before the debts were paid, and the question was, whether, notwithstanding that accident, they took vested interests in the portions transmissible to their personal representatives lms t 1 Sim. & Stu. 328. SECT. III.] payable out of Personal Estate. 393 remainder, with a postponement of the enjoyment only until he arrived at a particular age, or until the particular purposes were answered, or so long as the tenant for life continued to live. Upon these subjects, it is indifferent whether the devise be of real or per- sonal estate; provided, when the subject is personal estate, the whole property in it be given with a particular interest out of it; for it will be afterwards shown that if the interest of personalty be alone given to a person for life, and the context of the will show that the capital was not intended to be disposed of till after his death, the interest in the capital will be contingent during the life of such person; because there is no gift of the principal previously to the direction for its payment, and the gift and time of payment are one and the same. We shall proceed to consider, (p] FIRST, instances of legatees in remainder taking vested interests in the capital at the testator's death, although the interest of the fund accruing between that period and the arrival of the legatees at particular ages, when the capital is given to them, is bequeathed to another person beneficially. .In Lane v. Goudge,(q] before stated, (r) we have seen that the annuity of 30Z. bequeathed to Naomi Ivy for life, remainder to James Lane, until his second daughter attained twenty-one, and then to her absolutely, vested in the daughter at the death of the testator. So in Taylor v. Biddall,(s) the devise was to Elizabeth Smith for so long time and until her son Benjamin attained his full age of twenty-one; and after he should have arrived at that age, then to him absolutely. The Court held that Elizabeth had a term for years in the estate until Benjamin was twenty-one, and that Benja- min took a vested remainder in fee. And in Manfield v. Dugard,(t) the testator devised lands to his wife till his son attained twenty-one ; and when his son arrived at that age, then to him in fee. The son died under twenty-one. And the Lord Chancellor decided that the son took a vested re- mainder in fee, expectant upon the term for years in his mother, a term which expired at his death. SECOND. Where the property will vest in the legatee in re- mainder at the testator's death, so as to be transmissible to his per- sonal representative, although the interest of the fund, or the fiind itself, be given to executors or trustees to answer particular pur- posesj as to pay debts, &c. and the capital is not bequeathed to the legatee until after satisfaction of those demands. In Boraston's case,(w) the devise was to a man and his wife for eight years, and after that term the lands were to remain to the ex- ecutors of the devisor, until such time as Hugh Boraston should accomplish his full age of twenty-one; the mesne profits to be em- ployed by the executors towards the performance of the testator's will; and when the legatee should attain twenty-one, then that he should enjoy the estate to him and his heirs. Hugh Boraston died under twenty-one, and the Court of King's Bench determined, that the remainder vested in him at the death of the devisor, with a post- (fi) See the last case. (?) 9 Ves. 226. 231. (r) Ante, p. 389. (s) 2 Mod. 289. (0 1 Eq. Ca. Abr. 195. pi. 4. (u) 3 Rep, 19. 21, 1 New Rep. C. P. 317. 394 Of vested Legacies [Cn. X. ponement of the possession until Hugh completed the age of twenty-one. THIRD. Where a legacy in remainder after an interest for life will vest at the testator's death, so as- to be transmissible to the per- sonal representative of the legatee, although he die before the tenant for life. When the absolute property in a fund is bequeathed in fractional interests in succession, at periods which must arrive: as to, or in trust for A. for life, and after his death to B. ; the interests of the first and subsequent takers will vest together, and notwithstanding B. may die before t/2., his personal representatives will be entitled to receive the legacy upon ' the death of Jl.(x) This doctrine is established by a variety of ctises. In Monkhouse v. Holme,(y) the testator gave 800Z. to trustees to pay to his wife the interest for life, and from and after her death he disposed of the said sum of SOOZ. in manner following, &c. Then the testator, after several intermediate devises and bequests, gave the legacy, upon which the question arose : " I also give to Jonathan Monkhouse, son of my brother George, the sum of 100Z." Jonathan, having survived the testator, died before the widow ; and the ques- tion was, whether he took a vested interest in the legacy, so as to transmit it to his personal representatives 9 And Lord Rosslyn de- cided in the affirmative ; his Lordship remarking that the 800Z. was given to the trustees to pay the interest to the wife for life, and then in parts and shares, which showed that the testator intended to give vested interests to the several legatees. So in the Attorney General v. Crispin, (z) the testatrix, after giv- ing several annuities, bequeathed after the death of the annuitants, 501. to each of the children of D. Riviere. D. Riviere then had seven children, six of whom died before the surviving annuitant ; and one of the questions was, whether any interest vested in the six children, as they did not survive, the last annuitant 9 And the Lord Chancellor determined that they took vested interests. The last case was followed by Benyon v. Maddison,(a) in which Mr. Lynde bequeathed the whole of his estate to the defendant, to pay the interest to his mother, Hester Lynde for life ; and after her death, he then gave to five persons 500Z. each, three per cent, annui- ties, and to J. Benyon and Mary his sister, 100Z. each like annuities. J. Benyon survived the testator, but died during the life of Hester Lynde ; and the question was, whether J. Benyon took a vested in- terest in the 100Z. three per cent, annuities, which entitled his per- sonal representative to call for the stock after the death of Hester? The Master of the Rolls was of opinion, that /. Benyon had a vested interest in the annuities, and that his personal representative was entitled to them. The next case was Scurfieldv. Howes,(b] where the testatrix being entitled to a mortgage debt of 500Z. directed her executors to permit Susanna, wife of Michel Homer, to take the interest to her separate use for life ; and if the mortgage should be discharged, she directed (x) 9 Ves. 507. () i Bro. C. C. 298. (z) Ibid. 386 and see Exel v. Wallace, 2 Ves. sen. 118. (a) 2 Bro. C. C. 75. ed. by Belt. (6) 3 Bro. C. C. 90. SECT. III.] payable out of Personal Estate. 395 the money to be invested in government securities to the same use. And after the death of Susanna, the testatrix gave the principal sum to the son and daughter of Susanna, by a former husband, equally, but if either of them died before her mother, the whole was to go to the survivor. Lydia, the daughter of Susanna, died in the lifetime of her mother and brother. Her brother assigned the 500Z. to the plaintiff, and died intestate before his mother. The plaintiff was also his administrator. The mother being dead, the question was, whether the plaintiff was entitled to. the whole 50G. as assignee or adminis- trator of the brother ? And the Master of the Rolls was of opinion, that the plaintiff was entitled to it in the latter character. The last decision appears to have been founded upon the follow- ing reasons: 1st, that -the son and daughter took vested interests in remainder, in the legacy at the death of the testator, liable to be di- vested as to a moiety in favour of the other legatee upon the decease of the one first dying. And 2dly, that as the. brother survived his sister, her share immediately and absolutely vested in him at her death, the will not requiring the surviving legatee to be in esse at the death of the mother. Hence, the brother was entitled to a moiety of the fund in his own right, and to the other under the limi- tation over in. the will, which gave a right to his administrator to re- ceive the whole, after the death of the tenant for life. In Taylor v. Longford,(c) the testator directed the interest of his residuary estate to be. paid to his two sisters Hannah and Mice in equal shares during their lives ; " and after their decease, the princi- pal to be paid to their, children equally ; but which ever sister died before the other, the share which was so paid to her, should be paid to her children in equal proportions ; but if such sister so dying, should leave no children, then the interest to be paid to the survivor for life as aforesaid." Alice died without leaving children. Hannah had two children at the testator's death, and other two afterwards, but the plaintiff was the only child living at her death, and as such claimed the whole residue under the idea that the gift to the children was contingent until the death of the surviving sister. In opposition to which claim, it was contended for the assignees of two of the other children, that the first words completely disposed of the property after the death of the two sisters, which clearly gave it to all the children, and that there was nothing to alter the effect of the gift in the subsequent expressions, which were only applicable to the life interests of the two sisters, and did not touch the principal. Of this opinibn was the Master of the Rolls, who declared that the property vested in all the children. The next case is, Wadley v. North.(d) There Thomas Weston devised and bequeathed his real and personal estates to a trustee, to pay the annual produce to his mother Jinn Weston, and his sister Jinn Wadley, during their lives (the moiety of the latter being given to her separate use ;) and from and after th6 death of his mother and sister, and the survivor of them, to apply the same for the benefit of all the children of his sister who should be living at her death, in equal shares, " each receiving his or her' respective share of the principal upon his or her attaining the age of twenty-one years ; and (c) 3 Ves. 119. (rf) 3 Ves. 364. 396 Of vested Legacies [Cn. X. if one child should be so surviving, in trust to pay the whole to such child upon his or her attaining the age of twenty-one years as afore- said" Ann Weston and Ann Wadley having survived the testator, died ; the former in the year 1793, and the latter in the year 1790. Ann Wadley had four children living at the testator's death, two of whom died after surviving their mother, in the lifetime of Ann Wes- ' ton, and under twenty-one. One of the questions was, whether as the two children died under age, and before Ann Weston, the tenant for life, they took vested interests in the property transmissible to their personal representatives *? And the Master of the Rolls deci- ded in the affirmative, declaring upon the true construction of the will, that the gift to a surviving child merely referred to the death of the mother ; so that the two children having survived her, took vested interests in their shares, although they died under twenty-one, and in the lifetime of 'the tenant for life. Lastly, in Blamire v. Geldart,(e] the testator gave to George Prin- gle, 200Z. three per cent, consols at his wife's decease, and appointed her, Pringle, and another person executors, to manage the property, and fulfil the intentions of his will. Pringle, the legatee died be- fore the wife, and the question was, whether he took a vested inte- rest in the consols, which entitled his personal representative to a transfer of them, the testator's widow being dead *? And Sir W. Grant, M. R. determined in the affirmative, and thus expressed him- self : "If the testator had given the stock to his wife for life, and at her death to Pringle, the latter would clearly have had a vested in- terest in the nature of a remainder. In a will, it is not material in what order the clauses are arranged. The question is, what is the effect upon the whole *? This testator begins by giving to Pringle the stock at the death of his wife, and then gives to his wife the whole of his property. Consequently, she has a life interest in that stock so given to Pringle at her death, for it is part of the testator's property not antecedently disposed of. Thus the will, no matter in what order, divides the fund between these two persons ; giving to one the interest for life, and to the other the capital at her decease. In effect and substance Pringle took a remainder, which became vested immediately upon the testator's death, and was not defeated by his own death in the lifetime of the wife." 3. We shall now proceed to consider the cases which form excep- tions to the general rule, that legacies in remainder vest at the same times as the particular interests previously given. It has been settled by a variety of cases, that if only the interest or dividends of property be bequeathed for life, and the context of the will show that no interest in the principal was intended to pass until after the determination of the life estate, the remainder will not vest during the continuance of 1 the particular estate, because there is no disposition of the capital distinct from the period appointed for the payment or distribution of it, viz. upon the death of the tenant for life. But to prevent the vesting of the remainder, the contents (e) 16 Ves. 314 and see Weedon v. Fell, 2 Atk. 123. Hatch v. Mills, 1 Eden, 342. Devisme v. Mello, 1 Bro. C. C. 537. Corbyn v. French, 4 Ves. 418. Lady Lincoln v. Pelham, 10 Ves. 166. Walker v. Shore, 15 Ves. 122. Hallifax v. Wilson, 16 Ves. 168. Walker v. Main, Uac. 8c Walk. 1 anAJnte, Chap, II. sect. 1. p. 45. SECT. III.] payable out of Personal Estate. 397 of the will must clearly show such to be the testator's intention, for we have seen that, whether the interest, or the fund itself be given to or in trust for Ji. for life, with remainder to B. absolutely, the re- mainder will vest in B. at the death of the testator, the intent being that B. should have the capital at all events at the demise of .#., on whose account alone, the enjoyment of it by B. was postponed. The preceding and following cases will illustrate these remarks. In Billingsley}v. WiUs,(f} the testator gave to his brother Capel Billingsky', the interest of 1500Z. for life, and from and after his de- cease he gave the said sum of 1500/. to all the younger sons, and to all the daughters of Capel, equally, to be paid to them at their ages of twenty-one ; declaring, that no elder son, if there should be more than one son, nor any elder daughter, if there were only daugh- ters of Capel living at his decease, should have any share or interest in the 1500J. But if all the children of Capel, except one, died be- fore twenty-one, then he gave 1000L, part of the 1500Z., to such surviving only child to be paid at twenty-one. Capel had three children when the will was made, and another child after the testa- tor's death. Letitia, one of the three children married and attain- ed twenty-one, but died before her father. The question was, whether she having attained twenty-one, but during the life of her father, was notwithstanding entitled to a vested interest in a share of the 1500Z., so as to transmit it to her husband, the defendant, her personal representative *? And Lord Hardwicke determined .that Letitia took no vested interest, but that the shares in remainder were contingent during the life of Capel Billingsky, since there was no gift of the capital previously to his death, the objects to take it being uncertain till that event happened, and consequently, the time of payment being annexed to the substance of the gift of the legacy which was at the death of Capel,) as Letitia was not then living, she took no interest in it which she could transmit to her personal representative.(g) So in Thicknesse v. Liege,(h) Mr. Berenger bequeathed his re- siduary estate to his executors in trust to place at interest, and then proceeded, " I will that the interest money, and the rents of my houses, &c. which my executors shall receive, be placed at interest, except only if it happen that my daughter survive her husband ; for then my will is, that my said trustees pay to her every year during life all the interest of the residue of my estate, and of its increase by interest, rents, or otherwise, and that after her decease they divide equally amorfg her issue all the said residuary estate and increase ; but that division to be only when the youngest of them shall be twenty-one years old ; and if any of them be then dead, leaving lawful issue, then the guardian of that lawful issue may ^ceive its share. But if my daughter die without any child, or the%^vingest of them shall not attain twenty-one, and none of them shall have left lawful issue, then I will that my residuary estate and its increase be divided into four parts ; one of which I give to Peter Liege (the respondent,) &c." The testator's daughter, Elizabeth, wife of John Lanove, had a child named Mary, six years old when the will was (/) 3 Atk. 219. (g-) See the case of Hoghton v. IVhitgreave, 1 Jac. & Wai, 146. (A) 3 Bro. Parl. Ca. 365. 373. 8vo. ed. VOL. i. 3 E 398 Of vested Legacies Cn. X. made, who survived the testator, and to whom he was godfather. She married the appellant Thicknesse, attained twenty-one, and died before him, leaving four children who died in infancy ; and they and their mother Mary died before Elizabeth; but Joyce, the survivor of the children did not die till after the death of Mr. Lanove, the hus- band of Elizabeth. Elizabeth, having survived her husband, be- came entitled to the interest of the residue for life ; and the ques- tion which arose upon her death was, whether the appellant, Thick- nesse, who represented Joyce and his wife Mary, was entitled to the residue, or the donees in the will, who claimed it, as Elizabeth Lanove left no child at her death *? And Lord Bathurst decreed, that according to the true construction of the will, the limitation over had taken effect ; and he ordered the property to be divided among the donees ; a decree, which proving unsatisfactory to Mr. Thicknesse, he appealed from it to the House of Lords, insisting that the residue vested absolutely in Mary, his late wife, upon her attaining twenty-one, subject to her mother's right to receive the interest for life. But the Lords were of a different opinion, and affirmed Lord BathursVs decree. The ground for the final decision seems to have been, the clear intention of the testator that all the limitations of the beneficial in- terest in his residuary property should be contingent, and no per- son take a vested interest in it before the right of enjoyment ac- crued. That it so appeared from the plan of the will, and the necessary construction of it, in order to make the instrument con- sistent and effectual, was proved by the reasoning of the counsel for the respondents, who contended, with success, that there was no substantive gift to make the legacy immediately vested, but that the gift and the time of payment were one and the same, viz. after the death of Elizabeth Lanove. The limitations in the will clear- ly showed that the testator meant, first, to provide for his daughter, upon the contingency of her surviving her husband, and afterwards for such of her issue as should be living at her death ; and if there were none, then for such of his relations named in the will, or their issue as should be then alive. Similar in principle with the last case, is that of Reeves v. Bry- mer,(i) in which Michael Foster bequeathed to his wife Taumason, the interest and dividends of 5000L four per cent bank annuities for life, which 50001. he directed should be continued in the same stock, and then be shared equally among his children then living. He also gave to his wife a leasehold house and -premises in his posses- sion, for life, and then to be let, and the net produce to be equally placed in the stocks for the benefit of his children who should be then living, in equal 'shares. Upon a question whether the bequest to the children was vested at the death of the testator, or remained contingent during the. life of Taumason, it was determined, that ac- cording to the true construction of the will, the legacies did not vest during her life; the words "then living" being grammatically re- ferrible to the period of her death, and not to the testator. Also in Bennett v. Seymour, (k} Archbishop Wake having six daughters, settled by deed the surplus of his real and personal es- (0 4 Ves. 692, and see Leake v. Robinson, 2 Meriv. 363, also the Duke of Man- chester v. Bonham, 3 Ves. 61. Pyle v. /Vice, 6 Ves. 779. () Ambl. 521. SECT. III.] payable out of Personal Estate. 399 tales (in the event of his making no testamentary disposition of them) in trust after his death, for his wife for life, with a direction after both their deaths, if she made no such appointment by will, that his trustees should sell the lands, and equally divide the proceeds and his residuary personal property, among his six daughters ; the share of each to be placed at interest, and such interest paid to them re- spectively/or life for their separate uses ; and after their respective deaths, the capital share of each daughter was to be paid to all her children by her first husband (excepting an eldest or only son for the time being) in equal proportions ; and if but one, then to such only child ; to be paid to sons at twenty-one, and to daughters at that age or marriage, with benefit of survivorship, in the event of the death of any of them before their shares became payable. But if all the children of any of his daughters by her first husband, except as aforesaid, died before their respective shares became payable as aforesaid, the testator directed that those shares should go to the eldest or only son of such daughter or daughters, at his age of twenty-one. And in case one or more of his three eldest daughters, Ann Seymour, Ethelred Bennett, and Hester Brodripp, should die, without any child or children living at her or their deaths ; or, there being such, all of them should die before their or any of their shares should become payable under the aforesaid trusts, then the share of the same daughter or daughters should, from and after the decease of the same daughter or daughters, and failure of her or their chil- dren, go to all the children then living, or after to be born of the other or others of them the said three last named daughters, to be paid as the shares of such other of the same three daughters, would have been payable to her or their children under the aforesaid trusts, if such daughter or daughters had been then actually dead. And if all the said three eldest daughters died without children living at their deaths ; or, there being such, all of them should die before their shares became payable under the aforesaid trusts, then such shares should go to the children then living, or after to be born of the three youngest daughters. The deed contained a similar proviso in re- gard to the shares of the three youngest children, with the ultimate limitation to the three eldest. The wife being dead without making an appointment, the Archbishop made a will, devising his residuary, real and personal estate, upon the same trusts as expressed in the deed. His daughter Hester had issue by her husband, Richard Brod- ripp, one son and a daughter, both of whom died before their mother. The son attained twenty-one, and died intestate. His mother Hester married again, and died leaving Thomas Strode, her second husband, her executor. The question was, whether as the son attained twen- ty-one, the capital share (the interest of which was given to his mo- ther Hester for life,) did not vest in him, although he died before her, so as to be transmissible to his personal representatives ; or whether according to the true construction of the will, the share was contin- gent during the life of the mother, so as to entitle the children of the other two eldest daughters to it under the limitations over in that instrument, since Hester died without leaving a child *? And Lord Hardwicke was of opinion, that the interest in the capital share was contingent during Hester's life, and he determined against the claim of her son's personal representatives. 400 Of vested Legacies [Cn. X The report is silent as to the reasons upon which Lord Hardwicke formed his opinion. They may, however, be inferred from the con- tents of the will ; whence it seems clear that the testator did not in- tend that any child's original share should vest before the death of its mother. This appears, first, from the exception, out of the be- quest to children, of an eldest or only son for the time being. Ex- pressions which can only have etfect by postponing the vesting of the children's shares to the death of the tenants for life. Secondly, it so appears from the testator's including the eldest or only son of a daughter leaving no other children at her death. Thirdly, it so ap- pears from the limitation over, in the event of any of the three eldest daughters dying without children, to the children of the other two eldest daughters then living. And lastly, it so appears from the ex- ecutory bequest to the children then living of the three youngest daughters, upon the contingency of the three eldest dying without children living at those periods. Each class of children were substi- tuted for the others, upon the happening of events, which could only arise upon the supposition, that the vesting of the children's original shares was deferred till the deaths of their parents. Upon these grounds, it is presumed, Lord Hardwicke was of opinion that the in- terests in remainder were contingent, during the lives of the daugh- ters, the tenants for life. Upon similar reasoning, the case of Smith v. Vaughan(l] was de- cided. There Mr. Terrell bequeathed to trustees, an annuity of 2001. issuing out of the Exchequer, in trust to pay it to his sister Rebecca Vaughan, for life, and after her death to assign it unto and for the use of all her children equally; and if she should leave but one child, then the whole was to be assigned to that one. Rebecca had only one child, which died before her, and the question was, whether the reversionary interest in the annuity vested in that child during its mother's life "? And the Master of the Rolls determined in the negative. That the reversionary interest in the last case was intended to be in contingency during the mother's life, may be collected from the terms of the will ; for it is obvious that the testator meant the chil- dren of his sister, if more than one, to take the annuity as tenants in common ; and if one only at her death, that one to take the whole. But if the interest were to vest in the children as they came in esse during the life of their mother, their shares would be transmitted to their personal representatives, although they died before her ; a con- struction which would defeat the testator's intention ; as he express- ly declared, that if Rebecca left only one child at her death, it should take the whole annuity. Under those circumstances the Court could not but be of opinion that the division of the annuity was to take place at Rebecca's death, among such of her children as were then living, a construction which rendered the will consistent in all its parts ; and as she left no child, the bequest necessarily failed for want of an object. In the following case of residue, the circumstance of children be- ing in esse when the will was made in conjunction with a particular clause in it, was declared to be the chief reason why the Court held (0 Vin. Abr. tit. Devise," 381. pi. 32. SECT. IV.] payable out of Personal Estate. 401 the remainder to children to be contingent until the death of the te- nant for life. The case alluded to is Spencer v. Bullock,(m) in which the testa- tor gave to his executors 1600i!. in trust to invest in stock, and to transfer it to his son, John Spencer, at twenty-one, with a direction to apply the intermediate dividends towards his maintenance, &c. The testator gave another sum of 1600Z. to his executors, upon a similar trust for his daughter Tabitha, at twenty-one, or marriage. He also gave a farther sum of 1 600Z. to be laid out in the same man- ner,^to accumulate during the life of his son-in-law, John Hart, and after his death the principal and accumulations were to be trans- ferred to his daughter, Elizabeth Hart; but if she died before her husband, without leaving issue, the money was to fall into the resi- due. The testator then gave to his executors his residuary estate, to be equally divided among his four children, Jane, Elizabeth, John, and Tabitha ; directing the shares of John, Elizabeth and Tabitha, to be invested upon the like trusts as their previous legacies of 1600Z. a piece, and the share of Jane to be invested for her separate use for life, and the principal for her children at her decease, in equal shares : provided if any of his children died before their legacies or shares became payable without having issue, he gave their shares to the survivors ; but if they left any children, such children were to take the shares of their parents, as tenants in common, if more than one child, and if but one, it was to take the whole. Jane had three chil- dren at date of the will, who survived her. She had other three at the testator's death, and three more afterwards ; and of the latter six children, three died before her, whose father was their administra- tor ; and he claimed in that character three-ninths of the residue ; contending that the children took vested interests at the death of the testator. But Lord Mvanley, M. R. was of opinion that the vesting was suspended during the life of Jane. The above opinion was chiefly founded, as Lord Mvanley decla- red, upon the circumstance of Jane having three children when the will was made. For if those children had been considered to take vested interests, and happened to die before the testator, there would have been a partial intestacy. In addition to this, the testator anx- iously stipulated, that if any of his children left but one child, it was to take the whole share, a declaration quite inconsistent with an in- tention to give vested interests to children during the lives of their parents. His Lordship, therefore, disallowed the claim of the father, and ordered the share of Jane to be distributed in sixths, among her surviving children. It has been shown that legacies given at future periods (which must arrive,) in the nature of remainders, vest immediately with the particular estates, except under particular circumstances. We shall next consider SECT. IV. The vesting in interest and transmissibility of contingent executory bequests. It is a rule of construction in regard to contingent executory be- quests, that the interests of the first and subsequent takers, quodam (>) 2 Ves. jun. 687. and see Matthews v. Paul, 2 Wils. C. C. 64. 74, 402 Of vested Legacies. [Cu, X* modo, vest uno instanti ; so that if the substituted legatee die be- fore the contingency happens, upon which he is to succeed to the legacy, his representative will notwithstanding be entitled to it so soon as the event shall take place. (w) Suppose then a bequest be made to Jl., but if A. died under twenty-one, or without leaving children or issue, to B., although B. happened to die before i., B.'s personal representative would be entitled to receive the lega- cy upon the happening of the contingency, on the ground of its being vested in right in B. previously to his decease(o). . Thus in Pinbury v. Elkin(p), the testator appointed his wife executrix, and gave her all his goods and chattels ; but if she died without issue by him, then the property was to remain after her decease to his brother J. S. J. S., after surviving the testator, died before the wife, who afterwards died without issue. One of the questions was, whether, as J. S. died before the wife, the legacy was gone, or his personal representative was entitled to it 9 The solution of which question depended upon this, whether the in- choate right vested in J. S. at the death of the testator. And it having been determined that the event upon which the legacy was given to J. S. was not too remote, Lord Parker, Ch., said he was of opinion, .that this possibility went to the executors of the lega- tee. He therefore decided in favour of the representative of J. S. So in Barnes v. Allen^q), where Mr. Allen bequeathed his re- siduary personal estate in trust for his wife for life, and after her death to their children. And if his wife should live until such children attained twenty-one, he then directed his trustees to transfer the securities upon which the property should be placed to his wife, and to such children who should attain their said ages, or the survivors or survivor of them, equally. But if it should happen that his wife should die leaving no such child or children living at her death, then he directed his trustees to transfer all such securi- ties to his brothers James and Henry ; and if any or either of them should be then dead, to the survivor for his own use and benefit. The testator died without leaving issue by his wife, and Henry sur- vived his brother James ; but both of them died, after surviving the testator during the life of the wife. The question was, whether the plaintiff, the executor of Henry the surviving brother, was en- titled to the whole residue ; which depended upon this, whether Henry took a vested interest in the whole 9 And Lord Thurlow decided in the affirmative ; remarking, that a contingent interest might vest in right, although it did not in possession ; and that contingent or executory interests might be as completely vested, as if they were in possession. He therefore declared, that, subject to the widow's life interest, the residue vested in James and Henry as joint tenants ; and that as Henry survived his brother, the whole, subject as aforesaid, belonged to the plaintiff, his executor. The two last authorities were followed by Stanley v. Wise.(r) (ri) Chauncy v. Graydon, 2 Atk. 616. (o) Anon. 2 Ventr. 347. (/z) IP. Will. 563. (y) 1 Bro. C. C. 181. ed. by Belt. 3 Ves. 208. where this case is stated from Reg. Lib. (r) 1 Cox, 432. and see Fearne's Ex. Dev. 555. 7 ed. and Wilmot v. Wilmot, 8 Ves, 10. SECT. V.] payable out of Personal Estate. 403 In that case the testator, having four daughters, three of whom were named Mary, Sarah, and Elizabeth, bequeathed to Mary and Sarah 4000Z. a-piece ; but if either of them died unmarried, he empowered her to dispose of 4001., part of her 4000Z. ; and the residue of that sum (3600Z.) he directed to go and be divided among his surviving daughters, and the children of such of them as should be then dead ; the children taking their mothers' share. Sarah died unmarried. Elizabeth had five children, two of whom sur- vived Sarah, and the other three died before her ; and it is presum- ed that Elizabeth also died before Sarah. The question was, whether the interests of Elizabeth's children in the 3600?. vested as they came in esse, subject to be divested upon the contingency of Sarah's marriage, so as to entitle the representatives of the three children dying before Sarah (who did not marry) to equal shares with the two children who survived her *? And Lord Kenyan, M. R., was of opinion, that all Elizabeth's children took vested interests, and that the fund was divisible in fifths. It may be asked whether, as the interest in the executory bequest vests in the second legatee, so as to be transmissible to his personal representatives notwithstanding his death before the contingency happened, that circumstance will not prevent the interest from vest- ing in the first legatee. We shall therefore consider in the next place SECT. V. The effect upon the vesting and devesting of lega- cies, when they are subject to a limitation over upon the happening of a particular event. 1. Where the gift is immediate, with a limitation to "survivors" upon the death of any of the legatees without leaving issue, or under the age of twenty-one years. Sir William Grant, M. R., expressed himself to the following effect, as to the rule of construction applying to the present subject: "I take it to be clear that a devise over upon a contingency has not the effect of preventing the shares of legatees from vesting in the mean time, provided the words of bequest be, in other respects, suf- ficient to pass a present interest; but that such a devise over of the entirety may be called in aid of other circumstances to show that no present interest was intended to pass."(s) This being so, the following may be asserted as a general proposi- tion : That if a legacy be given to A., and no time of payment be expressed, or it is directed to be paid at twenty-one, and if Jl. die before that age, then to B. the legacy will vest in A. at the death of the testator, subject to be divested in the event of his dying under twenty-one. Hence, if there be several infant legatees of the same fund, and the bequest be made to them as tenants in common, with or without a direction for payment at their several ages of twenty-one, but if any of them die under that age, then to the survivors ; or if all of them previously die, then to B.; those bequests over will not prevent the immediate vesting of the legacies, until one of the lega- tees, attain twenty-one ; but, on the contrary, the legacies will im- (s) 3 Meriv. 340. and see Shepherd v. Ingram, Ambl, 448. and Lyon v. Mitch- ell, 1 Mad. 467. 472. 404 Of vested Legacies [Cn. X. mediately vest sub modo; i. e. subject to be devested upon the hap- pening of the contingencies, on which they are given over. As examples of these remarks. In Deane v. Test,(t) Mr. Hoskins bequeathed to his sister Deane's children an additional legacy of 2000/. to be paid out of a particular fund, and to be divided among them in equal shares ; but if any of them died under twenty-one, their proportions were to go over and be paid to the survivors. The question was, whether the children took vested interests in their shares at the testator's death, liable to be devested upon their dying under twenty-one 9 And Lord Eldon decided in the affirmative, upon the principle that the bequest to them was immediate. And his Lordship said, that the consequence of the children taking vested interests would be, that if any of them died under twenty-one, the produce, at . least the interest, accrued from the death of the testator, would go to the child, although it would take nothing in the capital. It is to be noticed, that the principle entitling the legatees to in- terest in the last case is this, that the legacy was due and payable at the testator's death. The enjoyment of it was not expressly post- poned until the legatees attained the age of twenty-one ; for, had the payment been deferred to that period, they could not have claimed interest during the intermediate time ; because, they not being entitled to receive the capital before that age, their right to interest, which could only accrue upon delay in payment of the principal, would have been defective. (w) So in Davidson v. Dallas,(x) the bequest was " to the children of Robert Davidson in equal shares, and if either of them died under twenty-one, their shares to go to the survivors." The question was, whether the legacy vested in the children at the testator's death, so as to exclude those which were afterwards born *? which depended upon this, whether the division and the vesting of the fund were to take place at the former period *? And Lord tildon said, " that the legacy was vested, subject to be devested by the death of any of the children under twenty-one, leaving another child surviving; that it was an immediate legacy to the children living at the testator's death, in whom it vested at that time, in equal proportions, with a limitation over, if either of them died under that age, to the survi- vors ; that the periods of division and vesting were one and the same, viz. the death of the testator ; and that, therefore, those children only who were living at that time were entitled. "(y) In the last two cases, the events upon which the legacies were to go over are definite, and clearly expressed, and therefore the testa- tor's intention easily performed. But 2. When the event, upon which a legacy is limited over, is not so clearly conceived and expressed by the testator as to satisfy a court of equity of his intention ; or, if understood, to enable it to carry that intention into execution, the bequest over will be defeated, and the primary legatee will take an indefeasible vested interest at the death of the testator. Cases of this description may arise when a testator, after an im- (0 9 Ves. 147. 152 (u} Seevfn^, sect. 3. p. 383. (or) 14 Ves. 576. (y) In relation to this subject, sec Chap, ll. sect. 1. SECT. V.] payable out of Personal Estate. 405 mediate gift to a legatee, declares, that if he (the legatee) die before he might have received the money, or before it might have been re- covered,^) the legacy shall go over to B. In those instances the intention is conceived and expressed with so little certainty in regard to the time when B. is to take it, that a court of equity will not venture to act upon it ; consequently, the interest will vest in the first legatee immediately and absolutely, and he will be entitled to payment of the legacy at the end of a year afte.r the testator's death. In Hutchin v. Mannington,(a) the testator, after noticing that his fortune was vested upon securities in the East Indies, gave several legacies. Most of them were particular to several of his brothers and sisters, with clauses annexed to each, directing that " if the lega- tee should die before he or she might have received the legacy, it should go to the children of the legatee equally, and in default of issue, among the other brothers and sisters." Then the testator, after stating how much the legacies would amount to, gave the re- sidue (calculating the amount) to his father absolutely, " but in case of his death before he might have received it" he gave it to his bro- thers and sisters and their children. The testator died about the year 1781, and his father in 1784, without having received any part of the residue ; and the question was, whether the brothers and sis- ters were entitled to it under the limitation over, or the father took an absolute vested interest in the fund at the death of the testator, so as to entitle his personal representative to claim it, although the father died before receipt of any portion of it ; upon the ground that the bequest over, if the father died before he might have re- ceived the residue, was an event so uncertain, and so impracticable to ascertain, as to be insufficient to divest the bequest which had vested in the father 9 And Lord Thurlow was of opinion, that the father took an absolute vested interest" in the property at the death of the testator, and consequently that the brothers and sisters had no title. His Lordship's reasons for the above opinion were these ; that, although there was a faint indication of an intent that there should be some time or other .when the interests of the legatee should go over, yet the testator had not conceived that intention, and ex- pressed it with sufficient definite certainty, that the Court could act upon it ; that it .was too uncertain. But his Lordship remarked, if the testator had given any time which could be discovered afford- ing some rule to go by, his intention should prevail. (6) >. Hence it may be considered, that if the testator had declared the bequest over should take place, in the event of the legatee dying before he received the property, or before tliefund was actually realised by the executor, the executory limitation would have been good.(c) To that effect Lord Thurlow had previously determined in the case of Faulkener v. Hollingsworth, stated by Sir W. Grant in Elwin (z) Wood v. Penoyre, 13 Ves. 325. T (a) 1 Ves. jun. 366. (6) See Lord Eldon's comments upon this case, 11 Ves. 497. (c) 11 Ves. 497. 502. and see ante, sect. 2. p. 376. VOL. i. 3 F 406 Of vested Legacies [Cn. X. v. Elwin,(d) a decision followed by the latter Judge in the case just referred to, which was as follows : Caleb Ehuin, after devising to his wife several freehold and copy- hold estates for life, upon condition that she released, as she did, her title to dower in his other real property, directed that his brother, Peter Ehvin, should, so soon after his wife's death or refusal to re- lease her dower as conveniently might be, sell all his lands, &c. ; and he gave the produce and the intermediate rents to be paid to and equally divided among his five nephews, children of Peter, " at such time as the sale should be completed, in case they were then living; but if any of them died before him (the testator,) or pre- viously to the sale of the estates should be completed, leaving issue, then his or their shares were to be equally divided among his or their children," &c. The estates were not sold during the life of Peter, the nephew, who, after surviving the testator's wife, died leaving three children. And the question was, whether, as the sale of the property did not take place before the death of the nephew Peter, the share of it, intended for him, did not belong to his children, by virtue of the limitation over depending upon that event 9 And Sir W. Grant determined in their favour, upon the principle, that the executory bequest did not rest upon any difficulty, or an uncertain event. The words were clear, requiring no construction, and the event easily to be ascertained. It is a consequence from what has been said, that wherever a tes- tator has defectively expressed the event upon which a legacy shall go over, yet, if his meaning can be discovered from a reasonable construction of the whole will, the Court will effectuate the intention, when it is practicable. Suppose then the. event to devest a legacy is thus described; " in case of the death of the legatee," without annexing to those terms his dying within any particular period ; the Court will put a construction upon those words founded on the tes- tator's intention,' collected from the contents of his will. We shall therefore proceed to consider 4. The construction to be put upon a clause divesting and limiting over a bequest " in case of the death of the legatee," ge- nerally. The words in which such a bequest over is expressed, neither have nor by construction have they received a precise and definite meaning, in which they must be uniformly understood. The ex- pression itself is incorrect, as it applies words of contingency to an event which is certain. No person can with propriety speak of death as a contingent event, which may or may not happen. When therefore a testator so expresses himself, the question is, what he means by that inaccurate expression. He may perhaps have had some contingency in his mind; as that the legatee was dead at the time he was making the will, or might die before the testator, or before the legacy should be payable, and then the inaccuracy con- sists in not specifying the period to which the death was to be re- ferred. He might have meant to speak generally of the death whenever it might happen, and then the contingent or conditional words must be rejected, and words of absolute signification must be (rf) 8 Ves. 547. SECT. V.] payable out of Personal Estate. 407 introduced; and accordingly, in every instance in which these words have been used, Courts have endeavoured to collect from the nature and circumstances of the bequest, or the context of the will, in which sense it is most likely this doubtful and ambiguous expres- sion was employed. (e) In treating of this subject, we must distin- guish between immediate bequests with a limitation over " in case of the death of the legatees," and when such clauses are annexed to legacies given at future periods, as after the determination of pre- ceding interest for lives. And FIRST when the legacy is immediate, but made defeasible " in case of the death of the legatee.'.' It is a settled rule upon this subject, that if a legacy be given to J\. generally, " and in case of his death," to B., those expressions, unexplained by the context of the will, are to be confined to the event of death happening during the life of the testator; so that, if the legatee survive him, the legacy will immediately vest, discharg- ed of the executory bequest to B.; and parol evidence that the tes- tator used the words in a different sense cannot be admitted. Thus in Lowfield v. Stoneham,(f) the testator gave to his brother John Stoneham, WOOL " and in case of his death," to the defendant Susannah. It appeared that John survived the testator; and the plaintiff insisted that the legacy vested absolutely in John, and was assets in the hands of the defendant who had received it. Parol evidence was offered by the defendant to prove that the testator in extremis declared he meant only to give to John the interest of the 1000Z. and that the defendant should have the principal if she sur- vived him ; but the evidence was rejected by the Court, as being inadmissible to contradict the plain words of the will ; and it seems that the plaintiff, as representing John Stoneham, was adjudged to be entitled to the legacy, which consequently must have vested in him at the testator's death, discharged of the limitation over to Susannah. The last case was acknowledged by the Master of the Rolls in Hinckley v. Simmons,(g) where the testatrix bequeathed, to her sister Mary Hinckley all her fortune, and whatever she had power to leave; " and in case of Mary's death," she gave all she had to her mother. Mary survived the testatrix, and it was- determined that she took an absolute 'vested interest in the property at the death of the testatrix, and that the limitation over depended upon her dying before the testatrix. So also in Turner v. Moore,(h) the bequest was of 15,OOOZ. three per cent, consols to the testator's nephew Robert Dalrymple, then or lately residing in India, " or in the case of his death," to his issue, but if Robert should be dead at the decease of the testator without leaving issue (events which happened,) then the testator gave 3000J. of the stock to John Turner, " or in case of his decease," to his issue. He bequeathed in the like manner 3000?. further part of the stock, to Robert Turner, or his issue ; and he gave 6000J. or other part of the stock, to his cousin Ramsey, " or in case of his death to his issue. (0 8 Ves. 21. . ( /) 2 Stra, 1261. mentioned by the Master of the Rolls in Cambridge v. Rous, infra, p. 408. (3-) 4 Ves. 161. (A) 6 Ves. 557. 408 Of vested Legacies [Cn. X. Sir W. Grant determined that the two legatees took absolute vested interests in the capitals, at the death of the testator. It is perceptible in the last will, that the testator's intention was consistent with the rule established by the preceding cases, where the instruments afforded no such testimony. The gifts were made to the legatees ; or, in the event of their deaths, to their issue, plainly showing the intent, that if the parent survived the testator, he alone should take the absolute interest, and his children nothing. This intention was corroborated in the bequest to Robert, for he was sup- posed to be in India at the date of the will, and the testator was ignorant whether he were then living or dead ; or, if dead, whether he left any issue. But it was obvious that if he should survive the testator, he was intended to take the fund absolutely ; and it was equally clear, that if he were then dead, leaving issue, the latter were meant to be substituted in- his place. The rule of construction being thus established in relation to the first bequest, could not, with propriety, be -varied in expounding the same words, occurring again in other parts of the will. The attention of the same Judge was again called to a similar question in Cambridge v. Rous,(i] in which Mr. Van Mierop, being in the East Indies, bequeathed to his eldest sister Martha 4001. ; " and in case of her death," to devolve upon her sister Cornelia. He also gave to Cornelia the like sum of money, " and in case of her death," to devolve upon Martha Both the sisters survived the testator, and Sir William Grant decided that the absolute interest in the legacies vested in them at the testator's death. Similar to the case of Turner v. Moore, the testator was in the case last stated, at a great distance from his sisters, and might have been in uncertainty as to their being living or dead. In the ab- sence of a contrary intention appearing, the presumption is natural, that he meant to make a separate and independent provision for each sister, if both should live to take the benefit ; consequently, the expression, " in case of her death," must have been used as .words of contingency to denote the death of either sister before the testa- tor, a construction which vested absolute interests in both of them at the testator's decease, as in the preceding cases. (k) . In the following authority, there was a variation in the expres- sions, and still the determination was the same ; the natural con- struction of the words were considered to import dispositions in the alternative, and not a mere gift to one person for life, with remainder to another. The case alluded to is Webster v. Hale,(l) in which Mr. Findlay bequeathed in trust for the use, exclusive right, and property of his sister Clementina, 8000Z. Irish five per cents.; " but should she hap- pen to die," then and in that case the above mentioned sum was to be equally divided among her children. He also gave to Ckmen- tina 40001. three per cent, reduced stock to be paid to her as soon as possible, " or in the event of her death," the said sum was to be (j) 8 Ves. 13. 21. () See the judgment, 8 Ves. 23. and the case next stated, ibid, 413. See Montagu v. Micella, 1 Russ. 165 (/) 8 Ves. 410. To the same effect see Slade v. Milner, 4 Madd. 144. and Ommaney v. Bevan, 18 Ves. 291. SECT. V.] payable out of Personal Estate. 409 equally divided among her children. The testator then gave to his sister Helen WOOL East India stock, " and in case of her death," the stock was to be equally divided among her children. Lastly, he bequeathed to Mrs. Findlay 20001. three per cent, reduced stock, to be paid to her as soon as possible, and to be entirely at her disposal, and Janet Walker 1000?. in the four per cents. His Honour remarked, that the two bequests to Clementina pointed more to alternative dispositions, than to gifts in succession; viz. to her for life, and afterwards to her children. In the first, the word " but" was disjunctive and adversative. It opposed one case to another, and implied that the children were to take in an event dif- ferent from that of the parent. In the second bequest the direction was for payment to Clementina as soon as possible, " or in the event of her death." among her children ; a direction affording strong im- plication of the testator's meaning to give to Clementina the entire and absolute -property. Such being the apparent intention in regard to those two legacies, his Honour, after commenting upon the others, was of opinion that the testator's meaning was the same in regard to his sister Helen, and therefore adjudged that both sisters took absolute vested interests in their legacies at the testator's death ; their own demises being, according to the rule before stated, re- strained to the contingency of that" event happening during the life of the testator. SECOND. When the gift of the legacy is not immediate, but in remainder after an estate for life, with a bequest over, in case of the death of the legatee." The avowed end and aim of every construction being to give effect to the intention of testators as expressed in or collected from their will, it seems that where a bequest is not immediate, but in remainder, with an executory limitation, "in case of the death of the legatee ;" those expressions will be applied to the period when the remainder takes effect in possession, viz. the death of the per- son taking the preceding interest. Suppose, then, the annual pro- duce of 10001. to be bequeathed to A. for life, and the capital in remainder to B. " and in case of the death of 5." to C. The happening of B.'s death will not be confined to that of the testator, so as absolutely to vest the legacy in B. upon surviving him, as in the preceding cases ; but the event of B. dying will be .continued during the life of A. the tenant for life : consequently, if the con- tingency happen during that period, the interest, which condition- ally vested in B., will be divested, and the legacy go over to C. An instance of this kind occurred in Galland v. Leonard(m.) In that case Francis Mell bequeathed his residuary personal estate in trust for his wife for life, with a direction to the trustees to divide the trust fund, after the death of his wife, between his daughters Hannah and Ann, for their own use ; " and, in case of the death of his daughters, or either of them, leaving a child or children," to apply a sufficient part of the interest towards their maintenance, during jninority ; and upon their attaining twenty-one, to distribute the capital among them, per stirpes ; remainder over if the daugh- ters left no issue which attained twenty-one. The wife and two (m) 1 Swanst. 161. 410 Of vested Legacies [Cn. X. daughters survived the testator, the former of whom is still living. And the question was, whether the daughters took, absolute and indefeasibly vested, interests in the residue at the testator's death *? a question which depended upon this preliminary consideration ; viz. whether the events of the daughters dying were to be restricted to the death of the testator, or to subsist in contingency during the life of the widow ? And Sir Thomas Plumer, M. R. determined, 1st, that the gifts to the daughters were absolute, though defeasi- ble in the event of their dying within a particular time ; and, 2dly, that such period was not limited to the death of the testator, but was to continue during the life of the widow. So in Harvey v. J\rLaughlin(n,) a case in the court of Exchequer, the bequest was to a trustee of 1600J. Old South Sea annuities to pay the dividends to Eleanor Todd for life, to her separate use ; remainder as to the capital, to be equally divided among Eleanor's three children ; " and in case of the death of either of them, the share of such as might die was to go to and belong to the children, or the child if but one, of the persons so dying." One of the three children (a son,) after surviving the testator, died before the widow, leaving children. And the question was between his administra- trix and his children ; the former contending that the event of the son's death was limited to its happening during the life of the tes- tator ; whereas the latter insisted that the contingency was intend- ed to subsist until the death of the widow, the tenant for life of the fund, which event having taken place, established their title under the executory limitation in the will. And so the Court decided, and declared, that "the shares of Eleanor's three children vested in thenij subject to be divested in case of the deaths of any of them in her lifetime," (to which must be added) if they left chil- dren^.) In all the instances which have been produced it was obviously the intention of testators to give the absolute property in the funds to the legatees, with a contingent limitation over upon the deaths of those legatees within a particular period ; which, from the de- fective manner of expression, it was frequently difficult to ascer- tain. But when it appears from the contents of a will to have been the meaning of a testator in adopting the terms " in case of the death" of a legatee, that the legacy should go over upon his decease whenever it might happen, then the words denoting contingen- cy will be rejected, and words of absolute signification introduced ; the effect of which will be to give the first taker only an estate for life, and the absolute interest to the persons in remainder ; in- terests which will vest in the several legatees in manner de- scribed in the third section(p). We shall therefore proceed to consider THIRDLY, the instances in which a limitation over " in case of the death of the legatee" does not import contingency, but the words are used in the sense of the death of the legatee generally, when- ever the event shall happen. In Billings v. Sandom,(q) the. testator gave to his sister Sarah, (n) 1 Price, 264. (o) See infra, p. 412. in this sect, sub-div. 5. (ft) Ante, p. 392-3. (y) 1 Bro. C. C. 393. SECT. V.] payable out of Personal Estate. 411 1000Z. " and in case of her demise" to the plaintiff and another per- . son. And, after bequeathing several legacies, he gave to Sarah, whom he appointed executrix, his residuary personal estate, to be disposed of as she thought proper. The question arose upon the clause " in case of her demise," viz. whether the words alluded to the death of Sarah generally, or to tHe contingency of her dying be- fore the testator *? And Lord Thurlow determined, that no contin- gent or alternate bequest was intended in the present case, but that it was the meaning of the testator that Sarah should enjoy the lega- cy of 1000Z. for life, and the persons in remainder be entitled to the capital after her decease. His Lordship appears to have founded his opinion upon the inter- nal evidence supplied by the will. The testator distinguished be- tween absolute bequest and the gift of a partial interest. When he intended Sarah to take the entire property, he expressly said so, as in the disposition to her of the residue ; and when he intended to give her no more than a qualified estate, he meant to express it, but so incorrectly from the terms he adopted, that they imported an ab- solute bequest defeasible upon a contingency instead of a limitation for life. The testator's intention, however, being apparent, the Court rejected the words of seeming contingency " in case of," and substituted for them the words " a" or "upon." With which al- teration the clause stood thus: "I give to Sarah, 1000Z., and at or upon her demise, I give the money to," &c. ; a form of bequest which would give Sarah an interest for life, with a vested remainder to the persons to whom it was limited. The principle of the last decision was adopted by Lord Rosslyn in Lord Douglas v. Chalmer,(r) in which Lady Greenwich bequeath- ed her residuary personal estate (subject to the payment of a prece- ding legacy and any other bequests she should make by a codicil,) in trust " for and to the use of her daughter, Lady Douglas ; and in case of her decease, to the use of her children equally." By a codi- cil made two years subsequent to the date of the will, the testatrix, among a variety of specific bequests, " gave her finest diamond ring to Lady Douglas ;" and her wearing apparel, &c. to Mary Monk, " or, if she should be dead before her" (the testatrix,) then to another person. The question was, whether Lady Douglas took the residue absolutely, as she survived the testatrix, or an interest in it for life only, with remainder to her children "? And the Chancellor decided that her Ladyship was merely entitled for life. It was upon the particular circumstances of the case that Lord Rosslyn made the above decree. As the testator in Billings v. Sandom, so the testatrix, in the present case, showed, that when she meant to give an absolute interest, she did so in express terms, of which the gift of the diamond ring to Lady Douglas, and of the linen to Mary Monk, are proofs. The bequest to Mary Monk further manifested, that when the testatrix intended to give an absolute le- gacy, defeasible upon the death of the legatee, before her, ste decla- red such her intention ; a circumstance which raiged a strong pre- sumption, that if her meaning had been the same in relation to Lady Douglas, she would "have used similar words. In addition to these (r) 2 Yes. jun. 501. 412 Of vested Legacies [Cn. X. circumstances, the bequest to her Ladyship of a ring was unneces- sary and inconsistent with an intent to give her an absolute interest in the residue, but quite consistent with an intention that she should take the residuary property for life only. Those reasons induced Lord Rosslyn to conclude, that the testatrix meant the children to take the fund after the death of their mother, whenever it should happen ; a conclusion which was authorized by the before stated case of Billings v. Sandom, and by no means contradictory to the cases before referred to in relation to the present subject. Questions have arisen upon the construction of limitations over of legacies in the events of the legatees'" dying unmarried" or " with- out being married," viz, whether the expressions were meant with- out ever having been married, or without being under coverture when the legatees died. If the first interpretation were adopted, then upon the marriages of the legatees the limitations over would be de- feated ; if the second prevailed, the deaths of legatees who were then unmarried would divest their interests, and give effect to the limita- tions over, notwithstanding the previous marriages of the legatees which had determined before their deaths. It is, however, settled in instances where the bequests are immediate, and of the entire inte- rest in the fund, to the legatees, that the words " dying unmarried" or " without being married," are to be taken in the sense of never having been married. And if to the words " should the legatee die unmarried," &,c. be added "and without issue," or, " without having issue," the latter words will be construed in the same restrictive sense as the former, i. e. without having children born ; and the co- pulative and will be changed into or, so that if the legatee marry and have a child, the interest which originally vested in the legatee sub modo will become unqualified and absolute, notwithstanding he may afterwards die a widower, and leave no child. But if he die married without ever having had a child, his interest will be divest- ed, and the limitation over take place. We must, however, distin- guish between cases like those just mentioned, and cases" where the interest of a legacy is given to a parent for life, and the capital to his children with a limitation over " in case he die without children." For in the latter, the contingency of the parent dying without chil- dren, can only mean without children at the time of his death. (s) These distinctions will appear upon considering 5. The construction which has been judicially put upon the words "dying unmarried," or "without being married and having children." In Maberleyv. Strode,(l}ihe testator gave to trustees his residuary estate, in trust to pay the interest to his son Samuel Strode, for life, .remainder, as to the capital, to divide it among all Samuel's children, " but in case Samuel died unmarried and without issue," or having issue, the sons should die under twenty-one, and the daughters before that age or marriage, then in trust to transfer the fund to lys nephews and nieces. Samuel married and died without issue ; and one of^the questions \yas, whether, as Samuel did not die unmarried, the limitation over was not disappointed, and an intes- tacy created? But Lord Mvanley determined in the negative, de- () 7 Ves. 459. (r) 3 Ves. 450. 454. SECT. V.] payable out of Personal Estate. 413 daring first, that the word " unmarried" is to be understood to im- port as never having been married; and the word " and" to be changed for " or," so as to make a double contingency ; conse- quently, although Samuel married, yet, . as the alternative event happened, i. e. his death without leaving a child, the limitation to the nephews and nieces took place. The reader will have remarked, that according to the distinction made in the observations prefatory to this subdivision, if children had been born to Samuel, and all of them had died before him, still the limitation over would have taken place; for nothing was given to them until his death ; a circumstance explanatory of the terms " in case he shall die without issue," and showing that they were used in the sense of his death without leaving issue. The next case differs from the preceding in this respect : that the gift was immediate to the legatees of the residuary estate, with an executory bequest over, " in case any of them died without being married, and having children." The case alluded to is Bell v. Phyn,(u) in which Mr. Phyn be- queathed the residue of his personal estate equally among his three children, George, Jane and Catherine; but if any of them died " without being married and having children," the share of such child was to be distributed among the survivors. After the death of the testator, Jane married, and having a child, the question was, whether she took an absolute vested interest in a third part of the residue? which depended upon .the construction of the words " without being married and having children;" for, if the having children was to be considered the same as without leaving chil- dren, then her interest would .be liable to be devested on the happening of that event. But Sir William Grant, M. R., construed the words, " without being, married," in the sense of " without ever having been married," upon the authority ofMaberky v. Strode; and after declaring upon the like authority that or should be sub- stituted for and, he pronounced his opinion that the expressions, " without having children/' meant, in the present instance, without having had a child or children. When it followed, that Jane hav- ing married and had a child, the interest which vested in her at the jdeath of the testatrix became absolute; and so it was decreed. In regard to construing the words, " without having children," the same as without leaving children, Sir W. Grant expressed him- self to the following effect : " It is not very reasonable, that if the testator's children shpuld have children who should live to require an expensive education, or to contract marriage, it should be but of the parent's power to touch the capital for either of those pur- poses, on account of the possibility that the children might die in the life of the parent; although the only .consequence of surviving the- parent would be, not that the children would take any thing, but that the parent might dispose of the whole as he thought fit. The intention was, to enable the parent to make a provision for the children, which might be in the life of the parent, as well as after the death ; and that if the children should live to marry and have (u) 7 Ves. 454. 458. . VOL. i. 3 G 414 Of vested Legacies [Cn. X. children, then, as they would require more than the income, the capital was to be at their disposal ; but if they should not live to marry or to have children, it was to go oVer. Such was the most likely construction. That a court of equity, in favour of vested interests, requires the events, which were to divest them, to happen with certainty and in strictness, is not only observable in the preceding cases, but will also appear from considering 6. Further instances, where events upon which executory limita- tions are made to depend, were held not to have happened, so as to divest the original legacies. It is the doctrine of Lord Mvanley, upon this subject, that &c, John, Prudence, and Elizabeth, being dead, Mrs. Embrey died, but, during the life of one of the persons last named; and the remainder in. fee in the testator's estate haying become. vested in possession, the question was, whether, as Mrs. Embrey died before the legacy was payable, the plaintiff', as her executor, was entitled to have it raised out of the real estates devised in remainder to John Trigg ? and Lord Hardwicke determined in the affirmative. It is observable in the last case, that payment of the legacy was merely postponed until the devisee came into possession of the es- tate charged with it. The conveniency of the devisee was the sole motive for deferring the raising of the money, which was intended by the testator to be received by the legatee or his personal repre- sentatives, whenever the remainder-man became possessed of the fund out of which it was to be paid. Similar to the four preceding (.r) Ambl. 167". more: fully reported 1 Bro. C. C. 124. in a note, (y) Ambl. 230. 442 Of vested Legacies [Cn. XL cases, the legatee or her personal representatives, in the last, were entitled to the money at law ; the devise operating as a conditional limitation,^) which, in default of the money being paid when due, authorized the legatee or her representatives to enter upon the es- tate. Lord Hardwicke therefore, in ordering the 100/. to be paid to the executor of the legatee, acted in conformity with prior authori- ties ; which were acknowledged and followed by Lord Camden in the case of Manning v: Herbert,(a) where the testator, being, entitled to a farm let to a Mr. Taylor, also to a dwelling house, and to great and small tithes of little value, devised to his wife, his house and the lands be- longing to it, together with his estate in the occupation of Mr. Tay- lor, directing that when his son William attained twenty-one, his wife should pay to William 401. a year out of the lands in Taylor's occupation. He then gave to his daughters Jane and Elizabeth, the great and small tithes, and expressed his will to be, that six months after his wife's death William, should pay out of the estate which was then in the occupation of Mr. Taylor, (5001. to Jane and Elizabeth in equal shares ; and in so doing the testator gave the whole of his real estate to William in fee ; but if either Jane or Elizabeth died before the wife, the survivor was to have the tithes, and only 400. out of Taylor's lands ; and in case of non-payment, a right of entry on those lands was given to both or either of the daughters. Jane survived Elizabeth, but both died before the wife; and Jane's ad- ministrator claimed the 4001. which was resisted on the ground, that, as she died before the money was payable, it sunk into the estate. But Lord Camden was of a different opinion, and ordered the legacy to be paid to the administrator of Jane. The foundation of Lord Camden's decree was, that the legacies not being made payable during the life of the wife, was merely for her benefit ; and that the six months after her death was allowed for the convenience of William; in order to enable him to raise the money, within a reasonable time, after he had obtained possession of the estate. All which Circumstances showed it to have been the testator's intention, that the surviving daughter or her personal re- presentative was to receive the 400Z. at all events. In addition to this, the titles of Jane and her administrator were not merely equita- ble but legal; a fact, to which Lord Camden (as we have seen Lord Hardwicke to have previously done) attached considerable importance. In Jeal v. Tichener,(b) Lord *Jlpsley made a like decree, referring to the cases of Hutchins v. Foy, and Hodgson v. Rawson before stated.(c) Mr. Shove devised two houses to his wife for life, remain- der to the defendant Tichener in fee, he paying thereout to Henry and Thomas Thornton 20L a piece within three months after the death of his wife. The two legatees, having survived the testator, died before the wife, but she being dead, and Tichener in possession of the houses,' the personal representatives of the legatees claimed the legacies bequeathed to them. And Lord Jlpsley declared, that the money vested in the legatees, so as to be transmissible to their Black. Com. 155. (a) Ambl. 575. Bro. C. C. 120. in a note. Ambl. 703. 5. C, (c) Ante, pp. 438. 440. z) 2 A) 1 SECT. I.] payable out of Real Estate. 443 personal representatives, and was a charge upon the houses devised to Tichener. These cases were followed by Lord Bathurst in Clarke v. Ross,(d) in which Mr. Mason devised his real estates to Joseph Mason for life, remainder to his first and other sons in tail, &c. with remainder in fee to Alexander Wilson; declaring that if Alexander or his heirs should actually come into possession of the estates, under the limi- tations in the will, he or they should pay to his daughter Catherine Wilson, 2000J. (with which sum the testator charged the estates,) to be paid at the expiration of two years, next after Alexander or his heirs should come into possession. Catherine married, but died several years before the remainder to Alexander came into posses- sion ; and the question was, whether she took such a vested interest in the 2000Z. although she died before the money was payable, as to entitle the person claiming under her personal representative 9 And Lord Bathurst was of opinion, that the interest, did vest in Cathe- rine, and he ordered the legacy to be raised, with interest, from the end of two years after the remainder in Alexander vested in possession. So in Kemp v. Davy,(e] Mr. Kemp charged his real estates with debts, legacies, and annuities, and devised his real and personal pro- perty to trustees to discharge them. After giving several legacies and annuities, among which were legacies to his wife and to his sisters Jane Blois and Elizabeth Kemp, he ordered his trustees, if his nephew John Kemp attained twenty-one, to convey the trust funds to him in fee, subject to the subsisting debts, legacies and annuities ; but if his nephew died under that age, he (the testator) gave additional legacies to his wife, to Jane Blois and to Elizabeth Kemp, directing them to be paid within six months after his nephew's death under twenty-one ; and he devised his real and personal estates to Mary Kemp, &c. John Kemp, the divisee, died under age, but survived the widow, and Jane Blois an'd Elizabeth Kemp. The question was, whether, as the last three persons died before John, their personal representatives were entitled to the additional lega- cies ? And the Court declared that the three legatees took vested interests, which were transmitted to their personal representatives. We perceive that all the authorities which have been stated are uniform in establishing the proposition, that where a legacy is given out of a particular fund, with reference to the period when the fund shall vest in possession, as for instance, when an estate is devised in remainder to B. with a charge to C.; the gift amounts to a distribu- tion of the estate between B. and C. Since therefore the remain- der to B. vests immediately, so does the charge for C. The cases also next referred to, were all decided upon this principle, and in exception to the rule mentioned in the beginning of the chapter ; a rule which, though at first universally adopted, (f) was afterwards considered to be very objectionable ; and in consequence was (fttised (cQ 2 Dick. 529. 1 Bro. C. C. 120. in notis. (e)l Bro. C. C. 120. in notis. (/) Among the cases determined according to the general rule, and which seem to be inconsistent with later authorities, are Tournay v. Tournay, Pre. Ch. 290. Carter v. Bletsoe, 2 Vern, 617. Gordon v. Raynes, 3 P. Will. 134. Bradley v. Powell, Forrest. 193. Boycot v. Cotton, 1 Atk. 552. Hallv. Terry, ibid. 502. and Alt. Gen. v. Milner, 3 Atk. 112. 444 Of vested Legacies [Cn. XI. the exception we have been discussing, where the time of payment referred, not to the person of the legatee, but to the circumstances of the esiatr.() In faicsey \. Edgar, (h) the testator devised his real estate to his wife for life, remainder to his son Robert in tail male, with remain- der to his own right heirs ; upon condition that Robert, or the per- sons then in possession of the estate, should within six months after the death of the wife, pay to his two daughters, Mary and Tempe- rance, 6QHl. a piece, and interest from the wife's decease, with a right of entry in default of payment. And although the daughters died before the wife, after surviving the testator, Lord Bat hurst de- termined that they took vested interests, which entitled their per- sonal representatives to the legacies. Lord Northington pronounced a similar degree in Thompson \. Dow,(i) where the testator, being seised of a reversion in an estate expectant upon the death of his aunt, devised the lands to his wife for life, remainder to Dow in fee ; subject to the payment of 200J. to his daughter Elizabeth six months after his wife's death, with a right of entry in default of payment. Notwithstanding Elizabeth died before the wife and aunt, his Lordship held that she took a vested interest transmissible to her personal representative. These cases were followed by the Court of Exchequer in Mor- gan v. Gardiner,(k) in which Mr. Price devised his real estate to his wife for life, remainder to his daughter Mary in fee, charged with 400Z. to his four younger daughters, within one year after the death of his wife, with interest from her decease. Two of the young- er daughters died before the wife, unmarried. Mary too, the de- visee of the estate, died during the life of the wife ; and it was de- termined, that the legacies vested in the younger daughters, which entitled the personal representatives of those who were dead, to their proportions of the fund. It is observable, that the fast case differs from the preceding au- thorities, in the circumstance of the devisee in remainder having died before the determination of the particular estate. This event, however, was immaterial, for Mary, the devisee took a vested inte- rest in the lands liable to the legacies, and which she must have paid had she survived the tenant for life. The person therefore claiming under her, who in this instance was her heir, necessarily succeeded to the estate, subject to all the claims, to which it would have been liable in the hands of Mary, had she survived the tenant for life, when the remainder would have vested in possession. In truth, the charge was a lien upon the . estate, which it would be bound to answer, into whose hands soever it went. In Dawson v. Killett,(l] a case of frequent reference, the princi- ple of the authorities before stated was considered and acknow- ledged. Mr. Mitchell devised an estate to his wife for life, and if tftey'^ould have no issue, he gave the estate to the defendant Kil- let, charged with 100J. to William Ranscomb, and 100Z. to Martha Ball, to be paid in six months after the death of his wife. Martha having died "before the testator, he, by a codicil, gave 50Z. of her (3-) 1 Bro. C. C. 1 (A) Ibid. 192. in nods. (i) Ibid. 193. in note. (*) 1 Bro. C. C. 194. innotia. (/) 1 Bro. C. C. 119. SECT. II.] pay able out of Real Estate. 445 legacy to Ranscomb, and the remainder of it to a Mr. Beaumont, to be paid at the time Martha would have been entitled to receive the legacy, had she lived. Ranscomb, after surviving the testator, died before the wife, and the wife being dead, Ranscomb's executors claimed the legacies of 150Z. ; and Lord Thurlow was of opinion that they were entitled to them ; and said, " the devise was, after the death of the wife, to Killet, and the testator charged the estate of Killet (meaning the interest of Killet in the estate) with the sums in question, which distributes the estate between Killet and the legatees. Upon the death of the testator, the remainder vested in Killed, and the moment it vested in him, the charges vested in those to whom they were given." His Lordship therefore ordered the 1 50Z. to be raised, with interest to be computed from six months after the death of the wife. A similar question came before his Lordship in Godwin v. Mun- day,(m) when he pronounced the like decree as in the last case. And in Walker v. Main, (n) the testator devised real property to his wife for life, remainder to the plaintiff, in trust to sell and distribute the proceeds among his children and grand-children, at twenty-one, or marriage, with benefit of survivorship, in the event of any dying before their shares became payable.(o) A child and a grandchild, after attaining twenty-one and marrying, died before the widow ; and their shares of the real produce were claimed by their per- sonal representatives. And Sir Thomas Plumer, M. R., decided in their favour. We may here lastly notice the case of Watkins v. Cheek,(p] where- in a legacy charged upon real and personal estate was given to a legatee, to vest immediately upon the death of the testator, but to be paid to the legatee on attaining twenty-one, with interest in the meantime for maintenance. The legatee died under twenty-one. And it was held by Sir John Leach, V. C., that the safest construc- tion was, that the testator meant to express, that the legacy should not sink for the benefit of the devisee of the land, if the legatee should die under twenty-one. CHAPTER XII. Of charging Legacies upon the Real Estate, and of Exoneration. HAVING, in the preceding chapter, marked the distinctions as to the vesting of legacies, when they were made payable out of the per- sonal estate only, or out of the real estate, either alone or in con- junction with the personal property ; it is proposed to consider, in the present chapter, FIRST, when legacies will be construed as given solely out of the real estate ; SECONDLY, when that estate is to be considered charged only with their payment ; and LASTLY, as to the (m") 1 Bro. C. C. 191 and see Bay ley v, Bishofi, 9 Ves. 6. stated ante, p. 428. S. P. (n) I Jac. & Walk. 1. 7. (o) See ante, p. 418. (/) 2 Sim. & Stu. 199. VOL. i. 3 L 446 Of charging Legacies [Cn. XII. application of those funds in satisfaction of the legacies. In treating of these matters, the following arrangement is adopted : SECT. I. When Legacies are given solely out of the Real Estate. SECT. II. When Legacies will, and will not, be cpnsidered effectual charges upon the Real Estate. And 1. Where the legacies were held to be charges on the real property. 2 When not so considered. 3. Of charging and disposing of the real estate, or its produce, by codicils or paper-writings not attested according to the Statute of Frauds. SECT. III. Of Exoneration. 1. When the personal estate is first liable to pay debts and legacies. 2 When the real estate will be considered the primary fund for those purposes. 3. -Jls to the admission of parol evidence of the testa- tor's intention. 4. When the personal estate is exonerated from par- ticular debts and legacies, and not from debts and legacies generally. 5. When the personal estate is not exonerated from paticular debts and legacies And as to debts not of the testator's own contract- ing. 6. Where a part of the personal estate is specifically appropriated to pay legacies in exoneration of the remainder. 7. As to the exemption of the personal estate from pay- ment of debts and legacies, where the legatee dies before the testator. 8. With respect to the liability of the real estate to debts and legacies, when the money has been once raised, but misapplied SECT. I. When Legacies are given solely out of the Real Estate. Where, from the terms of the will, it clearly appears to have been the testator's intention, that the fund for the payment of legacies given out of, or made charges upon, the real estate, is that estate only and singly ; it alone will be liable to those demands. This may happen in the following instances ; as if legacies be given, and at the same time directed to be paid out of the real pro- perty ;(o) or where the real estate is given to A. either inprcBsenti or (a) Amesbury v. Broivn, 1 Ves. sen. 482. SECT. I.] upon the Real Estate. 447 infuturo, he paying out of it certain legacies ;(&) or if the land be charged with such payments :(c) in each case, the devised estate will be the only.fund out of which those sums are to be paid. The rea- sons are these ; the estate in the one case is expressly encumbered, and in the other it is intended to be divided between the devisee and legatees'. In the last instance, the estate is given upon condition that the devisee make the specific payments. -He takes the land cum onere, and non constat the estate would have been devised to him, unless the testator had conceived that the legacies would have been discharged out of it. So also, where a legacy is given out of real property, not the ab- solute estate of the testator, but in the exercise of a. power of appoint- ment, that property is the only fund liable to the bequest ;(d) except the appointor manifest in his will an intention (as in Savilev. Black- et before stated,)(e) that, in failure of the specific estate, his own should be subject to the legacy. The real estate will also be the only fund for payment, when it is given to trustees in trust out of,(/) or to apply the rents and profits, or the produce from a sale or mortgage, of the property, in paying particular sums of money ; because these sums have not, like debts, any existence independent of the will which bequeaths them as spe- cific parts of the particular fund referred to ; and out of which alone they are given and payable. (g) Instances of this kind have been produced in the third chapter, which treats of specific legacies. (A) A distinction, indeed, must be noticed between the devise of lands to a person charged with, or with a direction to pay, particular sums of money ; or to trustees, in trust to raise and pay particular sums ; and when the charge or trust is for satisfaction of debts or legacies generally. In instances of the first kind, we have seen that the real estate is solely liable to the demands ; but in instances of the second description, the real will be only answerable in aid of the personal estate, which is the primary and natural fund appointed by law to pay debts and legacies. Suppose, then, a devise of lands to B., charged with, or he paying all debts and legacies ;(i) or a devise to trustees, to pay debts and legacies, remainder to C. ; in each in- stance, the primary fund applicable to those demands is the general personal estate, as will be shown in the third section. But when the real estate is not expressly charged with debts and (6) Hutchins v. Foy, ante, p. 438. Jennings v. Looks, ante, p. 434. Loivther v. Condon, ante, p. 438. Ernes v. Hancock, ante, p 439. Hodgson v. Raivson, ante, p. 440. Tunstall v. Brachen, ante, p. 441. Embrey, v. Martin, ante, p. 441. Manning v. Herbert, ante, p. 442. Jeal v. Tichener. ante, p. 442. Pawsey v. Edgar, ante, p. 444. Thompson v. Dow, ante, 444. Morgan v. Gardiner, ante, p. 444. Damson v. Killet, ante, p. 444. Godwin v. Munday, 1 Bro. C. C, 391. Walker v. Main, 1 Jac. & Walk. 1-7. (c) Clarke v. Ross, ante, 443. and sec. 1 Ves. & Bea. 276. and ante, sect. 1. Chap. IX. also, Gittins v. Steel, 1 Swanst. 24. stated infra, and Morgan v. Gar- diner, ante, p. 444. (d) Pawled v. Paivlett, ante, p. 432. Phipps v. Lord Afulgrave, 3 Ves. 613. (e) Chap. III. sect. 3. p. 153. ( f) Hartley v. Hurle, 5 Ves. 540. stated infra. (^ By Sir W. 'Grant in Brydges v. Phillips, 6 Ves. 571. and by Lord Eldon in Gittina v. Steele, 1 Swanst. 29. Spurway v. Glynn, 9 Ves. 483. stated infra. Hancojcv. Abbay. 11 Ves. 179. 185. 186. stated infra. (/:> See the whole of sect. 3. Chap. III. p. 151. and infra, sect. 3. sub-div. 4. . (i) Ambl. 38. Mead v. Hide, 2 Vern. 120. Lovel v. Lancaster, ibid. 183. Gower \. Mead, Pre. Ch. 2. Bridgman v. Dove, 3 Atk. 201. Bromhalev. Willbraham, cited Forrest. 204. 448 Of charging Legacies. [Cn, XII. legacies, or with legacies, and the fact of charge or no charge is to be inferred from an interpretation of the contents of the will, the construction in those cases has been attended with Considerable nicety. We shall therefore proceed to examine SECT. II. When Legacies will, and will not, be considered as effectual charges upon the Real Estate, in the absence of ex- press declaration to that effect. HEIRS have always been looked upon with favour by courts of jus- tice, which have established a general rule of construction to their advantage ; viz. " that plain words are required to disinherit them."(fc) Such being the general rule, words equally plain, or indicating a violent presumption of intention, are necessary to create legal or equitable charges upon their estates. However, general introducto- ry or prefatory words will have that effect in favour of creditors,(l) except the extent of the expressions be qualified, as in this manner : " I direct that all my just debts and funeral expenses be paid by my executoi's ;" and the real estate be specifically devised. (m) But in dubious cases, a court of equity will incline in favour of a charge for the benefit of creditors, (n} subjecting to it not only the freehold pro- perty of which the testator was seised, but also his copyhold, (o) Whether the same expressions, which would inferentially create a charge of debts upon the real estate, will have the like effect in re- lation to legacies, is a subject on which there has been a difference of opinion. We shall therefore consider 1 . Instances where legacies were held to be charged upon the real estate under a fair construction of the will. In Tompkins v. Tompkins,(p) it was determined, that the words " after debts and legacie^s paid," connected with the manner of giving the legacies and the real estate, were sufficient to charge the legacies on that fund. The word after occurs in many of the cases, yet not in the sense of an adverb of time, but in the sense of " subject" OT " liable."(?) In Tompkins v. Tompkins, Mr. Tompkins bequeathed to his daughter B., and two other daughters, 5001. each ; to be paid at their respective ages of twenty-one, or days of marriage, out of his stock. He then devised the rents of his real estates to his wife for life, in lieu of dower, for the support and education of his children, and raising and making up the portions of daughters, and proceed- ed thus : " after my debts and legacies paid, I give and devise all () 2 P. Will. 188. (/) Bawdier v. Smith, Pre Ch. 264. Webb v. Webb, Barnard. Rep. 89. Hat- ton v. Mchol, Forrest 110. Harris v. Ingledew, 3 P. Will. 91. 96. King v. Xing, ibid. 359. Legh v. Warrmgton, 1 Bro. Parl. Ca. 511. 8vo. ed. Beachcroft v. Beachcroft, 2 Vern. 690. Stqnger v. Tryon, and fay v. Toivnsend, 2 Vern. 709. ed. by Raithby, in notes. Godolfihin v. Penneck, 2 Ves. sen. 271, Thomas v. Britnell, ibid. 313. Clark v. Seivell, 3 Atk. 100. Williamsv. ChUty, 3 Ves. 552. fihallcross v. Finden, ibid. 739. See also Clifford v. Lewis, 6 Mod. 33. and the cases there cited. (m) Davis v. Gardiner, 2 P. Will. 187. Bridges v. Landen, stated 3 Ves. 550. Keehng v. Broion, 5 Ves. 359. Powell v. Robins, 7 Ves. 209. (n} 2 Ves. & Bea. 273. Kidney v. Coussmaker, 1 Ves. jun. 436. 7 Bro. Parl. Ca. 573. 8vo. ed. S. C. 2 Ves. jun. 267. fo) Coombes v. Gibson, 1 Bro. C. C, 273. Kentish v. Kentish, 3 Bro. C. C. 257. ( /O Pre. Ch. 397. ( ? ) See Batson v. Lindegreen, 2 Bro. C. C. 94. SECT. II.] upon the Real Estate. 449 my land, tenements and hereditaments, to my son C. and his heirs." The wife and son were appointed executors. At the testator's death, his personal estate amounted to no more than 100/. The wife entered upon the real estates, and two of her daughters, on marriage, received their portions. The wife died, and J&., the re- maining daughter, sought to have her portion raised out of the lands ; which was resisted by C., contending that the portion was only payable out of the rents which accrued during the wife's life. But the Court was of opinion, that in this case C.'s estate was lia- ble to the demand ; as the several gradations in the will, showed the portions were in all events to be made good to the daughters. The testator, therefore, first charged the portions on his stock, and secondly directed that they should be made good out of the surplus of his rents, during the life of his wife ; and lastly he devised the lands to C., subject to them, in giving the estates to him after his debts and legacies paid ; which, the Court said, in a will, amount- ed to a charge on the lands ; because C. was not to have them be- fore the legacies were satisfied. So in Trott v. Vernon,(r] the words were, " Imprimis, I will and devise that all my debts, legacies and funerals shall be paid and satisfied in the first place. Item, I give and devise" &,c. The testator then proceeded to dspose of his real and personal estates, and the decision was in favour of the charge upon those words ; the Court, as in Hassell v. Hassell, below stated, laying considera- ble stress upon the word " devise" being applied, as well to the charge of debts and legacies, as to the disposition of the real estate. Also in Jiwbrey v. Middleton,(s) the will began, " as to all my worldly estate, I give and dispose thereof in the manner follow- ing." Then the testator gave general legacies, and several annui- ties for lives, to be paid by his executor, and he devised the rest and residue of his goods, chattels, and estates to his nephew, Mr. Middleton (who was his heir,} appointing him executor. The ques- tion was, whether the real estate was well charged with the lega- cies and annuities, in aid of the personal fund; And Lord Cowper determined in the affirmative. His Lordship's decree was founded upon these reasons; first, be- cause it appeared from the introduction to the will, that the testator intended to dispose of all his estate, both real and personal. And secondly, that, in making the disposition, he did it in a way, which showed his meaning that both funds should be liable to the legacies and annuities ; for, having set out in his will by declaring that he intended to dispose of his worldly substance in manner following, &c. and immediately proceeding to give legacies and annuities, and then concluding with a devise of the residue of both funds to his heir and sole executor, it was obvious that the term " residue," con- nected with the introductory clause, the intermediate gifts of lega- cies and annuities, and the relationship of the devisee, who was also sole executor, showed distinctly, that the nephew, in the characters of residuary devisee and legatee, was intended to take neither the (r) Pre. Ch. 430. 2Vern. 708. S. C. and see 2 Ves. jun. 331. (s) 4 Vin. Abr. 460. pi. 15. 2 Eq. Ga. Abr. 497. pi. 16. S. C. 450 Of charging Legacies [Cn. XII. * one estate nor the other, until those legacies and annuities were satisfied. Upon the principle of the last, was decided the case of Mcock v. Sparhawk,(t) in which the testator began his will in these words : " As touching my worldly goods, I dispose thereof as follows," &c. He then devised his real estate, to his heir in fee, gave several lega- cies, and appointed his heir sole executor, with a direction to per- form his will.(u) It was adjudged, that such devise, and such di- rection amounted to a sufficient manifestation of the testator's inten- tion to charge the real estate devised to his heir with the payment of legacies. The following case appears to have been determined upon the abstract principle, that were the real estate is combined with the personal, i. e. where they are made to constitute one entire fund, the former will be liable to all the burthens of the latter,(a?) and be charged with debts and legacies. Thus in Bench v. Biles,(y) Mr. Hampton devised and bequeathed all his real and personal estates to his wife for life, blending them into one fund, for her use. After her death he gave general lega- cies, and the remainder of his real and personal estates to his two nephews. It was declared that the legacies were charges upon the real property. In the next authority, although Lord Thurlow^s judgment fluc- tuated, yet he finally determined in favour of the charge. The case alluded to is Minor v. Wicksteed,(z] where the testator after charging his personal estate, not specifically bequeathed, with debts and funeral expenses, gave specific parts of it to his wife ab- solutely, with a legacy of twenty guineas. He also gave to her other articles of personalty for life, exempt from funeral expenses and legacies, remainder to his wife's niece, Felicia, for life, and after the death of the survivor, the articles were to fall into the re- sidue. He then gave a legacy of five guineas, and devised his real estates to his wife for life, remainder to Felicia for life, with re- mainder to John Wicksteed in fee ; a subject (as to the last re- mainder) and charged with the payment of such debts, funeral ex- penses and legacies, as that part of his personal estate, which was therein made liable thereto, should not reach to pay." The tes- tator, after charging his personal estate, with a small annuity, di- rected his executors (one of whom was Mr. Wicksteed J-to place at interest the surplus of his personal estate, after payment of his debts and legacies aforesaid, funeral and other expenses incident to his will, in trust for his wife for life, remainder to Felicia for life, and after the death of the survivor, he bequeathed the surplus as follows : First, he gave four legacies payable in six months after the death of the surviving tenant for life : and secondly, he gave the residue of it, after payment of the legacies before bequeathed, to Mr. Wick- steed. The personal estate being deficient to answer debts, &c. the question was, whether the real estate was charged with the four (0 2 Vern. 228. ed. bv Raithby. () Cary v. Cary, 2 Scho. 8c Lefroy. 188. fc) 1 Ves. jun. 444. " (y) 4 Mad. 187. and see Kidney v Coussmaker, 1 Ves. jun. 436. 2 Ves. jun. 267. (z) 3 Bro. C. C. 627. SECT. II.] upon the Real Estate. 451 legacies ] If, as Lord Thurlow at first thought, these legacies were given as parts of a supposed residue of personal property, the real Estate would not have been liable. But his Lordship was finally of opinion, that the bequest to Wicksteed was alone residue. The legacies therefore being particular, he considered them to be well charged upon the real estate by the will, in aid of the personal fund. And it seems clear from the context, that Mr. Wicksteed, who was both residuary devisee and legatee, and an executor, should not derive any advantage from either estate until the legacies were satisfied. It seems, that parol evidence of the testator's intention to create a charge upon the lands was given in the last case. Such evidence, however, does not appear to have been acted upon by the Court. And if, as it has been determined by a variety of authorities, a tes- tator's intention is to be alone collected from the contents of his will, parol evidence is inadmissible in the present instance. Hassel v. Hassel,{a] bears a very near resemblance to the case of Aubrey v. Middleton, before stated ; and the observations made upon the latter, equally apply to the former. There the testator began bis will in this manner: "As touching and concerning my worldly estate, I give, devise, and bequeath as follows : first, I give my house- hold goods, &c. to-my wife for life; I give, devise, and bequeath to my daughter, Frances, 300Z. at twenty-one." and after giving, de- vising and bequeathing other legacies, the testator thus proceeded : " I give, devise, and bequeath to my son, Halford, all and singular my real and personal estates, not herein disposed, to him, his heirs and assigns." It was contended on behalf of the legatees, that the testator having expressly declared his intention to dispose of all his worldly estate, and used in the gifts of the legacies to his children, the word " devise," which was applicable to real estate only, and having, by the residuary clause, given, devised, and bequeathed all his real and personal estates, not therein-before disposed of; and having also directed the legacies to .be paid by his executor, to whom he had given his real estate, it was manifestly his intent and meaning to charge the legacies upon that estate. And Lord Ba- thurst was of the same opinion, and so decreed. So in Austen v. Halsey,(b] Lord Eldon laid hold of the circum- stance of the savings and accumulations of real and personal es- tates being charged with legacies, in one event which did not hap- pen, to extend the charge on the real savings and accumulations in another which did happen. In trie case just referred to, Mr. Austen bequeathed some legacies and portions to his daughters, Frances and Elizabeth, if they at- tained twenty-one, with benefit of survivorship upon either of them dyin under that age ; directing his trustees to allow them a proper maintenance out of the rents and interest of his real and personal property. He then devised to the trustees his real and personal es- tates, to convey and assign to his son Henry, absolutely, at twenty- one or upon marriage with consent, or in strict settlement, if he married under twenty-one without consent ; and in default of issue, or if the son died under twenty-one, without ever having been mar- (a) 2 Dick. 527. () 6 Ves, 475. 452 Of charging Legacies [Cn. XII. ried, remainder to Frances absolutely, in case she attained twenty- three or married with consent, or in strict settlement, if she married under that age without consent; and in default of issue, or 'upon marriage without consent under twenty-three, remainder to his sis- ter Elizabeth, for the like interests as were devised to Frances, &c. And the testator directed his trustees, in the event of his son's death under twenty-one, or his marriage sooner without consent, to convey his leasehold and personal estates, with all- the savings and accu- mulations, which should be made from the produce of his real and personal property, after payment of legacies, &c, to his two daugh- ters in equal shares, to be vested interests and delivered to them at their ages of twenty-three, or upon their previous marriages with consent, with benefit of. survivorship ; and if neither of them at- tained twenty-thrfee, nor previously married with consent, he gave the whole savings and accumulations to the persons who, at the sur- vivor's death, should be entitled to the possession of the real estates. Before the son attained the .age of twenty-one or married, his sis- ters, also minors, applied to the Court of Chancery to have their legacies raised and secured ; and, the personal fund being deficient, the question was, whether the savings and accumulations of the rents during the son's minority, were charged with the legacies'] since the only charge expressed in the will Was upon the son's dying un- der twenty-one, or his marrying without consent, neither of which events had happened. And Lord Eldon was of opinion, upon the intention appearing from the whole of the will, that the testator meant the savings and accumulations to be charged in the event that had happened; although the words "after payment of legacies" were not in the clause giving the savings to the son, as in the clause giving them to the daughters. And his Lordship inferred from the limitation over of the personal fund, with the savings and accumu- lations from it, and the real estate, if his daughters died before they were entitled to receive them, that the testator intended whoever took the fund, should do so .subject to the legacies. Closely allied in principle to the last authority is the case of Webb v. Webb,(c) in which General Webb charged his real estates with the payment of two annuities, the one to his eldest son Edmund, and the other to Edmund's wife, after his death. The testator then appointed his manors of H. to his second son Borlase, in strict set- tlement, and devised all his other real estates (of which he had none) together with his personal estate, to Borlase absolutely, charged with debts and legacies; which devise was immediately followed by the bequests of portions to his other younger children, to be vested at twenty-one or marriage, and paid within two years after the testa- tor's death ; the intermediate interest to be paid by Borlase. And it was declared, that if any younger child died before the portion be- came vested, or married, during his life, the same should sink for the benefit of Borlase. The testator, not having any other real es- tate than the manors of H. which were not expressly charged with the portions, the question was, whether those manors were by impli- cation charged with them. And Parker, C. J. determined in the affirmative, who considered the younger children as creditors, and (c) Barnard. Rep. 86. SECT. II.] upon tht Real Estate. 453 said, that where a testator in the beginning of his will declared, that he was disposing of all his worldly estate, and then gave di- rection that his debts 'should be paid, the debts became a charge upon the real as well as the personal estate. In the last case it was objected to the charge, that the testato: having used proper words to subject the real fund to the payment of the annuities, it was to be inferred, that, as he omitted them in re- gard to the portions, his meaning was not the same ; but the Court answered, that a testator might use express words of charge in one part of his will, and create a charge by implication in another. An implication which seems to be clearer in the present case than in Austen v. Halsey before stated ; for in this instance, although the settled estates were not expressly charged with the portions, as the testator's other estates would have been, had he possessed any, yet it clearly appeared from the clauses which directed Borlase, the de- visee of the settled estates, to pay interest upon the portions, and provided for the sinking of the portions of children dying before tak- ing vested interests for the benefit of Borlase, that the testator in- tended to charge as well the settled as his other real estates with their payment. We may here observe, that where a testator charges all his real estates with the payment of his legacies, all will be equally liable to contribute ; no preference being allowed to the estates particularly devised over those comprehended in the residuary devise, since all devises of real estates, whether particular or residuary, are equally specific. This was decided in the recent case of Spong v. Spong, (d) where an attempt was made to establish a preference in favour of the former class of estates, in analogy to the case of a specific legacy, which is not subject to contribution with the general legacies, where there is a deficiency of assets. From this decree of the Lord Chief Baron, the defendant Spong has appealed to the House of Lords. But the real estate may be generally charged with debts and le- gacies, with an exception of a particular interest limited in the whole or in part of it, when the intention is clear in favour of the exemption. Thus in Birmingham v. Kirwan,(e) the testator, after vesting his freehold property in trustees, to pay his debts and raise a sum of money, gave his demesne, and his house, offices, and garden, in trust for his wife for life, at the yearly rent of 13s. an acre, she keeping the house, &c. in repair, and not leasing the premises, except to the person in possession of the remainder of his estates. The residue of his lands, " subject to the payment of his debts and legacies as afore- said," he devised to A. for life, remainder to B. in fee ; and be- queathed all his personal estate, except his stock of cattle &c. to his executors, to be applied in exoneration of his real property ; first in the payment of debts, and then of legacies. Lord Redesdale deter- mined, that as the testator's intention not to charge the demesne, &c. during his wife's life with debts and legacies, clearly appeared from the whole of the will, and more particularly in the direction as to the enjoyment by her, and the devise of the residue of the real es- (d) 1 Younge & Jerv. Exch. R. 300. (e) 2 Scho. & Lefroy, 444. 448. VOL. i. 3 M 454 Of charging Legacies [Cn. XII. tates expressly subject to the payment of debts and legacies, the demesne, &c. were not charged during the widow's life with those demands. 2. When legacies were held not to be charges upon the real es- tate. The preceding cases, it will have been observed, afforded solid grounds for inferring the intention of testators to charge the real fund or its produce with legacies in aid of the personal estate. The real property was devised, and there were expressions connected with that devise, which afforded a reasonably plain inference, that the land or its produce should be taken, subject to. the legacies. But where the intention to subject the real estate to legacies is merely probable, or conjectural, and there are no expressions of charge, ex- cept such as are capable of being otherwise satisfied, a court of equity will not act upon that conjecture or private persuasion, to effect the real estate with the payment of the legacies. When indeed an un- provided child or creditors are the persons endeavouring to establish the charge, the Court will incline in their favour, if the inference of intent to charge be dubious, as before observed ; but where the question is between mere voluntary legatees and the heir or devisee, it seems that the Court will require satisfactory conviction of the in- tent to charge the real fund with the legacies before they subject it to those demands. (/) Accordingly, if a testator commence his will by the introductory words " as to all my worldly estate, I dispose of the same as follows, after legacies paid," and then he gave legacies, bequeath personal estate in the form of residue, and devise his real estate ; in such a case the intention to charge the land, implied from the introductory words, is repelled by the contrary implication arising from the bequest of a personal residue which the testator supposed would remain after satisfaction of debts and legacies. (g) The link of connection, therefore, between the introductory words and the devise of the real estate (which existed in the preceding cases,) is interrupted and broken ; and the introductory expressions are quite consistent and satisfied by imputing to the testator the in- tention that he meant his legacies to be discharged out of his per- sonal property, and that estate only ; consequently, there is no foun- dation for a court of equity to raise a charge upon the real, in aid of the personal fund, by implication. The following case is an au- thority upon this point. In Davis v. Gardiner,(h) Mr. Gardiner began his will in this man- ner : " As to my worldly estate, I dispose of the same as follows : after my debts and legacies paid." He then gave legacies to chil- dren, payable at twenty-one, or upon marriage with consent, direct- ing intermediate interest to be paid to them by his executors. And after all his legacies paid, he beqeathed the residue of his personal estate to his son, to whom he devised his real estate in fee, with a limitation over to his (the testator's) daughters, if the son died be- fore them without issue. Under these dispositions Lord Maccles- field determined, that the legacies were not charges upon the real fund. First, because the bequest of the personal residue after debts - ^ Vide Minor v Wicksteed > ante ' P- 450> SECT. II.] upon the Real Estate. 455 and legacies paid was inconsistent with an intent to charge the lands with legacies ; and, secondly, because the interest of the lega- cies was directed to be paid by the executors; a circumstance which his Lordship considered to be a material feature in the case. The next case is remarkable in the circumstance of Lord Mvan- ley, M. R. referring to the distinction between debts and legacies, in regard to the requisite evidence of intention to create charges of them upon real estates. The principle extracted from the case is this : That the discharge of debts being a moral obligation and bind- ing upon the conscience of a testator, a court of equity will lay hold of the slightest inferences of intention to pay them, and effectuate it by charging the real estate ; but that, legacies being purely volun- tary, the reason, which induces the Court to struggle in favour of creditors, to make the charge, does not apply at the instance of legatees. The case alluded to is Kightley v. Kightley, (i] in which the intro- ductory words were, " First, I will and direct that all my legal debts, legacies and funeral expenses shall be fully paid and discharged." Then the testator gave legacies, and devised his real estate. And Lord Mvanley was of opinion, that the introductory clause was not of itself sufficient to charge the legacies upon the real fund, and that there was nothing subsequently in the will showing the inten- tion of the testator to make the charge, so as to authorize the Court to declare that the legacies ought to be raised out of the real fund, to the loss and disappointment of the specific devisees. In a subsequent case of Williams v. Chitty,(k) Lord Rosslyn ad- verted to the principle laid down by the Master of the Rolls in the last case, and declared, " he did not know how to state the differ- ence," in reference to charges of debts and legacies upon real estate. The case last referred to proves, that expressions in a will of a desire that debts should be paid, will be construed into a charge upon the real estate ; so that in Kightley v. Kightley, had the claim been made by the simple contract creditors, Lord Mvanley, it is presumed, would have decided in their favour, upon the surmised intention of the testator. If, then, the testator must be supposed to have meant in that case to charge his lands with debts, it seems to be a natural inference that he must have entertained a similar inten- tion in regard to legacies, since they are comprehended in the same clause.(l) It is true that in particular cases there is a great differ- ence between debts and legacies, in consequence of the latter owing their existence to the will, whilst the former exist independently of that instrument. But it would be carrying the principle of that dis- tinction to an unreasonable length, if it were allowed the effect of raising different and contradictory inferences of intention in a testa- tor, when debts and legacies are included in the same sentence ; viz. that the debts should be a charge upon the land, and the legacies no charge : an inconsistency that does not follow a determination against legacies being a charge upon the real estate, when they alone are mentioned in a clause so worded as that in Kightley v. Kightley. If the above observations be considered well founded, it follows that Lord Alvanley's decree cannot be supported. (i) SVes. jun. 328. () 3 Ves. 551. (/) 1 Meriv. 233. 456 Of charging Legacies [Cn. XII. The case of Keeling v. Brown,(m) stated in chap. XIV. sect. 1, is an instance in which the words of the will, and the introductory clause, " Imprimis, I will and direct that all my just debts and funeral expenses be paid and discharged as soon as conveniently may be after my decease by my executors, &c." have been con- sidered as not furnishing sufficient evidence of intention to charge the real estate. It may happen, from the manner in which a will is framed, that some of the legacies given by it shall be charges upon the real estate in execlusion of the others. An instance of this kind occurred in the case of Hone v. Medcraft,(n] which was to the following effect : The testator devised to his heir a part of his real estates, subject to and chargeable with debts, &c. " and all legacies thereafter men- tioned, that is to say," &c. giving several general legacies ; all of which he directed to be paid by his said heir ; but if no heir could be found, he devised those estates to a Mr. Lowndes, subject to and chargeable with " all the legacies before mentioned." The testator next disposed of the remainder of his real property to cha- ritable uses, and bequeathed some other legacies. Lord Thurlow determined, that the last class of legacies was not charged upon the real estates. But 3. Questions of charge of debts, or legacies upon the real estate can only arise where the will, containing such a charge, is executed and attested as required by the Statute of Frauds(o) to affect real property. Yet, when the will is duly executed charging the real estate, subtle distinctions have been made as to the power of a tes- tator to alter, or bequeath to other persons, legacies so given and charged, by a codicil not executed according to the statute. It seems, however, settled, that if a testator create a general charge of legacies upon his lands, in aid of the personal estate, by a will properly executed and attested, and he afterwards by a codicil, not duly excuted and attested to affect real estates, bequeath additional legacies; if the personal assets be insufficient to pay the whole, then the legacies by the codicil will be charges upon the real estate, equally with those given by the wUl.(/>) The principle appears to be founded in analogy to debts ; which, if charged generally upon lands, will include as well the debts incurred after, as those contracted prior to the date of the will. Lord Hardwicke.is accordingly re- ported to have expressed the rule to the following effect : " When a real estate is duly devised to trustees, and is well charged, by a will duly executed, with debts and legacies ; debts which are con- tracted after the will, or legacies given by a codicil, though not duly executed, will be a charge upon the real estate ; for the real estate was well charged by the will with the debts and legacies ; and it is immaterial by what instrument they appear, provided it has been proved as part of the will ; and when that is done, it is suffi- cient to denote the trust, and that it is part of what was intended to be comprised. (q) In consistency with this declaration, it seems that his Lordship determined the following case : (nz) 5 Vcs 359. (n) 1 Bro. C. C. 261 and see Masters v. Masters, 1 P. Will. 421. (o) 29 Char. II. cap. 3. (ft) 1 P. Will. 423. Ambl. 33. 41. 3 Ves. 163. 164. (y) See the reasons assigned by Sir Wm. Grant, 12. Ves. 37. and by Lord Rosslyn, 2 Ves. jun. 237. SECT. II.] upon the Real Estate. 457 The testatrix devised her residuary real and personal estates to her two sisters, " after payment of debts and legacies ;" and by a codicil, without any attestation, she gave a legacy to her cousin. Lord Hardwicke decided that this legacy was a charge upon the real property.(r) Since additional legacies may be given by an unattested codicil, so as to increase the charge upon the real estate, when that pro- perty is provided as an auxiliary fund for the discharge of debts and legacies generally ; consistency of principle requires that a testator may, by an unattested codicil, dispose of a part or the whole of his personal estate, exempt from debts and legacies ; although such a power, like the former, enables him by circuity to make the real estates the primary fund to answer those obligations. Such was the opinion of Lord Mvanley in the following case : In Coxe v. Basset,(s] the testator charged his real estates with the payment of debts and legacies ; and by an unattested codicil he gave to his -wife all his personal estate, with the exception of particular articles, which were to go as heir-looms, &c. It was ob- jected to this disposition, that where a testator has subjected his real estate in aid of his personal, as . in the present instance, he could not by a subsequent unattested codicil give away any part of the latter fund, so as to increase the load upon the real property ; or rather, that he could not by such an instrument so dispose of his personal estate as to exempt it from the discharge of his debts and legacies. To this objection Lord Mvanley answered, the testator might undoubtedly increase the charge with regard to legacies ; a question of right long doubted, but then settled ; and if he might increase it by legacies given by an unattested codicil, it was a ner cessary consequence that he might dispose of part of his personal estate as a specific legacy, and therefore exempt it (as in this case) from his debts and legacies, by a codicil not regularly attested ; and so his Lordship determined. It follows, from the power of a testator to give legacies by an unattested codicil, to affect real estate under a general charge of legacies by a duly executed will, that he may, by the like imperfect instrument, alter or revoke all or any of the legacies contained in the will, or substitute others. Thus in Brudenell v. Boughton,(t) the testator, having a small personal and real estate, gave by his first will, which was duly ex- ecuted, SOOJ. to his sister Brudenell, and to his sister Layng 4001, The residue of both funds, not before disposed of, he gave, " after payment of debts and legacies," to the defendant. By the second will he revoked all former wills, and bequeathed to his sister Layng only 100Z., and to his sister Brudenell only 400Z. The residue of his estates he gave as in the first will. Lord Hardwicke determin- ed, that the first will was pro tanto revoked as to those two lega- cies ; and that the smaller sums in the second were charges upon the lands. His Lordship thus expressed himself: " Suppose a man to make two wills, the first charging the real estate with legacies ; and that by the second there are general pecuniary legacies, but (r) Hannis v. Packer, Ambl. 556. and see 8 Ves. 498. 3 Ves. 159. 164. and see Buckeridge v. Ingram, 2 Ves. jun. 652. 665. 2 Atk. 268. 458 Of charging Legacies [Cn. XII. it is not executed in form ; yet I have no doubt of the latter lega- cies being a charge upon the real estate. (u) But there is no occa- sion to go so far in the present case, because the legacies in the second will may be considered as part of the money given by the first, only new modelled or qualified. These are less sums ; 100?. instead of 4001. , and 400Z. instead of 8001. If given exactly in the same manner, and to the same persons, there could have been no doubt ; but there being less sums, would have been a revocation pro tanto, and undoubtedly a charge upon the land ; but being given differently, and to different persons, makes the nicety. How- ever, I am of opinion, this is no more than a lessening .of the quan- tum of the money given by the former will, and only differently modified ; and I must decree the less sums to be raised out of the real estate." Upon the principle of the last authority, Lord Mvanley deter- mined the case of Attorney General v. Ward,(x) in which Sarah Kipling devised her real and personal estates to a trustee to sell ; and, after directing the joint proceeds to be applied in discharging the costs of the sale, her debts, funeral, and testamentary expenses, she gave legacies, among which was one to the children of a Mr. Daniel, if there should be a sufficiency to discharge it, after pay- ment of debts, funeral, and testamentary expenses and legacies ; and in case of a residue, she gave it to charity. The testatrix after- wards made a codicil (which was not properly attested to charge freehold estate,) and bequeathed to her brother's son, C. Kipling, the 3001. designed for the children of Mr. Daniel. The question was, whether, as that legacy was a charge upon the real property by the will, it was effectually revoked and given by the irregular codicil to the son of Mr. Kipling ? And Lord Mvanley decided in the affirmative; declaring, that the legacy of 3001. given by the will to the children of Mr. Daniel was revoked(2/) by the codicil, and was well given by the codicil to Mr. Kipling. In delivering the judgment in the last case, his Lordship ob- served : " If this were a legacy charged only upon the land, nothing can be clearer than that it could hot be altered, either as to the quantam or the person, by any will but such as would have affect- ed land ; but, being upon a mixed fund and once well charged, the testatrix may afterwards modify or alter it, as she thinks fit. If a testator say, he charges all the legacies given by his will upon his real estate, and give 20Z. to A., he may, by an unattested codicil, give that legacy to B. It has been determined, that you cannot create new legacies, but you may modify or alter any before given. You cannot give fresh legacies upon land, unless future legacies be charged, but you may substitute one for another." Hence, if the charge of legacies upon the real estate, in aid of the personal, be not general, but of legacies partially ; as if it were of legacies " hereby given," or ",of the several other legacies hereinaf- ter bequeathed :" in neither case will legacies by an unattested co- dicil be charges upon the real estate ; because, in each instance, the charges are confined to bequests in the will, and are not, as in the preceding case of Hannis v. Packer, charges of legacies generally. () Seethe last case. (a:) 3 Ves. 327. (t/) 8 Ves. 499. 2 Atk. 273. SECT. II.] upon the Real Estate, 459 Thus in Banner v. Bonner,(z] the testator, after giving several le- gacies or portions to his children, devised his real estates (subject to a term of 1000 years) to his second son for life, with remainders over. The trustees of the term were directed to raise out of the rents and profits of the lands comprised in it, or by mortgage or sale, and pay to his children "the several legacies hereby given to them with in- terest, and also the several other legacies hereinafter bequeathed." He then gave a few small legacies ; and afterwards, by an unattest- ed codicil, he bequeathed additional legacies to some of his children, which were declared by Lord Eldon not to be charges upon the real estate, since the charge of legacies by the will was not general. In the preceding cases, it is observable, that the real estate was the auxiliary, not the primary fund, for payment of the legacies ; consequently, the unattested codicils were allowed to operate, either in giving additional legacies where the charges of the lands by the wills were of the legacies generally, or in altering or revoking those which affected the real property, under partial charges in the wills. But where the real property is the only fund for the legacies, those charges can neither be altered nor revoked by a codicil not executed and attested, as required by the Statute of Frauds. Such was the opinion of Lord Mvanley in the case of the Attorney General v." Ward before stated, and of Lord Hardwicke in Brudenell v. Bough- ton, who said, " It is very certain no devise of lands can be made, but with such solemnity accompanying the execution of it, as direct- ed by that statute ; and it is equally clear, where a sum of money is given originally and primarily out of land, a will, with that charge, must be equally executed with the same solemnity, because it is considered part of the land : a construction analogous to the rule of law, that a devise of rents and profits is a devise of the land itself. The rule is the same as to revocations of a devise of lands ; and with respect to a revocation of a sum of money charged by a will upon lands, they must be revoked in the same manner."(a) If then lega- cies charged by will upon real estates, as the primary fund, cannot be affected by an unattested codicil, much less can such an instru- ment create additional legacies to be paid out of that estate in the first instance. In illustration of the above remarks, the following cases are pro- duced : In Sheddon v. Goodrich,(b) Mr. Goodrich, having one son and three daughters, gave, by will duly executed, his lands, &c. in the islands of Bermuda, to his wife for life; and after bequeathing to her and his children general legacies, he directed his executors to sell, after his wife's death, his real and personal estates, and to pay, with all convenient dispatch after the sale, 60001. to each daughter, &c. and appointed his son residuary legatee. The testator, upon the birth of a daughter, made a second will, which was attested by two witnesses only ; and, after revoking all former wills, he disposed of his real estates in Bermuda ; bequeathed to his wife a legacy, and gave his residuary estates to his son and four daughters. To this second will the testator added a codicil, attested by the same (z) 13 Ves. 379. (a) 2 Atk. 272. and see 18 Ves. 167. (6) 8 Ves. 481. 460 Of charging Legacies [Cn. XII. two witnesses only ; by which he varied the dispositions of the se- cond will. As to the effect of the two latter instruments upon the former, Lord Eldon declared, that, as the English real estates were not, by the first duly-executed will, absolutely converted into per- sonal estate, neither of the latter instruments could either revoke or alter the dispositions contained in it, but that since the lands in Ber- muda would pass by a will, without the attestation of three witnesses, they were well disposed of by the second will and codicil. The principle of Lord Eldon's .decree appears to be, that the case was an attempt to dispose of the produce from a sale of freehold property by a will and codicil not attested as required by the Statute of Frauds. But his Lordship inclined to an opinion, that, if by the duly executed will, the lands had been absolutely and for ever con- verted into personalty, (c) the second will would have revoked the first ; and the real proceeds, in its new character of personal estate, would have been well disposed of Jay the latter will and codicil. WitK respect to this point, Sir William Grant, M. R. made the fol- lowing remarks : " I have always understood, that an unattested will or codicil could have no operation on the land, or its produce. There are indeed some expressions in the report of Sheddon v. Goodrich, 'which seem to imply that a testator may consider his real estate as by his will thrown into personalty, so that he could act upon it as if it were personal property ; but I cannot conceive any such case, that a person can enable himself to dispose of his real estate or its pro- duce, by any other sort of will than the law requires to pass land."(d) In Hooper v. Goodwin,(e) the testator, by a will duly executed, devised his real estates to trustees to sell, and invest the money in stock, for the purpose of answering the legacies and annuities given by his ivill. He then bequeathed several legacies and annuities ; and gave his residuary estate to four persons as tenants in common. The testator afterwards made a codicil, attested only by two wit- nesses, and attempted, to dispose of the share of a residuary legatee who happened to die before him. Sir William Grant determined, that so much of the deceased's share, as consisted of the proceeds from a sale of the real estate, did not pass by the codicil ; the con- version of that fund not being absolute, but for particular purposes ; and therefore that the lapsed interest, being part of the produce of the realty, belonged to the heir of the testator. It will make no difference, although the testator expressly reserve to himself, by his duly-executed will, a power to dispose of his real estate or its produce by an unattested codicil, and for the reasons detailed by Lord Eldon, viz. " I take it to be decided (said his Lord- ship, referring to a future unattested paper,) and there is no doubt that a paper, made subsequent to the will could never be part of it, for the three witnesses required by the statute, are witnesses to the sanity of the testator, and to all that is necessary to constitute a good will. The consequence is, that the subsequent paper has not the ceremonies necessary to constitute a devise of land. The cases upon a charge of legacies by a will with three witnesses apply to this ; and, although it be settled that legacies given by an unattested (c) See Chap. IX. which treats of this subject. (d) 18 Ves. 166. (e) Ibid. 156. 1 Jacob. 575. SECT. H. J upon the Real Estate. 461 paper will be included in that charge ; that has been met at least with this symptom of disapprobation, that it is remarked as a solitary case,(y) and if, by a will duly attested, the devisor direct an estate to be sold, though he could have exhausted that fund by legacies, he could not by a will unattested give away part of it."(g") Consistently with these observations, Sir William Grant, M. R. decided the case of Rose v. Cunynghame,(h) in which Mr. Uncly, by will duly -executed, devised h*is plantations and estates in the island of Grenada to trustees, with directions out of the produce to discharge incumbrances affecting the property, and " to pay all such annuities, legacies, or bequests, as he should give or bequeath, to be paid out and from, or charge and make chargeable upon, his real or personal estate in Grenada by his will, or by any writing or writings, at any time or times thereafter, signed by him, or in his own hand writing, whether witnessed or not;" and, after payment of the said debts, &c. as aforesaid, the residuary annual produce, as also the produce of his personal estate in that island, were to accumulate until the year 1810, when his nephews were to have the estates, and the accumulation was to form part of the residue of the testator's personal estate. And, after charging his plantations and estates with two annuities, one being of 200/. to his wife, he devised to the same trustees his real estates in England, and all other his real and personal estates, (with the exception of such parts " as by that his will, or by any codicil or codicils thereto, or other writing to be signed by him, or wrote with his own hand, whether witnessed or not, he had disposed or should dispose of,") in trust to sell, and pay his funeral expenses, the costs of proving the will, his debts, (except those before provided for out of the Grenada estates,) and such legacies as he had given by his will, or which he should give by any codicil thereto, or by any writing signed by him, or in his own hand-writing, whether witnessed or not." The testator then gave several legacies, and disposed of the residue of his real and personal estates. By an unattested codicil he gave to his wife an additional annuity of 100Z. from his Grenada estate; and the ques- tion was, whether that estate was well charged with it ? And Sir W. Grant determined in the negative. The principle of the decree appears to have been, that the Gre- nada estate not being charged with .the payment of legacies and annuities generally, in aid of the personal estate ; but with those only bequeathed by the will, and such (as expressed and intended) as should be given in future by a codicil or writing, whether attested or not, and as the primary fund for their payment; the power so reserved to dispose of the proceeds of real estate by an unattested instrument could not be supported, since the .Statute of Frauds : consequently, the unattested codicil in the present instance was in- sufficient, either of itself, or by aid of the will, to charge the addi- tional annuity upon the Grenada estate. This case therefore is the same in principle with that of Sheddon v. Goodrich before stated. (i) It may happen that an unattested paper writing may be referred to in a duly executed will, as then in existence, for the disposition of the real estate or of the whole or part of its produce. The effect (/) 18 Ves. 167. .(.) 1 Ves& Bea. 445. (A) 12 Ves. 29. (i) Ante, p. 459. VOL. I. 3 N 462 Of charging Legacies [CH. XII. of such an instrument in consequence of that reference, is neces- sary to be considered. Jt was said by Wilson J. in Habergham v. Vincent,(k] " he be- lieved it to be true, and Ijad found no case to the contrary, that if a testator in his will refer expressly to any paper already written, and he so describe it, that there can be no doubt of the identity, and the will is executed in the presence of three witnesses; that paper makes part of the will, whether executed or not; and such reference is the same as if he had incorporated it." This was assented to by Buller,^. in the same case,.(/) Lord Eldon's language .upon this subject is as follows : " That an instrument properly attested in order to incorporate another not attested, must so describe it, as to be a manifestation of what the paper is, which is meant to be incor- porated, in such a way, that a court of equity can be under no mis- take. "(m) It might have been concluded from, these declarations, that this point was settled ; but we find Lord Eldon stating, on a recent occasion, " that the cases so far as they had gone, raised doubts, even as to ti paper antecedently existing, but clearly and undeniably referred to in the will."(n) This point, though not as yet the subject of express decision, cannot be considered as unpre- judiced by opinion. In the following case Lord Eldon determined, that the paper writings, referred to by the will, were not suffi- ciently described and identified, as to be incorporated in it, so as to dispose of the rents, and the produce from the sale of real estates. The case alluded to is Smart v. Prujean,(o] in which Mr. Lowe, a catholic priest of Gravelines in Flanders, being seised in fee of real estates in England, gave them, by will duly executed, to trus- tees, in trust to sell, and apply the intermediate rents " for such persons and purposes as he (the testator) should by a private letter or paper of instructions, which he mentioned in his will, he intended to leave with a Mrs. Johnson, then residing at Gravelines, or with her successor for the time being, should appoint." And he directed his trustees, immediately after the sale, to pay the proceeds with interest till payment, " to and for the benefit of such person, and in such manner as he, by the like private letter or paper of instruc- tions, should appoint." He then gave legacies to his trustees; and his residuary real and personal estates to the same trustees, " for the use of such person as should be named in the same letter or paper of instructions," and he appointed the trustees executors. The testator died at Gravelines ; and two papers were found in the same envelope with the will, in his bureau, in the room where he resided, belonging and adjoining to the monastery of English nuns at Gravelines, of which Mrs. Johnson (referred to in the will) was the superior* The envelope was sealed and endorsed by the tes- tator thus : " The will of Anthony Lowe." The paper writings were written by the testator; one of which, addressed to his trus- tees, directed them to pay the rents of his houses till sold, or if sold, the net proceeds to Mrs. Johnson, or her then successor, or (*) 2 Ves. jun. 228. (/) Ibid. p. 232. (m) 6 Ves. 565. (n) 1 Ves.5c Bea. 445. (o) 6 Ves. 560. and see the case of Wilkinson v. Adam, 1 Ves. & Bea. 426. 445. 461. SECT. III.] upon the Real Estate. 463 to such other person as they or either of them should appoint. The other paper writing was addressed to Mrs. Johnson, directing her how to apply the proceeds from the sale of his real estate and his personal property, which was in discharging a debt and legacies, giving the residue to herself. The question was, whether those paper writings were so referred to by the will, as that they could be clearly identified as the very letter or paper of instructions men- tioned in such will, so as to be embodied in, and made parts of it? And Lord Eldon determined in the negative ; observing upon this part of the case, as follows : " The true question is, if these papers were fouad in the bureau with the will, ban I say from the contents of the will, that these two papers are those referred to. Suppose several other papers were found with them, could I say this will would have enabled me to select these two as the only papers re- ferred to. The rule, and rny opinion are, that the will has not by its contents sufficiently identified those papers to enable me to say, that they are necessarily incorporated; if not, they are not attested by three witnesses, and it is admitted that this sort of disposition, unless the antecedent paper is incorporated, cannot be brought within the rule as to debts and legacies charged on real estate by an unattested paper." The consequence was, that, for this defect, his Lordship declared that the persons claiming under those paper- writings were not entitled. SECT. III. Of Exoneration. Where there is no doubt as to debts and legacies being effectu- ally charged upon the real estate, it is necessary to ascertain when the personal is to be first applied, and the real estate is an auxiliary fund only ; and when the real estate is the primary, and the per- sonal estate the secondary fund. In prosecuting this enquiry, it is proposed to consider, 1. When the personal estate is first applicable to the satisfaction of debts and legacies. The rule is general, that in the absence of contrary intention the personal estate is the first and natural fund for the payment of debts and legacies ; arid the real estate is only to be resorted to in aid of the former. A court of equity has, in several of the cases after men- tioned, attached considerable importance to the circumstance of the devisee of the land being also legatee of the personal estate, considering it to be a strong mark of intention that the testator could not mean to exempt the personal fund to the prejudice of the real, when both of them were given to the same individual. And it seems to be now settled, that whether the real estate be devised to a person, upon condition of his paying debts and legacies, or be charged with them generally, or whether it be given to trustees for those purposes, and the personal estate is disposed of by a general residuary bequjest,(p) none of these circumstances will prevent the personal fund being applied, in the first instance, to the satisfac- tion of those demands. The following cases will establish those remarks : (/z) Philijisv. Philips, 2 Bo. C. C. 274. see.m/ra sub-div. 2. Fitzgerald v. Field, 1 Russ. 428. 464 Exoneration [Cn. XII In Dolman v. Smith,(q) Sir T. Dolman, after bequeathing lega- cies, devised his real estates to trustees for the payment of debts, legacies and funeral expenses, with which he charged those estates. He then directed his trustees to receive the rents and profits, until his nephew Thomas, attained twenty-five, and to allow him out of them 30Z. annually ; also 201. a year to Lewis and Dorothy, till they attained the same ages ; and the residue of the rents, with the estates, he limited to Thomas in tail male, remainder over, direct- ing several articles of personalty to go as heir-looms with the estates. He then gave the residue of his goods, chattels, and per- sonal estate, before unbequeathed,. to his nephew Thomajs, the de- visee of the lands, and appointed his trustees executors. The Court decreed, that the personal estate was primarily liable to the debts and legacies. The above decision will agree with modern authorities, if it be referred not to an absence of what was then, and in that case con- sidered requisite, viz. an express clause exempting the personal estate, but to the general rule before stated, and to the inference in support of it, arising from the improbability of the testator intending to exempt the personal estate from debts and legacies, in order that the nephew might, at any time before the age of twenty- five, have the opportunity to receive and spend it, in opposition to the cau- tious and frugal manner in which the rents and the real estate were devised in trust for his benefit. Besides, as the Court observed, since both funds were to come into the same hands, the testator could not with reason be presumed to entertain so very frugal an intention, as to one fund, and not to extend the same frugal inten- tion to the other. Sq in Harewood v. Child,(r) the testator devised his real estates to trustees, in trust to raise, as in the will mentioned, sufficient money to pay his debts ; and after such payments, and reimbursing themselves, the trustees were to hold the remainder of the premises to the uses previously limited of the manor of C. t which were to the use of his daughter in tail, with remainder to his nephew Then he gave all his personal property to his daughter, whom he appointed executrix. It was determined, that the personal estate was first ap- plicable to pay the debts, in exoneration of the real, notwithstanding the express devise of the latter for the purpose. Nearly similar in every respect to the last case is that of Hasle- wood v. Pope.(s) The trust of the real estate was the same, with the exception of the clause directing the trustees to reimburse themselves ; and the beneficial devisee of the estates was the tes- tator's daughter in tail, who was v a minor, and to whom he also gave " all his personal estate," appointing her sole executrix. Lord Talbot declared the personal fund to be first applied to answer the debts, observing, that his opinion was chiefly founded on the cir- cumstance of the legatee of the personal estate being also devisee of the surplus real estate in tail ; for, (said he) " I cannot think it was. the testator's intention to exempt his personal estate from his debts, for no other reason than that his daughter might dispose of ( 9) Pre. Ch. 456. et vide French v, Chichester, 3 Bro. Parl, Ca. 16. 8vo. ed. (r) Stated in Forrest, 204. (s) 3 P. Will. 324. ed. by Cox. SECT. III.] of the Real Estate. 465 it by will under the age of twenty-one, on purpose to leave the real estate, settled on herself in tail, the more incumbered." It is worthy of observation, that in the two last cases, the per- sonal estate was not given by the term residue, and yet that circum- stance was not considered as showing any intention in favour of the legatee, to the prejudice of the devisee of the real estate, the legatee of the personal being also appointed sole executrix j a cha- racter in which she naturally took the personal estate, with all the burthens attached to it in a regular course of administration. (t] In Lord Inchiquin v. French,(u) Lord Thomond, after directing his debts to be paid, vested all his real estates in trustees, to sell a sufficient part of them to pay debts and legacies, and to reimburse themselves all charges ; and after those payments, to convey the remaining estates 'to Lord O'jBryan, then a minor, in tail male, with remainders over. The testator then gave a legacy of 20,OOOJ. to Ji. and directed the produce from the sale ordered of his real estate, to be accounted personal, and gave all the residue of his personal estate, after payment of debts and legacies, to Lord O'Bryan. Lord Hardwicke determined that the personal estate was the primary fund for the payment of the debts and legacies ; and' he approved of the case of Harwood v. Child before stated. The grounds of his Lordship's opinion were these ; 1st, that it was neither expressed, nor was there a plain necessary implication arising from the will, that the testator meant to exempt his personal estate from its natural obligation ; 2dly, that by the direction to the trustees to pay debts and legacies out of the real proceeds was to be understood, that they should raise so much money out of that fund as, with the personal estate, would be sufficient to pay debts and legacies ; 3dly, that the intention to subject the personalty to those demands was clear, from the direction of the net produce of the lands sold to be considered personal estate, the proper fund to answer those payments ; and lastly, because it could not be sup- posed the testator would have ordered part of his real property to be sold in order to give Lord O'Bryan a greater personal estate, who was, under the same will, to take the real, and at that time a child of very tender years. Lord Hardwicke concluded with an observation, sound in principle, and which, if now followed, would erect some mark as a guide to fofm opinions upon subjects of this kind. " The construction I have made (said his Lordship) is agreeable to the express words, and no implication can be to over-rule them."(x) In conformity with the preceding authorities, Lord Thurlow determined the case of Samwell v. Wake,(y] in which the testator, after desiring that his debts and legacies should be paid, and to that end charged all his estate with them, directed his trustees to sell his estate, and apply the money in discharging debts and legacies ; and, subject to those payments, he devised the lands to his natural son for life, with remainders over ; then gave legacies, and the resi- (0 See Brummel v. frot/iero, infra, and 1 Eden. 45. 2 Scho. 8c Lefroy, 543. () Ambl. 33. 37. tx) A proposition acted upon in the case of Morrow v. Bush, 1 Cox, 185. (y) 1 Bro, C. C. 144. 466 Exoneration [Cn. XII. due to the plaintiff. Lord Thurlow declared the personal estate was to be first applied in satisfaction of the debts and legacies. In regard to the exemption of the latter fund from its natural obligation to pay debts and legacies, his Lordship made the follow- ing remark : " It is not sufficient to charge the real estate, but a testator must show that it was his purpose the personal should not be applied;" a manifestation of intent not necessary to be in express words, as will afterwards appear, but to be collected from a sound interpretation of the whole will ; and it is to be noticed that, in the last case, the devisee of the real estate and the legatee of the per- sonal, were not, as in the preceding cases, the same person ; a cir- cumstance therefore which is not, of itself, sufficient to prevent the application of the general rule. The next case before Lord Thurlow was the Duke of Jlncaster v. Mayer, (z)* a case in which his Lordship reviewed preceding autho- rities ; and it has been since referred to as the standard by which questions of this kind are to be determined. In that case the testator, after creating a term of ninety-nine years in "his real estates in Lincolnshire, devised those estates, subject to it, and in default of his own issue, to Montague Bertie for life, with remainders over. He then declared that his trustees should be pos- sessed of the term, to raise out of the rents and profits, or by mort- gage, assignment, or demise of the estates, money sufficient to pay his debts, funeral expenses, and legacies, after which the term was to cease. Towards the conclusion of his will, the testator gave all his household goods, chattels, effects, and personal estate whatsoever, unto Montague Bertie, if living at his (the testator's) death, but if not, he devised the same to the person who should be entitled t^the freehold of his real estate under the limitations' in his will ; provided that if he (the testator) left issue, the limitations of his real estate, and the devise of the residue of his personal estate should be void, &c. : and he appointed his trustees executors, directing them to pay his personal charges, and all his debts and legacies when due, and by such methods as they thought proper, empowering them as execu- tors to reimburse themselves their expenses in proving the will, or otherwise in the execution of such will, out of his personal estate, or out of the money to be raised under the term of years. One of the questions was, whether the personal estate was exonerated from the debts ? And Lords Commissioners Ashurst and Hotham were of that opinion, and so decreed. But their opinion not being satis- factory, the cause was re-heard by ~Lotd. Thurlow, who reversed the decree after great consideration, and declared that the personal es- tate was first applicable to pay the debts. His Lordship professed the ground .upon which he founded his judgment to be, not any particular criticisms, but simply upon the rule of law ; viz. the testator not having declared by express \vords, nor -any other declaration which would tend in law, to preserve the personal estate for any given purpose whatsoever. .The creation of the term could not repel the general rule, for that had no greater effect than subjecting the estate to the payment t>f debts j it afforded (z) 1 Bvo. C. C. 454. and see Lord Eldon's comments, 1 Mcriv. 227. and M'Cleland v. Sha-cu. 2 Scho; 8t Lefroy, 533. stated infra. SECT. III.] of the Real Estate. 467 no stronger inference of an intent to exempt the personal estate, than a devise in trust to sell, &c. for the- discharge of debts, which occurred in preceding cases. Similar to those cases, the devisees of the real estate and the legatees of -the personal were in this in- stance the same, circumstances which, as we have seen, had great importance attached to them. But the present case is much stronger against the exemption of the personal fund than the authorities be- fore stated. The trustees of the term were appointed executors, and they, in the latter character, were directed not only to pay all debts, legacies, and funeral charges, by the methods they thought proper (duties which as trustees they had been previously ordered to perform by means of the term of years,) but also the expenses of probate, and their own charges as executors ; the testator thus blending the two characters and estates, and giving an option -in the executor-trustees to pay all those demands out of the personal fund. Hence, instead of any inference of an intention appearing to ex- empt the personal fund, the testator pretty clearly expressed his meaning, that it should be primarily liable, and then, according to Lord Hardwicke, in the case of Lord Inchiquin v. French, before stated, (a) against expression, no implication could be made. Upon the whole, Lord Thurlow's decree seems to be quite in harmony with the principles of the preceding cases. The next case differs from former. authorities, in the particular that there was no disposition of ^ the personal estate, except by the appointment of an executor; as to which Lord Rosslyn said, "no case had decided that the mere nomination of an executor, though under circumstances which would give him beneficially the personal estate, should have the same effect as a. distinct specific gift of it to an individual" The case alluded to is Gray v. Minnethorpe,(b] in which Mr. Simpkin devised part of his real estate to trustees to sell, and to pay, out of the proceeds, all his debts and funeral expenses, and to invest what remained on securities, and pay the interest to his brother for life, and to divide the principal, after his brother's death, among his nephews and nieces. The testator gave another estate to his brother in tail, and appointed him sole executor, and Lord Rosslyn determined, that there was nothing in the will to exempt the personal estate from the debts. In M" Cleland v. Shaw,(c) the executors were trustees of the per- sonal residue for the testator's next of kin, and although Lord Redesdale decided the case upon a review of all the circumstances of it, yet he (as Lord Rosslyn in the last case) relied upon there being no specific, disposition of the residue. Mrs. Burgess being possessed of personal property of inconsidera- ble amount, and of real estate of some value, first devised all her right, title, and interest in some of the latter to trustees, for the uses after mentioned. She then directed the trustees to sell those lands, and to apply the proceeds in 'the following manner: First, she de- sired her funeral expenses and debts to be paid out of the purchase money ; then particular sums to certain creditors of her late husband, (c) Ante, p. 465. (b) 3 Ves. 103. (c) 2 Scho. & Lefroy, 538. 543. -vid. infra, Chap.- XXIV. sec. 2. div. 3. 468 Exoneration [Cn. XII. She proceeded to give general legacies, including 20Z. to each of her executors for their trouble,*" the said several sums to be paid by her executors and trustees out of the money to arise by sale of the lands," and the purchase money that remained after payment of her lega- cies, and the expenses of her will, she directed to be divided into four parts, giving the shares in different proportions to several per- sons, and ordering " the same several legacies to be paid by her ex- ecutors, so soon as they could dispose of the estate." She then appointed her trustees executors and trustees of her will. Lord/?e- desdale was of opinion that the personal estate was the primary fund to satisfy those demands ; observing, " the construction put upon such words standing singly, had ordinarily been that for payment of debts, funeral expenses, and legacies, the real estate should be applied in case the personal should not be sufficient ; the latter be- ing the primary fund applicable to the discharge of those obligations. That it was generally considered a testator did not mean to charge a fund which was not applicable to those purposes by law, without a direction so to apply it, except in aid of the estate, " which by law was so applicable, unless there were expressions strong enough to show a different intention." Without considering the circumstance of there being no specific disposition of the residue, this case seems to be governed by Lord Thurlow's determination in ^ncaster v. Mayer. The testatrix ap- pointed her trustees also executors^ blended the two characters, directed the payments to be made by them as trustees and executors. " The appointment of the trustees executors (said Lord Redesdale) gives them prima facie the personal estate for the purposes of her will, and their duty as executors is to pay her debts, funeral expen- ses, and the probate out of that fund, the receipt of which charges them as debtors to the creditors of the testatrix.(d) But to avoid mistake, it is to be observed, that neither of the last two cases meant to determine, where a testator has exempted his personal estate from debts and legacies, and. directed them to be paid out of his real property, making no disposition of the personalty, that his executor or next of kin should not have the benefit of the exemption. They only import, consistently with Lord Eldon's ob- servations in. Milnes v. Slater, (e) that, when a testator has not in words exempted the personal assets from debts and legacies, but his intention to do so is to be collected by inference from the whole of his will, and there is no disposition of the personal fund, except in the appointment of an executor, the inference from that nomination will not, of itself, be considered sufficient to exonerate the personal estate, whether the executor take it beneficially or as a trustee for the next of kin ; because, to the office of executor the payment of debts and legacies is naturally attached ; and, as the executor's legal right is merely to the surplus, after those obligations have been sa- tisfied, the testator might have meant nothing more in the nomina- tion of executor. But where a testator has expressly exempted his personal property from debts and legacies, created another fund for discharge of them, and made no disposition of his personal estate, d) 2 Scho. & Lefroy, 546. 547. and see 1 Meriv. 227. and infra t sub-div. 2. <) 8 Ves. 305. SECT. III.] of the Real Estate. 469 except in naming an executor, then, whether he take that fund bene- ficially or as a trustee for the next of kin, he or they will be entitled to it, exonerated from those payments ; for unquestionably a testa- tor has the power to make such an arrangement, in relation to his estates, as between his real and personal representatives. Following the current of preceding authorities, Lord Jllvariley decided the case of Brummell v. Prothero,(f) which was to the following effect : Mr. Bkwitt devised his real estates to a trustee, first to pay all his debts. He then gave two annuities out of the property, and, subject to and charged with them, he devised the estates to his brother Edward in strict settlement, with remainders over. Last- ly, he bequeathed to his same brother all his monies, goods, chat- tels, rights, credits, personal estate, and effects, and appointed him sole executor. Lord Alvanley determined* that the general rule must prevail, and the personal estate be first applied in discharge of debts. The reader will have remarked the coincidence of the last case with the preceding authorities of Hareivood v. Child and Haslewood y. Pope, before stated, (g) in Lord Mvanley considering a bequest of all a testator's property, to the person named sole executor, equally residuary, as if it had been expressly given by the term residue, and therefore as affording no inference of an intention to exempt it from debts. Tait v. Lord Northwick(h) is another case decided by Lord Ross- lyn on the present subject, and in conformity with the general rule. There real estates were vestedj by settlement, in persons, in trust to pay debts, and subject thereto, and to some other charges, they be- came disposable by the appointment of Richard Middleton, thetesta- tor, who appointed them, and also devised other estates of his own to three trustees, in trust by sale, mortgage, &c. to pay debts owing to a particular creditor, and all his (the testator's) other debts with interest, and to defray the interest of money to be borrowed out of the rents, and to apply the surplus rents in reduction of principal. The trustees were directed, after fulfilment of these trusts, and pay- ment of the costs attending their execution, to convey the estates un- sold to the uses and upon the trusts of the settlement ( after payment of the debts, &c. thereby directed to be discharged,) which were to the testator in tail, with remainders over. After giving to each trustee a legacy of 100J. the testator bequeathed the residue of his personal estate equally between his two sisters, and appointed two of his trustees executors. Lord Rosslyn was of opinion, that the personal fund was primarily liable to pay the debts. His Lordship observed, " that charging the real estate ever so anxiously for the discharge of debts would not of itself exempt the personal," a proposition clearly established by the preceding cases. (i) And it is worthy of notice, that his Lordship thought neither the gift of the residue nor the direction for payment of the expenses of per- forming the trusts, as being only applicable to the real estates, was sufficient, in concurrence with the charge, to show a clear and satis- (/) 3 Ves. 111. (g) Ante, p. 464. (A) 4 Ves. 816. (i) See Aldridge v. Lord Wallscourt, 1 Ball. & Beat 312, . VOL,, i. 3 O 470 Exoneration [Cn. XII. factory intention in the testator to exonerate the personal estate from its legal obligation. The last authority seems to have been the basis upon which Lord Alvanley decided the case of Hartley v. Hurle,(k) which is a de- termination, that where debts, legacies and funeral expenses are charged upon the real estate, and the personal property is bequeath- ed with the real, as " rest and residue not otherwise disposed of," the personal estate will not be exonerated from the payment of debts. His Lordship considered such a disposition to import nothing more than a gift of what was not before given, not as a specific legacy, but a bequest of what might have been omitted The case was this : Mr. Allen directed all his debts, funeral, and testamentary expenses to be in the first place fully satisfied. He then gave to his wife specific legacies of household goods, &c. and money, and gave and bequeathed his real estate and money in the funds to trustees, upon trust, " out of the rents and dividends to pay his debts, funeral, and testamentary expenses, and the several lega- cies after mentioned," which he proceeded to enumerate, and then gave general legacies ; and out of the same rents and dividends, an annuity to his wife for life, bequeathing the surplus rents and divi- dends ip trust, that his trustees should pay them into the proper hands of his daughter Ann, until his grand-daughter attained twenty- one or married ; on either of which events, the grand-daughter was to receive an annuity of 3001. for life out of the rents and dividends, and the residue of them was to be paid into the hands of his daugh- ter for life, remainder as to the lands themselves, and the stock, to his grand-daughter absolutely. The testator then declared, that the leaseholds should not be sold, and gave the residue of his real and personal estates, " not by him otherwise disposed of," to his daugh- ter absolutely, and appointed her and the trustees executors. Lord Alvanley was of opinion, that the personal estate was the primary fund for the payment of debts. In the last case we perceive, that neither the direction to pay the debts, &c. out of the rents and dividends of the real and funded property, nor the gift to the daughter of the personal residue, was sufficient to counteract the general rule. In order to have such effect, the inference of the testator's intention to exonerate his per- sonal estate ought to have been so dear as to have left no doubt upon his Lordship's mind, which was not so in the present case ; his Lord- ship observing, that he found no case in which a testator, after beginning with a direction for the payment of debts and funeral ex- penses (which naturally fall upon the personal estate and are to be paid by the executors) has created a fund for his debts and funeral expenses, and then given the residue by such words as those before stated (for the residue was not settled to the daughters separate use,)(l) and it had been held, that he meant that trust fund as any- thing more than auxiliary, if the personal estate should be deficient; and with that impression his Lordship said, he was not at liberty to determine in favour of the residuary legatee. With respect to charging the funeral expenses upon the real estate, (fc) 5 Ves. 540. and see 1 Meriv. 236. (0 See Greene v. Greene, 4 Mad. 148. stated infra. SECT. III.] of the Real Estate. 471 it will have been remarked in the perusal of the preceding cases, that .in some of them those expenses have been charged upon that fund, and not in others; and yet the determinations have been uni- form against the exoneration of the personal estate. The attention of the reader is drawn to this observation, since in the authorities which will be stated under the second subdivision of this section, it will appear that such a charge, in concurrence with other cir- cumstances, has had importance attached to it, in exempting the personal estate from debts, &c. upon the reasoning, that as funeral expenses particularly attach themselves to the personal fund in the hands of executors, the testator, by transferring that duty from them to the trustees of the real estate, must have intended to give the whole of the personalty to the legatee, specifically discharged from every obligation to which it was naturally liable. But that such a charge of itself will not have that effect, the preceding authorities and the case which next follows, clearly prove; such charge neverthe- less will be entitled to consideration in the scale of circumstances attending each case. In Brydges v. Phillips, Sir W. Grant, in reference to this subject, observed, " that in that case there was no provision for the payment of funeral expenses, an omission which in some of the late cases had full as much weight given to it as it deserved, and it was perhaps true, as stated by Lord Hardwicke,(m) that it was more a phrase of form than indicating a settled intention, and that either the insertion or omission of it meant little."(n) The case of Brydges v. Phillips(o) was to the following effect: Mr. Brydges having a daughter about four months old, devised all his real estates not included in his marriage settlement, and since purchased by him, to trustees, to sell a sufficient part of them and apply the produce, in the first place, in payment of debts (except a mortgage and charge,) and in the next place, to raise and pay 1000J. to his half sister, and 4000/. to his wife, to whom he devised for life his unsettled estates, and also his settled estates, if he died without leaving issue male, remainder to his daughter in tail, remainder to his two sisters in fee. Ke then settled, as heir-looms, articles of personal property for the use of his wife and the persons to succeed to his real estates ; and, after giving to his father an annuity for life, which he charged upon the unsettled estates, and legacies to servants and to his trustees, which he directed to be paid out of his personal estate, not settled as heir-looms, he bequeathed the residue of his personal property to his dear wife, whom with his trustees he ap- pointed executors. Sir W. Grant, M. R. determined, that the per- sonal estate was the primary fund for paying the debts. Although, in the last case, there was ample room to conjecture, that the testator intended his wife to take the personal estate free from incumbrance, in the nature of a specific legacy,(p) yet the in- tention was not so plainly shown as to authorize the Court to dis- place the general rule. Minute criticisms were afforded, which his Honour (in imitation of Lord Thurlow in Jlncaster v. Mayer,(q) (m) 2 Atk. 626. fn) 6 Ves. 570. (o) Ibid. 567. (/z) Where such a bequest failed to exempt the personal estate, see Dolman v. Smith, ante, p. 464. Tait v. Lord Northwick, ante, p. 469. Hartley v. Hurle, ante, p. 470. Tower v. Rons, infra, p. 473. and see infra, sub-div. 2. (q) Ante, p. 466. 472 Exoneration [Cn. XII. considered to be more liable to mislead than to assist in discovering the intention of the testator. It was the opinion of the Court, that neither the manner in which the real estates were given and charged, nor the mode in which the residuary personal fund was given, viz. after the bequests of the heir-looms and legacies (his Honour con- curring in opinion with Lord Rosslyn in Tait v. Lord Northwick,)(r) was sufficient to exonerate the personal estate. The next case determined by the same learned Judge, is an autho- rity that, if a testator expressly charge his personal estate with debts of a particular description, viz. with those by simple contract, and then bequeath that fund, it will not be discharged from debts, &c. generally, for although there arise a presumption from such a partial charge, that other debts were meant to be excluded and cast upon the real estate, yet that presumption is not so clear and conclusive as to render the general rule inapplicable. It alone does not reach the standard of plain intention required by Lord Thurlow in Ancaster v. Mayer. Accordingly in Watson v. Brickwood,(s) Mr. Watson devised his real estates to a trustee, &c. but beneficially to his two nephews, William Wood and Richard Baker, for life, with remainders over. He then gave legacies to his nieces, payable at the end of a year* after his death, and bequeathed all his goods, chattels, personal es- tate, and effects, not thereinbefore disposed of, to his nephew Wil- liam, "he paying thereout all legacies, funeral expenses, and simple contract debts." The testator then noticed his being indebted by mortgages and bonds, for money borrowed to pay for some of the estates he had purchased, and directed that those debts should be paid by the devisees of his real estates in equal proportions, in the manner he prescribed. After giving an annuity to a servant out of his real property, he appointed his -nephew William Wood sole ex- ecutor. It is observable, that the will does not charge the real estate with any of the debts ; but the testator added a codicil, by which, after appointing a trustee in the place of the one named in the will, he empowered the new trustee, " in order to raise money for the payment of all his debts and legacies, to mortgage, with the ap- probation of the taker for the time being of his estates, a competent part of his freehold estates." Sir W. Grant was of opinion, upon the authority of Tait v. Lord Northwick,(t) that the personal estate was not exonerated in the present case. The remarks which occur, on perusing the last case, are these ; that the charge of debts generally upon the real estate, by the codi- cil, seems to destroy the implication that in charging the personalty by his will with those by simple contract only, the testator intended to exempt it from those by specialty. The manner in which the real estate is charged seems to prove this. It is directed to be mort- gaged in order to raise money to pay all debts and legacies, i. e. to raise money, if necessary, in aid of the personal estate. That the real estate was to be the fund first liable to all those demands could not have been intended, since the personal estate was expressly given, subject to simple contract debts and all legacies. If then the real estate was clearly auxiliary to answer those demands, it would (r) Ante, p. 469. (s) 9 Ves. 447. (t) Ante, p. 469. SECT. III.] of the Real Estate. 473 have been too much for the Court, under the general charge upon the latter fund, to have made it primarily liable to the debts by specialty. Sir William Grant's attention was again called to the present subject in Tower v. Lord Rous,(u) in which his decision was in conformity with the several authorities before stated. In that case Mr. Tower devised his real estates, subject to the mortgages upon them, and to the payment of his debts and legacies to trustees for a term of 1000 years, remainder to .his eldest son for life, remainder to the son's male children successively in tail male, with remainders over, directing his leasehold property to be settled in the same manner as his freehold estates, so far as the law would permit. The trusts of the term were to raise a portion for his eldest daughter, and to sell part of his freehold or copyhold estates to dis- charge mortgages, " and all his debts and legacies," and the testator declared, that, if he were entitled to any money as personal estate, charged upon any part of his real property before devised, it should be extinguished for the benefit of the persons entitled under the limitations in his will. The testator, after giving to his wife a legacy, and half of his plate and linen at #., and the whole of his furniture at B., the -best of his carrriages, two coach horses, and two saddle horses, bequeathed the residue of his personal estate to such one of his sons, as should at his death be his eldest son, and entitled to the possession of his devised freehold estates ; and appointed his wife trustee, and the plaintiff his eldest son, executor. Sir W. Grant de- termined that the personal estate was first applicable to the satis- faction of debts and legacies. The grounds of the decree appear to have been the following : 1st, Because there was nothing particular in charging the real es- tate, Jior in declaring the trusts of the term, nor otherwise denoting the testator's intention to make the real property the primary, still less the exclusive fund for paying the debts and legacies : 2dly, be- cause the bequest of the personal estate was no more than the ordi- nary residuary clause, commencing with the word "residue :" 3dly, because the residuary legatee could not take specifically what re- mained of the personalty, after separating the particular articles given to the widow, in consequence of the funeral and testamentary expenses to which it was liable, not being charged upon the real estate; an omission and liability that afforded &n inference of the testator's intention not to give the personal fund as a specific legacy ; and lastly, because, instead of the intent appearing to increase the personal estate, at the expense of the real, the contrary seemed to be the object, from the direction for the extinguishment of any per- sonal demands the testator might have upon the lands for the benefit of the devisees, as also from the personal estate not being given to any one by name, but to such son of the testator as should be the eldest at his death and entitled to the real estates, a circumstance, which showed no special predilection for the- person of the casual legatee, and therefore no particular motive for such a legatee taking the residue exempt from the natural charges to which it was liable. All these circumstances were in corroboration of the general rule, (u) 18 Ves. 132. 474 Exoneration [Cn. XII. according to which, debts and legacies were to be paid out of the personal estate in the first, instance. The reader will have discovered throughout the long line of cases which have been considered, how uniformly they support the rule of law, which subjects the personal estate, in the first place to the dis- charge of debts, legacies, funeral and testamentary expenses. We have seen that a mere bequest of the residuary personal estate, by the term " residue," or by the words " all my personal estate,"(x) or even after previous sums or articles were given out of it ;(i/) and although the residue bequeathed, as of personal property " not otherwise disposed of"(2r) were not singly sufficient to exempt that fund from its natural obligation to pay debts, &c.: also, that whether the real estate be charged with, or be given in trust to pay, debts and legacies, or a term of years be created for those purposes, still the personal estate must be first applied. (a) We have further seen, that neither the devise for payment of debts, &c. out of the rents of real estates ;(&) nor the mere charge of funeral expenses upon that fund,(c) or an express charge of only some of the debts upon the per- sonalty,^) will exempt the latter 'fund from its legal liability. Yet a testator may, if he please, give his personal estate as against his heir, or any other representative, discharged from the payment of his debts and legacies. The only question therefore is, what is the mode of expression sufficient to exempt that fund, when by the rule of law it is first liable 1 ? It was laid down in the case of Fereyes v. Robertson,(e) that express words of exemption were necessary ; and the same doctrine was asserted in Dolman v Smith.(f] But this sound rule has not been adopted in modern cases. Lord Thurlow considered,' that " declaration plain," or "manifestation clear," upon the face of the will, was. to stand in the place of express words,(g) terms explained by Lord Mvanley to mean " such an inference as left no doubt upon the mind of the person, who was to decide the question. "(A) It is now settled that express words to .exonerate the personal estate are not required, but that the fund will be exempted, if the intention of the testator in its favour can be collected from a sound interpretation, put upon the whole will.(i) The result is, that what the law had originally settled beyond the possibility of doubt and controversy, is now left without rule or standard to the arbitrium of every Judge, whose talents and perceptions being unequal, una- nimity of opinion caniiot be expected in all the determinations upon the present subject. It is not then one or two circumstances which will have the effect of exonerating the personal estate ; but if all the circumstances united leave no doubt in the mind of the Judge, (he paying proper respect to preceding authorities,) that the testator in- tended to exempt his personal estate, that intention will be effec- tual. It is therefore proposed to consider the cases, in which the personal estate was exempted in the first place from satisfying debts, &c. under the following title : . 2. When the real estate will be considered the primary fund for the payment of debts and. legacies. (JT) Ante, pp 463. 469. (t/) Ante, pp. 464. 468. 469. 470. 473. (z) Ante, p. 470. (a) Ante, p. 466. (A) Ante, p. 470. (c) Ibid. pp. 467. 470. (rf) Ante, p. 472. (e) Bumb. 310. (/) Pre. Ch. 458. (,) 1 Bro. C. C. 462. (A) 3 Ves. 113. (0 4 Ves. 823. 9 Ves. 454. 1 Meriv. 219. 220. SECT. III.] of the Real Estate. 475 The question in each particular case of exemption resolves itself into this : " Does there appear from the whole testamentary disposi- tion taken together, an intention on the part of the testator so ex- pressed, as to convince a judicial mind, that it was meant, not merely to charge the real estate, but so to charge it, as to exempt the per- sonal 9 For it is not by an intention to charge the real, but by an intention to discharge the personal estates, that the question is to be decided. (k) By this test we shall examine the following cases, and endeavour to distinguish such as are properly decided from those which are not so determined. In Waise v. Whitfield,(l) the testator devised lands to trustees to sell for payment of debts and legacies, and bequeathed to his wife the residue of his personal estate, to whom he also gave 600Z. out of the produce .from the sale of the trust' estate. Lord Harcourt, C. was of opinion that the personal fund was exonerated from the above payments. His Lordship's judgment was founded upon the additional gift of the 600Z. as affording the strongest presumption, that the testator intended to give his wife the whole of his personal estate, not con- sidering the amount of that fund sufficient for her. The discharge of the personal estate in Adams v. Meyrick,(m) seems to have been founded upon the supposition, that the resi- duary personal estate, being preceded by a specific bequest of seve- ral chattels, the residue was also intended to be specifically given to the wife exempt from debts and legacies. But since such a resi- duary disposition may be equally considered, as importing nothing more than a bequest of the personal estate after satisfaction of debts and legacies, -such a gift of the residue does not raise that plain and satisfactory inference of intention to discharge that fund, as is required by all other cases for the purpose of exempting the per- sonal assets from their legal obligation. () This case therefore does not seem to be authority at the present time, that such a mode of bequeathing the residue will alone repel the general rule, although it may have that effect, when explained by the context of the will.(o) The same remarks apply to the cases of Wainright v. Bendlowes, ( p) Jlnderton v. Cooke^q) and Bicknel v. Page,(f) which appear to have been decided on the like principle as the last case. Upon this point Lord Eldon observed, " all he could say upon it, was, that it was a circumstance deserving of just so much weight and no more, in the mind of any individual judge, as could at the time bring himself to consider it to be fairly entitled to."(s) If then a residuary bequest preceded by legacies of specific chat- tels be insufficient of itself to discharge the personal estate from debts and legacies ; it seems to be a natural consequence, that, where the personalty is given, without such exceptions, out of it, it will not be exonerated in the hands of the residuary legatee from debts, &c. ; yet there are cases to the contrary, such as Kynaston (k) I'Meriv. 230. (/) 8 Vin. Abr. "Devise," 437. pi. 19. (m) 1 Eq. Ca. Abr. 271. pi. 13. (n). See ante, p. 4/1. and the references there in note (/*.) (o) 1 Meriv. 224. (/*) 2 Vern. 718. Prc. Ch. 451 5. C. (7) Cited 1 Bro. C. C. 457. (r) 2 Atk. 79. (s) 1 Meriv. 236. and see Tower v. Row, ante, p. 473. 476 Exoneration [Cu. XII. v. Kynaston,(t) Holliday v. Bowman,(u] and Gaskill v. Hough,(x) which appear to be over-ruled by other authorities. (y) Under this head may be classed the case of the Attorney General v. Barkam,(z] in which the testator, for the performance of his will, and payment of all his debts, devised his real estate. And, as to his personal property, he gave it to his executors, to discharge his funeral expenses ; which, if deficient for that purpose, he directed to be aided by the application of the* first rents and profits of his real estate by his executors until all his debts, legacies and funeral expenses should be paid ; and if there were any surplus of his per- sonal estate, his executors were to pay it to his wife. The Court was of opinion, that the wife took the personal estate exonerated from debts. The effect of the will just stated, appears to be simply this : The testator considering that his personal estate might be insufficient to pay all his debts and funeral expenses, charged his real estate with the former; providing, that if the personal fund should be deficient to pay his funeral expenses, they should be satisfied out of the rents of his lands, which he also subjected, in that event, to all his lega- cies, debts and funeral expenses ; and if there happened to be a surplus of his personal estate, it was to be paid by his executors to his wife. It seems, therefore, that what was given to the wife \vas a mere residue, after payment of debts, legacies, and funeral ex- penses, and that the real estate was only intended as an auxiliary fund, or at least that the contrary intention is not so plain and manifest, as required by modern cases, to discharge the personal estate by implication. (a] In Stapleton v. Colvile,(b} the testator gave to his wife for life his real estate, charged with two annuities and a legacy empower- ing her to raise, by- mortgage or sale, sufficient money to pay his debts. And, after reciting the great satisfaction he had of his estate having continued so long in his name and family, and the great desire he had to perpetuate, so far as he could, his name and estate; he devised all his real estate, after his wife's death, to his nephew for life, remainder to his first and other sons successively in tail, &c. upon condition of their taking and using his name and arms for ever. At the conclusion of the will, the testator be- queathed all his goods, chattels, and personal estate to his wife, and appointed her executrix. Lord Talbot decreed, that the wife was entitled to the personal property discharged from debts. His Lordship founded his judgment upon an inference of the tes- tator's intention to give the personal estate specifically to the wife, presumed from his giving authority to her to dispose of the inhe- ritance of the real estate to pay debts, in order to secure to her the full enjoyment of her interest for life in it, and of the personal estate absolutely free from all charges. This is certainly very flimsy reasoning, and, if deemed sufficient to exonerate the per- sonal estate, it would destroy the authority of the cases stated in (0 Stated 1 Bra C. C. 457. in a note. (u) Cited 1 Bro. C. C. 145. fir) Cited 3 Ves. 110. (y) See ante, pp. 463. 464. Sam-well v. Wake, ante, p. 465. and Lord Thur- iotv's observations, 1 Bro. C. C. 466. (z) Cited Forrest. 206. (a) See Tower v. Rous, 18 Ves. 132. and ante, p. 473. (6) Forrest. 202. SECT. III.] of the Personal Estate. 477 the first subdivision of this section. Lord Thurlow, in commenting upon the case, observed, that the wife was executrix ; and, exclu- sive of the context of the will, with regard to the option given her to charge either fund, there never was a stronger case against charging the real estate; for the testator gave the whole real estate to his wife, and. to be charged with debts ; he wished its continu- ance in his name and family, and yet charged it with payment of his debts. (c) That he meant to cast his debts upon the lands, in the first instance, was inconsistent with his anxiety to preserve his estate in his name and family. And Lord Mvanley, in allusion to this case, remarked, that " the circumstance laid hold of by Lord Talbot, viz. of the executor having the power to raise so much out of the estate as would be sufficient for the debts, did not satisfy his tnind."(d) This case may, therefore, be considered, as not afford- ing that clear indication of the testator's intention, which is suffi- .eient to exonerate the personal estate from its legal obligation. Lorq Hardwicke, in Walker v. Jackson, thought the circumstance of the personal estate being expressly given by codicil to the execu- trixes, who were trustees of the real estate charged with debts, legacies, and funeral expenses, was sufficient to exonerate the per- sonal fund. But, when it is remembered that the fact of trustees being also appointed executors, has been generally considered strong evidence against the exemption of the personal estate ;(e) that the gift of the personal estate to executors instead of raising an inference of intention to bequeath it discharged from debts, &c. seems to afford a contrary implication, (/) and that, at the utmost, the disposition could only have the same effect, as if it had been made to other persons ;(#) the opinion of Lord Hardwicke may be considered as open to objection. In that case, (h) an estate in the county of Lincoln was given by the testator, to be sold by his executrixes, for the payment of debts, legacies, and funeral expenses ; and he then appointed executrixes. In consequence of the same persons being appointed executrixes and trustees, Lord Hardwicke admitted, that, if the testator had proceeded no further, the personal estate would have been primarily liable to the debts, &c.; but then followed the codicil, giving -to the executrixes all the personal estate not before devised. Upon this, his Lordship observed, that " a stronger circumstance could not be than the testator republishing his will and an alteration from what it was before ; and, unless it were construed to be his intention to exempt the personal estate in favour of the executrixes, the words would be fruitless and vain, and did no more in their .favour, than the will as it originally stood." He therefore concluded, that " these words could have no other signification than to exempt his personal estate." In Ancaster v. 'Mayer, before stated,(i) Lord Thurloiv criticised the above reasoning, remarked it was unsound, and that he entirely (c) 1 Bro. C. C. 466. (rf) 3 Ve.s. 110. (e) VideAncaster v. Mayer, 1 Bro. C. C. 454. ante, p. 466. and M'Cldland v. Shaw, 2 ^cho. & Lefroy, 538. 546. ( f) Grail v. Wnnethorfie, 3 Ves, 103. ante. p. 467. (g) See cases stated ante, p. 443. etseq. (A) 2 Atk.624. 1 Meriv. 222. (f) Ante, p. 446. VOL. I. 3 P H Exoneration [On. XII. concurred with the principle laid down in Stephenson v. Heath- cote,(k] viz. that the gift of the personal estate to a person who is appointed executor, is not to be considered as a legacy exempt from the payment of debts. (I) Lord Eldon, in Bootle v. Blundell,(m} thus stated his opinion as to the effect which ought to be given to the circumstance of the trustees of the lands charged with debts, dec. being appointed executors. " In Ancaster v. Mayer, as in many preceding cases, very considerable stress was laid on the cir- cumstance of the persons who were appointed executors, being the same to whom the real estate had been before devised as trustees. In other cases, this circumstaace is considered as less material; but the degree of weight, to which it is entitled, depends upon the whole of the will taken together; and, if a distinction is to be discovered from the beginning to the end of the will, between what they are- called upon to do in the character of executors, and what as trustees ; and, if he (the testator) direct them a,s trustees, to do that which is properly the duty of executors, this is a circumstance which deserves also to be attended to, in determining what is the manifest -general intention of the testator." In the case of Williams v. The Bishop of Landajf,(n) Lord Ken- yon considered the will to afford sufficient evidence of the testator's intention, to make his real estates the primary fund for the payment of debts, legacies, &c. There, Mr. Luther being seised of estates in the counties of Essex and Suffolk, settled his estate in Essex with great care, directing the devisees to take his name as they severally succeeded to the enjoy- ment of it. His Suffolk estate he vested in trustees, to sell, and apply the money in discharge of his debts, funeral expenses, and the several expenses therein mentioned; and within a year after his death, to set apart 4000Z. for the purposes therein expressed; and he de- clared, that if the estate should be insufficient for these purposes, the deficiency should be supplied out of the Essex estate. And, after giving specific and general legacies, the testator bequeathed att his ready money, &c. and all other his personal estate, not therein- before disposed of, to Sarah Williams absolutely. The question was, whether, under the above dispositions, the real estates were the primary funds for the discharge of debts, &C. 1 ? And Lord Kenyan determined in the affirmative. The principle of the decision appears to have been, that the cir- cumstance of having first devised one estate to pay debts, &c. and th'en another (which had been cautiously settled) if the former were deficient, before making any disposition of the personal property, and then disposing of the latter estate singly, and entirely, mani- fested a sufficiently clear intention that the real estates were designed to be charged with debts, &c. in preference to the personal estate, so as to entitle the residuary legatee to the whok'of the latter fund as a specinVlegacy, exonerated from those demands; aright, which was not altered by the testator afterwards disposing of the Suffolk estate, since his Lordship held that the Essex estate must be applied and exhausted, before the personal was to' be resorted to. (A-) Stated 1 Bro. C. C. 466. and 1 Eden-. 38. (i) 1 Merlv. 224. (7rt) 1 Meriv. 227. and see M'Clelandv. Shaw, stated ante, p. 467. (n) 1 Cox. 254. SECT. III.] of the Personal Estate. 479 The decision of the same Judge in Webb v. Jones,(o] does not- appear to be so well founded, as that in the preceding case ; for there, real estates were devised to trustees to sell,*and after payment of debts, legacies, &c. in trust to pay half of the net proceeds to Ji. and to invest the other moiety, on security, and apply the interest for the benefit of certain persons until they attained the ages of twenty-four; and then to divide the capital among them, -but with benefit of survivorship upon the death of any before those periods. And the testator declared, that if all those persons died under twen- ty-four, " the moiety should sink into, and be deemed part of the residue of his personal estate ;" which residue he bequeathed to two individuals in common, in the usual manner, and not in the nature of a specific legacy. Lord Kenyan held, that the personal estate was exonerated from the debts, &c. in consequence of the direction, that the residue of the purchase money of half of the real estate was to be added to the personal; a circumstance, which his Lordship conceived to be incompatible with the idea, that the personal estate should be applied in the first instance. It seems to have escaped the observation of his Lordship, that the real proceeds being made part of the personal estate, must be sub- ject to the same rule of construction .as a bequest of the personal fund itself; which, being given as a general residue, afforded no in- ference of the testator's intention to exempt it from its legal obliga- tions. The criticisms of Lord fiedesdale upon this case settle its degree of weight and authority. " Except Webb v. Jones, (said his Lordship,) there is not, I apprehend, a single case, in which it has been held that personal estate was exempt from payment of debts, &c. without express words for the purpose; except where it has been given as a specific legacy; for, if it be given in terms, which do not imply that it was intended as a specific legacy, it is not held to be- exempt -from the charges, which the law imposes on it. Many cases have gone upon nice distinctions of the word "residue," whether it meant residue, after payment of debts and legacies, or residue, after taking out certain specific parts. But every specific legacy is exempt from debts, if there be a 'sufficient fund of any kind liable to them. For instance, if part of the personal estate be given as a specific legacy, and the real is left to descend to' the heir,, the per- sonal not specifically given, is first- applied; but the specific legatee is entitled to have the debts, which bind the heir, satisfied out of the real estate, so far as it will extend. The ground, therefore, of all the cases, except Webb v. Jones, has been, that the terms of the disposition, contained in the will, were either express, ojc such as to raise a presumption, that the testator meant to make the personal estate the subject of a specific bequest; and, therefore, not liable to debts, because specifically given as a legacy. Except that case, I know of none, .where the personal estate, not given as a specific legacy, has been held exempt from the charges the law imposes on it, without express words denoting the intent.(ja)." But when the personal fund is intended to be given as a specific legacy, it is not easy to determine, and is a question, upon which (o) 1 Cox. 245. 2 Bro.' C. C. 60. S. C\ ( //) 2 Scho. & Lefroy, 544. Exoneration [Cn. XII. Judges have differed in opinion. In Burton v. Knowlton,(q) Lord , Ui-nnley decided, that the real estate was primarily liable to debts upon these grounds; that the funeral expenses being charged upon the lands, and the residuary personal estate given to the executor beneficially, in default of appointment by the testatrix, (he not being a trustee of the. real ;) and the personal estate, although given in the form of a residue, being, as he conceived, connected with preceding specific dispositions, were sufficient denotations of her intent to ex- onerate the personal fund, and to give it as a specific legacy* Mrs. Cockell devised her freehold, copyhold, and leasehold estates to two trustees, in trust to make immediate sale, and to discharge with the proceeds all her debts and funeral expenses, also to invest the surplus in stock, and to apply the dividends, and the rents of her unsold estates for the benefit of Mr. Welch for life, remainder to her heir at law ; to whom she gave several articles of personal property. She then gave legacies ; and 50iL to each trustee for his trouble, which she directed to be retained out of the trust premises ; and after giving other legacies, the testatrix bequeathed the residue of her personal- estate, not before specifically disposed of, to Mr. Welch, in trust to pay the same a* she should appoint, and in default of ap- pointment, she gave it to him for his own use, and appointed him executor. Upon the grounds before stated, Lord Mvanley deter- mined that the real estate was the primary fund for the payment of debts. He remarked, that, although the words " funeral expenses" comprised in this trust, occurred in some of the cases, and were held not to have any considerable weight : yet that was, where the trust fund was given to the executors, to whom the personal estate was afterwards bequeathed ; and he thought that, where the trust fund was given to trustees in such general words, who were not the ex- ecutors upon whom the funeral expenses would naturally fall, it did afford a considerable argument, that the testatrix did not mean the personal estate to be the fund for all those charges, which naturally fall upon it. His Lordship also considered, that the residue was not given to Mr. Welch as executor, but beneficially ; and relied upon the case of Walker v. Jackson, before stated. He also remarked, that the word " residue," being coupled with the expressions " not specifically bequeathed," showed the testatrix's meaning to be, not a residue after payment of debts, but after such parts of the personal estate as were not specifically given, i. e. in allusion to what she had before given to her heir, or to leasehold estates which she had be- queathed to the trustees. This last decision was not satisfactory to Lord Rosslyn : (r] nor, as it seems, to Lord Eldon, who said he was not sure that the intention to exonerate the personal estate was quite so clear as Lord Mvanley took it to be.() If indeed it is settled, as it appears to be, that there is no difference whether the personal estate be given in express terms, or not, to a person who is named executor, since, as executor, he must in either case take it subject to the claims of individuals who are beneficially interested,(f) notwithstanding Lord Hardwicke's r ? ) 3 Yes. 107. (r) See 4 Ves. 823. () 1 Meriv. 229. (0 Ibid. 226. etvidejincasterv. Mayer, 1 Bro. C. C. 454. Steti/iensonv. Heath- coate, 1 Eden, 38. 1 Meriv. 224. and ante, p. 466. SECT. III.] of the Personal Estate. 481 opinion in Walker v. Jackson: and, if the intention to exonerate the personal estate from its being given as residue, " not before specifi- cally disposed of," may be considered ambiguous, (w) (since probably those words may have been inserted without particular meaning a*s mere customary expressions ;) the case will amount to no more than an anxious charge of debts and funeral expenses upon the real es- tate, which has been shown to be insufficient to discharge the per- sonal fund. And with respect to the inference arising from the funeral expenses being charged upon the real estate, Lord Hard- wicke and Sir W. Grant are authorities for presuming, that no great weight is to be attributed to that circumstance. (x) Lord Jllvanley, upon a subsequent occasion, (y) expressed his satisfaction with his decree ; and the case, in consequence of what has fallen from Lords Eldon and Rosslyn, is an instance of the uncertainty which prevails upon the present subject. The following is an authority in which almost every circumstance occurred which had been the subject of judicial observations in pre- ceding cases, and upon which different Judges had formed different opinions as to their effect singly to exonerate the personal estate. Lord Eldon, after sound criticism upon every part of the will, deter- mined, that the personal fund was primarily discharged from the payment of debts, &c. In Bootle v. Blundell,(z) the case alluded to, the testator ordered his funeral expenses to be paid, and bequeathed to his two daughters legacies to be paid by his executors, and directed his said funeral expenses and legacies to be paid out of the money he might have at his death at Ince or the Liverpool bank, or due to him from the bank at the latter place, and out of rents and fines which should be then owing to him ; and he gave the surplus of those funds among his children equally ; to daughters for their separate uses ; concluding that part of his will in observing, that he had already disposed of certain sums and securities for money, which he lately had by him ; thus referring to the funds above appropriated, and making them the primary funds for the discharge of funeral expenses, and the sole funds for payment of those legacies. The testator then devised his manors of Lostock to trustees for five hundred years, to pay out of the rents and profits all his debts, and the legacies and annuities therein-q/er mentioned, or to be given by a codicil. He next gave legacies to his grandchildren, and 300Z. to each of his trustees for their trouble. He also bequeathed several annuities ; and, after declaring that his trustees and executors should not be answerable for losses, he ordered the expenses they might incur on that account to be charges on his Lostock estates, and to be paid out of their rents and profits, directing the term to cease after the completion of its trusts, and satisfaction of all the charges and expenses incident thereto. Here it is observable, that the legacies of 300Z. are given to the trus- tees qua trustees, and are solely payable out of the Lostock estates. And although the trustees are also executors (a circumstance relied upon in preceding cases as an argument against the intention to ex- empt the personal estate,) yet that argument is destroyed when it is (u) Ante, p. 470. (x) Ante, p. 470. and'see 4 Mad. 156. (y.) 5 Ves. 545. (z) 1 Menv. 193. 231. 482 Exoneration [Cn. XII. remembered that this testator never uses the- word " executors," but with reference to his personal property, nor the word " trustees," but in reference to his real estate. He has distinguished their offices, and treated their duties the same, as if his executors and trustees had been different persons. The circumstance also of directing the expenses of losses incurred " by his executors and trustees" to be paid out of the Lostock estates, raises a powerful inference of inten- tion to exempt the personal estate; for when it is considered that such expenses as were incurred by them as trustees of the real es- tate could not have been charges on the personal estate, and that those expenses are blended with such as might arise .from the office of executors, and the whole made charges upon the real property, it can scarcely be doubted but that it was meant to substitute the real in the place of the personal estate ; and if, as to these expenses, it tends to confirm other circumstances in the will, not of themselves sufficiently clear to exempt that fund from debts, &c.(a) The tes- tator then proceeded to declare, that, subject to the term and its trusts, the Lostock estates should go between his two daughters for their lives, with remainder to their respective children in strict set- tlement ; and he directed, that so soon as his debts and legacies were discharged, and security given to the trustees for payment of the annuities and expenses, satisfactory to the annuitants, and when all expenses in the execution of the trusts respecting the term and of his will should be fully paid, the person then entitled to the Lostock estates should be let into possession of them. The will contained a power to appoint new trustees, or a new trustee, who was to receive 300Z. out of the rents and profits of the estates com- prised in the term ; a material circumstance, since the trustee so to be appointed would not be an executoi' ; whence the inference that the 300Z. before given to each of.the trustees, who were also executors, were so given for their trouble a* trustees, and not as executors. The testator next proceeded to give his son other lands, called the Lydia estate, for life, with remainders over, which were neither charged with debts nor legacies ; and having thus disposed of his real estates, without making any bequest of his general personal pro- perty, the testator proceeded to make disposition of it , giving to his son for life, with remainders over, specific parts of that fund, consisting of curiosities, to go as heir-looms with the estates last devised, intending them to be preserved for public inspection ; a reason which accounted for their separation and exemption from debts, &c. without necessarily importing that the residue, which was afterwards given to his son, should be subject to those charges. The testator then gave to his housekeeper several specific articles of furniture, and other things, directing them to be removed by his executors with all convenient speed after his death, at the expense of his personal estate : a charge not necessarily, implying that the debts and legacies should also be paid out of that fund. The tes- tator next bequeathed to his son his .household furniture, wines, &c. and personal estate " not thereinbefore specifically disposed of, or which thereafter might be disposed of by him ;" a bequest, which, not being in the form of residue, and enumerating specific articles, (a) 1 Meriv. 239. SECT. III.] of the Personal Estate. 483 had been considered by some Judges, though not by others, as raising an inference of intention to exonerate the personal estate. But. Lord Eldon merely declared it a circumstance only to be taken into account in considering the contents of* the whole will. (6) The testator added a codicil to his will, directing that any expenses which might be incurred from attempts to disappoint his will in any of its provisions should be paid out of the Lydia estate, devised to his son for life ; and he created a term of 1000 years in it for that pur- pose : a direction showing, as previously in the will, an intent to exonerate the general personal fund, in ordering payment, out of the real estate, of expenses which the personal was primarily liable to discharge. Under all the circumstances, Lord Eldon expressed his conviction, that the testator intended to exempt his general per- sonal estate from the payment of his debts ; and so decreed. The dispositions in the following will induced Sir John Leach, V. C., to determine that the real estate was primarily liable to the satisfaction of debts, &c. In Greene v. Greene,(cj the testator began his will in. giving to his wife, for her own and sole use,(d) all his. ready money, securities for money, goods, chattels, and other personal estate and effects, except such parts of it as he by his will or a codicil should specifi- cally dispose of. He then devised -his real estates, subject to his debts and -funeral expenses, to trustees, in trust to sell, and out of the proceeds to pay his debts, funeral expenses, and the costs of proving his will ; and to lay out the surplus on securities, and pay the interest to his wife for life; and to distribute the capital, after her death, among her children by the testator, as therein mention- ed ; and he appointed his wife and the trustees executors. The Court held, that the personal estate was exonerated. The prominent features of the last case appear to be, the mode in which the personal fund is -given to the wife, and the manner of devising the real estate to the trustees ; viz. subject to debts and funeral expenses. The personal estate is first bequeathed, and disposed of as a whole. So much only is to be deducted, as the tes- tator may afterwards specifically -bequeath : a circumstance entitled to some consideration, in discovering the testator's intention in re- gard to exempting the personal fund ; and it seems to raise no slight inference in the. present case, that he meant his wife to take the whole personal estate as a specific legacy. The weight to be attached to this single circumstance is increased by the testator directing his funeral expenses and the costs of probate to be paid out of the real estate ; obligations naturally falling upon the per- sonal fund. These circumstances seem, to have convinced the Court of the testator's intention to exempt his personal estate. Sir John Leach thus expressed himself: "The direction that the trustees, who form only a part of the executorship, should, out of the produce by sale of the real estate, pay all debts and expenses, and after payment thereof invest the surplus for the benefit of the wife for life, with remainder to the children, when coupled with (6) See ante,.]). 475, (0 4 Mad. 148. (d) A limitation considered of importance by Lord Aivanley. See Hartley v. Hurle, ante, p. 470. 484 Exoneration . [H. XII. the circumstance, that the devise to the trustees is expressly made subject to the payment of debts and funeral expenses, and with the gift to the wife, for her own sole and absolute use, of all the testa- tor's ready money, &c. does appear to me to convey a clear intima- tion of intention, not that the real estate should be auxiliary to the personal, but that the real estate should directly, and at all events, be applied as the primary fund for payment of the debts, funeral expenses, and the costs of the probate ; and that the wife should take the personal assets exempt from those charges."(e) The same Judge made a similar decision to the last upon nearly the like dispositions, in the case ofMichell v. Michell.(f) After having examined the preceding line of cases, rendered con- tradictory and difficult by a departure from the wholesome rule which required express" words to exonerate the personal estate, the reader can scarcely avoid concluding, that the uncertainty in ques- tion on the present subject is such, as to render useless private opinion, and to induce the necessity of resorting, in almost every instance, to a court of equity : and, even then, so little uniformity of decision is to be expected, that judgments can seldom prove satis- factory. There can be but one opinion respecting the inconve- niences attendant upon such uncertainty ; and since the Courts are now restrained by later decisions, from reverting to the ancient rule, the present appears to be one among other instances wherein it might be expedient to call in the aid of a; competent tribunal to re- medy the evil. The cdnfusion prevailing in the cases is thus de- scribed by Lord Eldon: "Upon looking through the several cases, which have been decided during the period of more than a century past, I think I should have been authorized to say, at the commence- ment of it, that if such a rule were laid down, (viz. that the intent to exempt the perso'nal estate must be manifested in such a manner, as that persons out of Court, on reading the will, could not fail to agree that such was the intention,) there could never, in all human probability, be any decision upon a will furnishing a solution of the question, and now at the dose of it, I think I am authorized to say, that, which it was then probable would be the fact, is the fact, for, on a comparison of all the cases which have arisen, it is scarcely possible to find any two, in which the Court altogether agrees with it- self; there being scarcely a single circumstance that is considered, in one case, as a ground of inference in favour of the intention, but it is considered in other cases, as against the same inference ; and I can find no rule deducible from all that has been said on the subject, but this (which appears to be a rule supported by all the cases taken to- gether) namely, that since it has been lard down that express words are not necessary to exempt the personal estate, there must be in the will that which is sometimes denominated ' evident demonstration,' sometimes ' plain intention,' and ' necessary implication,' to operate that exemption. Thus much can be collected from the cases; butwhen it is further inquired as to what it is that constitutes this evident demonstration, plain intention, or necessary implication, it appears to me that Lord Alvanley is right when he says, you are not to rest on conjecture ; but the mind of the Judge must be convinced that (e) See Dixon v. Dawson, 2 Sim & Stu, 327. (/) 5 Mad. 69. SECT. III.] of the Personal Estate. 485 he is deciding according to what the testator intended. (g) The expression ' necessary implication,' is frequently applied to cases between a devisee and heir- at law, and yet there is hardly a case decided against an heir at law, where the implication upon which it was so decided was of absolute necessity. . It is but a loose way of defining this expression to say, that the intention must be so proba- ble that the judge cannot suppose the contrary ; and it seems strange to lay down as a rule, that express words shall not be required, but yet that there must be expressions tantamount to express words. I take it that this is what, will be found to be the result of all the cases ; that the Judge is, in every instance, to look at the whole of the will together, and then ask Jiimself whether he is convinced that it was the testator's intention -to exempt his personal estate." "Then, on the question, whether the- personal estate is discharged or not, I apprehend it will be found that the very same circumstances have, in the minds of different Judges, led to different conclusions. And this is the result to be drawn from the 'most diligent comparision of all the cases. "(A) 3. The amount of the personal estate in comparison with the debts, &c. is not to be considered in forming an opinion of the tes- tator's intention to exonerate it- Ancient cases seem to have sanc- tioned an inquiry into that fund, in order to deduce from the result an inference of intention to exempt it from its legal obligations ;(i) and the debts exceeding the whole of the personalty appear to have been the foundation of the decree in Bamfield v. Wyndham,(k) ex- onerating the personal estate. But an inquiry into the state of that fund is exploded by modern authorities. The testator's intention is to be collected from his will alone. In Lord Inchiquin v. French,(l) Lord Hardwicke cites, with approbation, the dictum of Lord Holt, that the Court ought not to consider the circumstances of the tes- tator in ascertaining what was his intention. So .in Stephenson v, Heathcote,(m) Lord Northington would neither admit parol evidence of the testator's intention to.exempt the personal estate, nor per- mit an inquiry into the amount of that fund, for the purpose ef showing directly or inferentially an intent to exempt it from debts, &c. In Brummel v. Prothero,(n) Lord Mvanley declared, that in endeavouring to ascertain the testator's intention, he would not look out of the will to the state of the testator's property. And in Booth v. Blundell,(o] Lord Eldon considered it as settled at law and in equity, that the circumstances of the personal estate, what- ever they might be, would not alter or vary the rule, which made the personalty the primary fund for payment of debts, &c. 4. Questions may arise, not as to the exemption of the personal estate from debts and legacies generally, but whether a particular legacy is or is not payable out of the real estate, in the first in- stance, although the will contain a general charge of legacies upon that estate, which would make it the auxiliary, not the primary, fund for the payment of legacies generally. It is therefore pro- posed to consider (p-)3 Ves. 113. ' (/O 1 Meriv. 219. (z) See Lord Talbot's observations, Forrest, 208. () Pre. Ch. 101. (0 Ambl. 40. 1 Cox, 9. (m) 1 Eden, 39. 43. (n) 3 Ves. 113. (o) 1 Meriv. 220. VOL. i. 3 a 486 Exoneration [Cn. XII. First. When the real estate will be the primary fund to answer OIK- or more legacies, although as to others it is only liable in aid of the personal estate. (f>) In order to make the real estate the primary fund for the dis- duinic of particular legacies, the intention of testators is to be col- lected in the same manner as upon questions whether the personal estate is exonerated from .legacies generally. When therefore a testator plainly shows, upon a sound interpretation of the whole of his will, that one or more debts or legacies should, be paid out of his real estate in the first instance, his personal estate will be ex- empted, notwithstanding there.be a charge of legacies generally upon the real property, by which it would be only an auxiliary fun/1 for the discharge of those other legacies, in the event of a de- ficiency of the personal estate. This will appear from the follow- ing cases : In Phipps v. \Annesley ,(q) the testator devised his real estate to trustees for the payment of aW his debts and legacies, with remain- der to his nephew, He then gave a legacy of 3000?. -to his only daughter at the age of eighteen, or marriage, (in addition to 12,0002, already charged by settlement upon the -real estate,) which' he di- rected his trustees to raise by sale or mortgage of his lands ivith his personal property ; but declared, " that the money should not be raised till eighteen or marriage, out 'of ihe before mentioned estate or land, that it might not -be a- debt upon his personal estate ;" and he thrice expressed in his will, " that his lands were devised to pay his debts, and all his legacies, in case his personal estate should not be sufficient." Lord Hardwicke determined that the real estate was primarily liable to the legacy of '3000Z. His Lordship considered, that the intention to exempt the per- sonalty from the legacy of 3000Z. appeared in the gift of that sum, in addition to said connection with the. 12,OOOZ then a subsisting charge on the land,(r) which circumstance, coupled with the devise of the less sum out of the real estate, and the declaration that it should not be a debt upon the personalty, was conviction to his Lord- ship's mind, that the real property was meant to be primarily liable to this legacy; notwithstanding it was only the auxiliary fund for the payment of debts and the. other legacies. It seems to be a necessary consequence, that if a subsisting charge on the real estate, augmented by will, shall have the effect of attracting to it the testamentary addition, so as to make it prima- rily payable out of the land, the principle of the decision must pro- duce a similar determination where the charge so subsisting is revocable, with a . power to limit new uses of the estate ; and revo- cation of the instrument creating the charge is made by a will, dis- posing of the property, but expressed to be subject to payment of the money mentioned in the charge ; for in such a case it is ob- vious that the lands primarily liable to raise the sum were, notwith- standing the revocation of the old uses, intended by the testator to continue the primary fund for its discharge. This was the ground of Lord Kenyan's decree in the following case : (/O Vide sect. 1. p. 446. ( g } 2 Atk. 57. (r) Such also was the case of Ward v. Lord Dudley, determined by Lord Thur- lo-tv, 2 Bro. C. C.-316 1 Cox. 438. SECT. III.] of the Personal Estate. 487 The Earl of Bath being entitled to the remainder in fee of real property, expectant upon an estate tail in A. conveyed by proper deeds that remainder to trustees, to the use of himself for life, remainder to the trustees for a term of ninety-nine years, in trust to raise so much money for such persons as he should appoint by deed or will, with liberty to revoke the old and appoint new uses. The Earl, in execution of his power, made an appointment by deed, directing his trustees to raise 20001. within a year after the deter- mination of the estate tail in #. and the term should commence in possession, and to pay that sum to B. . The Earl covenanted to pay the money to B. within the same period after the remainder came to him, in the event of .#.' estate tail determining during his (the Earl's) life : or, if that contingency should not happen, and the Earl revoked the "uses of the first deed, so that the trustees could not raise the 20001. then he covenanted that his heirs, &c. should pay the money to B. within a year after the expiration of the estate tail, provided if Ji. barred the" remainder, the 2000/: was not to be . paid. The Earl totally revoked the uses of the first deed by his will, and disposed of the real property, "-subject to the payment of the aforesaid sum of 20001. charged thereon by him for the benefit of 5." . Lord Kenyon, M. R. determined, upon the reasoning before mentioned, that the money was to be paid out of the real estate. (s) In Spunvay v. Glynn.(i) Mr. Coffin after chaining particular real estates with the payment of debts, funeral,' and testamentary expen- ses, and the legacies after bequeathed, or which he should give by codicil, devised all his real estates (except his Portledge estate, which he afterwards meant to dispose of) to Messrs. Glynn and Prideaux, equally in fee. He then devised the Portledge estate to trustees, in trust by sale or mortgage, or out of the rents and profits, to raise, with all convenient speed after his death, 4001. and pay the money to Mr. Spurway, and after such payment -in trust for Mr. Pine for life, with remainders over. The testator then' gave some legacies and annuities, and directed the residue of his personal estate not be- fore specifically bequeathed, and after payment of his said legacies, to be converted into money, and applied by his executors in discharge of his debts, funeral, and testamentary expenses, and the legacies thereby given or which he intended to give by codicil, in exoneration of his real estates charged with them ; and if, after such payments, there remained a residue, he gave it to Messrs. Glynn and Pri- deaux, whom he appointed executors. Sir W. Grant, M. R. was of opinion, that the Portledge estate was primarily, and solely, liable to the legacy of '4001. His Honour said, that it was the testator's intention. to charge the above sum exclusively upon the Portledge estate, in exemption of the personalty j for there- was no direct bequest of the money to the legatee, but it was ordered to be raised out of the Portledge estate, and paid to him ; and that the general words at the close of the will clearly related to the first charge, and were intended to exonerate the estates there referred to, in which the Portledge estate was ex- pressly excepted. (,v) ll r ilson v. Earl of Darlington, 1 Cox. 172. (/) 9 Ves. 483. and see sect. J. p. 446. 488 . Exoneration [Cn. XII. Sir William Grant, M. R. made a similar decree in Hancox v. Jibbey,(v) under the following circumstances : In that case, Mr. Hancox, having a wife and two daughters, de- vised his real estates to trustees, to sell a part with all convenient dispatch after his death, and to discharge out of the money a mort- gage debt affecting one of them, and to raise 2000Z. for his daugh- ters, payable at twenty -one or marriage; with a direction to his trustees, that so soon as the legacy was raised, it should be invested in stock, and the dividends applied for the maintenance of his daugh- ters. And after the sale, and the application of the purchase mo- ney, for the purposes aforesaid, he devised the residue of the said estates to his wife for life,- with remainder to his daughters as tenants in common in fee. The testator gave some legacies, and bequeath- ed his residuary personal estate, after payment of all his debts, lega- cies, and funeral expenses, to his wife absolutely. Sir W. Grant decided, that .the personal fund was exonerated from its original liability to discharge the mortgage debt, and the legacy of 2000Z. With respect to the legacy, the reasons for his Honour's decree appear to have been these-: 1st, That the 2000/.-was not bequeathed as a gross sum, but as so much of the produce of the real estates ; a devise, which entitled the .daughters to tke money in no other shape than as part of the real proceeds ;(M) and 2dly, that the testator showed, his intention, that the money should be raised solely out of the land; from the several. directions which he gave as to the pay- ment of the interest and the capital, none of which were applicable to a sum of 20003!. generally^ but all to the sum of-2000/. with the circumstances previously stated, viz. a sum arising in consequence of the sale of real estate, and produced by that sale. So in Gittins v. Steele,(x) where Lord Eldon reversed the decree of Sir John Leach, V. C. ; the case was, that Mr. Evans, after di- recting his executors to pay his debts, funeral expenses, and the costs of proving his will, bequeathed 7000Z. equally among his cousins, and charged his real property with the payment of that .sum. He then gave to persons, whom he appointed executors, two specific sums of 8000Z. and 2000J. three per cent, stock, then standing in his name, upon certain trusts, and after giving several legacies out of his residuary estate, he devised t.o the same persons, as trustees, all his real property to sell, and out of the proceeds and intermediate rents to pay his debts, funeral expenses, the 7000Z. and the expenses of the sale. He then bequeathed all his money, securities for mo- ney, stock in trade, and the residue of his personal estate (not before disposed of ) to his executors and trustees, in trust, to sell his stock in trade, &c. and out of the produce, and his other money and secu- rities, to pay the said legacies of 8000Z. and 2000Z. stock, and the several other legacies before given, except that of 7000Z. which was to be considered as a charge upon, and paid out of the proceeds from the sale of the real estate. The testator then directed the residue of the money produced from the sale of his real property, stock in trade, and personal estate, and the residue of his other personalty, to be invested on securities for a limited period ; and after providing, out of the interest, for the payment of certain weekly sums, he gave (t;) 11 Ves. 179. (w) See Walker v. Pink, cited 1 Cox, 5. (or) 1 Swaiist, 24. SECT. III.] of the Personal Estate. 489 the surplus interest, and also the capital after the period before alluded to, for the benefit of the persons, who should be entitled to the said three legacies of 7000Z., 8000Z., and 2QOOJ. Lord Eldon determined, that the real estate was the primary and sole fund for discharging the legacy of 7000J. and that the produce of it being insufficient to pay the whole sum, the legatee was not entitled to resort to the ge- neral personal assets to supply the deficiency. The last is a stronger case in favour of exempting the personal estate from the particular legacy by negative words, than Phipps v. Jlnnesley, before stated. (u) In addition to the whole frame of the will, manifesting the testator's meaning that, the bequest should only take effect out of the proceeds from a sale of his real estates, he ex- pressly exempts his personal property from the payment, declaring that the legacy was to be considered as a charge upon and to be paid . out of those real proceeds. After such an explicit declaration, it wquld seem, that had other passages in the will raised a doubt as to the intention, it pugjbt not to have been regarded ; since, according to Lord Hardwicke in Inchiquin v. French,(x] where there are ex- press words, they cannot be over-ruled by implication. We shall proceed to consider SECONDLY. When the personal estate will be exempted from debts, secured by mortgages upon the real property. It is a general rule, that the heir or devisee of an estate liable to a mortgage debt contracted by the testator, is entitled to have the land exonerated by the general personal assets ;(y) because the mo- ney, being a debt . due from the testator, is like his other debts, pri- marily payable .out of the personal estate; and it is immaterial, whether lie convenanted to pay the money or not, it being in either case equally his debt.(2) But these two circumstances must concur to entitle the real property to exoneration, viz. the debt must be of the testator's contracting, except under special circumstances ; and it must not appear that he intended to pass the estate cum onere. The principal authorities, where the personal estate was adjudged to be primarily liable to discharge the real from incumbrances with which it was charged, will be found -in note. (a) And .although the testator, devise his real estates charged with, or to be sold to pay, all his -debts, yet r as that circumstance alone will not (as we have seen) exempt the. personal assets from the obliga- tion to discharge those demands, the personal estate will, in the first instance, be applicable to pay a debt by mortgage, as one of them. (6) So also, if the real estate be devised to a person, expressly subject to mortgages affecting it'; still the personalty will not be exempted from payment of them, because the testator's intention, by those ex- pressions, to cast the burthen of those debts upon the devisee, so as to deprive him of his equity to resort to the personal estate for ex- (M) Ante, p. 486. 2 Atk. 57. (a:) Ante, p. 465. (y) 11 Ves. 186. (.z) 1 Ves. sen. 99. (a) Meynellv.. Howard, Pre. Ch. 61? HoiOelv. Price, 1 P. Will. 291. Pre. Ch. 423. 477. S. C. Cofie v. Cdfie, 2 Salk. 449. Bateman v. Bateman, 1 Atk. 421. ed. by Sanders. Lanoy v. Athol, 2 Atk. 444. . Lord Portsmouth v. Lady Suffolk, 1 Ves. sen. 31." King \. King, 3 P. Will. 358. (b) 11 Ves. 186. and see Hale v. Cojc, infra< as to the mortgage of the houses in Pifier How. Also Laivson v. Hudson, 1 Bro. C. C. 58. 3 Bro. Parl. Ca, 4?4. Exoneration [Cn. XII. oneration, is not clear and unequivocal. He might mean nothing more than to pass the estate, as the law would have done, in the ab- sence of the explanatory expressions, i. e. subject to the mortgages; in which case, the right of the 'devisee against the personal, estate would remain unaffected. (c) But where a testator's intention is plainly shown to make the de- vised estate the primary fund for payment of incumbrances affect- ing it, the devisee 'must take it cum onere; arid the personal estate will be discharged. This may happen, when a testator expressly devises a portion of the proceeds from a sale of his real estate to be applied in discharge of a particular incumbrance charged upon a part of it ; for he could have no other motive in giving such a direc- tion, than that the money to be raised by means of the real estate should be first applied in payment of the particular debt. (d) The personal estate would be also exonerated, when the real is not given to the devisee till after a sale, and the proceeds have been applied in discharging incumbrapces upon the lands or some of them ; because, what is devised,, is not the whole, but so much of the real property or produce as remained, after those purposes have been answered, (e) To give him, therefore, the whole of the estate, by discharging the mortgages out of the personalty, would be contrary to the terms of the will. Thus in Hale v. Cox,(f) the testator had mortgaged one estate called Milstones to a Mr. Robins, for 3001., and some houses in Piper Row, Wolverhampton, to another person. Under these cir- cumstances, the testator directed. the latter mortgage, and all his debts and funeral expenses to be paid out of his personal estate, be- queathing to trustees the residue of that fund for the benefit of two persons, who died before him. All' his other real estates, (including Milstones in mortgage to Robins') he devised to the same trustees, in trust to sell such of them as should be in mortgage at his death, and after payment of principal and interest, he ordered the surplus to be invested upon securities, for the benefit of his daughter for life, with remainder to her children. The trustees were authorized, in their discretion, to continue the-money on the mortgage, or borrow money on a transfer of the security. Although Lord Thurlow de- cided the Case against the exemption of the- personal estate, in con- sequence of the death of the residuary legatees during the testator's- life, yet he was of opinion, that if-such accident had not happened, the estate in mortgage to Robi/is must have been the primary fund for discharging that -debt, there .being-nd beneficial devise of its pro- duce until after that event. But as'to the other mortgage, he con- sidered there was not sufficient evidence of intention, 'to -exempt the personal fund from its natural obligation to exonerate the pledged estate. The above opinion of Lord Thurlow in regard to the primary liability of the real estate to discharge the mortgage, debt due to Robins, was afterwards confirmed by Sir W. Grant, M. R. in the (c) So stated in argument, and admitted by Sir W. Grant, 11 Ves. 181. 188, and see 8 Ves. 306. _ (rf) 11 Ves. 1'86. and see Watson v. Ihickwood^ante^. 472. in exception, under the particular terms and construction of the will, 9' Ves. 455. (/) 11 Ves. 187.' . ( /) 3 Bro. C. C. 322. SECT. III.] of the Personal Estate. 491 case of Hancox v. Jlbbey, before in part stated,(g) who decreed that the devise to trustees of the real estates, in trust, out of the proceeds from a sale of part of them, to pay a mortgage debt secured upon the testator's lands at Hanwell, with a disposition of.the r.ents, &c. of the unsold estates after the sale, and the application of the pur- chase money for the purposes therein mentioned (one of which was to discharge the debt by mortgage,) constituted the real estate the original fund for the payment of that debt. (h) When indeed a testator has in words exempted his personal estate from particular debts, they cannot be controlled by implication. (i) Suppose then a testator to devise part of his real property to trustees to sell, and with the proceeds to discharge a mortgage upon another estate, and particular. debts mentioned in a schedule to his will; and then to settle the remainder of his lands, including those subject to the mortgage, Upon his wife 'and family ; at the saine time bequeath- ing, to his wife, all his personal estate fully exonerated from his debts therein, and in the schedule enumerated, and from his debts and fune- ral expenses. If in the case supposed, the trust estate be insufficient to satisfy those demands, the settled estates, must be applied in ex- oneration of the personalty ; because^ whatever may be the. presump- tion of a contrary intention, it .cannot- stand in competition, with the express exemption of the personal property. (&) The heir or devisee of a mortgaged estate will also be precluded from resorting to. the pexsoal assets of the ancestor or testator for exoneration, when the debt is ^npt contracted by such ancestor or testator; but- the estate will come into, his hands with the charge upon it. ' This is exemplified in the recent case of Scott v. Beecher and wife.(Z) In that case../0/m Tyson, having surrendered his copy- hold estate to Richard Mills and his heirs, by way. of mortgage, for securing 1000Z. by his will devised all his estate and effects to his wife Elizabeth Tyson, and in particular his copyhold estate, and ap- pointed her executrix. After the testator's death in IS1 4, Elizabeth Tyson proved the will, was admitted to the copyhold subject to the mortgage, and in 1816 died without issue, and intestate, leaving her brother, the plaintiff, her heir at law, according to the custom; Letters of administration were granted to the plaintiff, and to the wife of.the defendant. Upon, the question between the heir at law and administrator of Elizabeth Tyson, whether the former should take the estate subject to the mortgage, or have it discharged out of the personal estate of Elizabeth Tyson, the Vice Chancellor re- marked, that Elizabeth Tyson was-devisee of the copyhold estate, and was also residuary legatee and executrix of the mortgagor. If she had thought fit, she might have paid off the mortgage out of the personal estate of her husband ; for it was' admitted that she pos- sessed assets sufficient to pay all the debts including the mortgage, and it might therefore be said that she elected to continue the mort- gage as a charge on her real estate. But his Honour apprehended that that was not a case, in which a personal representative was bound to make out any such fact of election. By the gift to her as residuary legatee, the personal estate of James Tyson became her Ante, p. 488. (A) 'See 11 Ves. 179. 186. (i) See ante, p. 465. See the case of Morrow v. Bush, \ fox, 185. (/) 5 Madd. 96. 492 Exoneration [Cn. XII. personal estate ; but the mortgage debt of James Tyson was not her debt, and her heir, therefore, had no equity to pay off the mort- gage out of her personal estate. The bill was accordingly dismissed with costs. The same rule holds although there be a general charge of debts upon all the testator's real property, because such an incumbrance is not considered to be his debt, payable primarily out of his per- sonal estate. And if it be not his debt originally, it will not, in general, acquire that character by his covenant to pay the money, so as to make his personal estate the primary fund for satisfaction of the demand; for such a covenant is merely auxiliary, an indis- pensible accident to subsequent transactions, consequent upon the creation of the original debt. Suppose then a testator to have ac- quired an estate, either as heir, devisee, or purchaser, subject to a mortgage; and upon a transfer of the security to have covenanted to pay the debt; in neither instance would his personal assets be answerable, in the first place, to satisfy the demand, they could only be resorted to in aid of the charged estate. .This may be con- sidered as the general rule, established by the cases referred to in note;(m) a rule, which will not be departed from, although the tes- tator may have pledged his own estate as an ulterior security for the same, debt ;(n) since the debt remains unaltered, and the secu- rity is merely collateral to it. And upon the same principle, if the testator's heir or devisee make an additional mortgage of the estate to pay the debts of the testator, and the money is so applied, or if he enter into personal obligations to individuals having claims or liens upon the land, such mortgage or obligations will-not, as between the real and personal representatives of the heir or devisee, entitle the former to call for exoneration out of. the personal estate :. for that fund received no accession or benefit from those transactions, which, having been entered into in respect of the real estate, it seems but reasonable, that such estate should be the primary fund liable to answer them. Accordingly, if an estate be devised to -trustees to sell to pay debts and legacies, and, subject thereto, in trust for B., should B. give a bond, or other security, to a legatee or creditor'for payment of his demand upon the. lands and die; those lands will* be the pri- mary fund' for discharging the obligation. (o) The principle, which governs cases of this description is well ex- pressed by Sir W. Grant, in his comments upon Billinghurst v. Walker.(p) There a term of ninety-nine years was created to se- (m) 1st. Where the covenant was entered into upon a transfer of the security, Bagot v. Oughton, 1 P. Will. 347. Evelyn v. Evelyn, 2 P. Will. 663. Shafto v. ShaftOy 2 P. Will. 664'. ed. by Cox,, in notes. 1 Cox, 207. S. C. 3 Ves. 131. Perkyns v. Bayntun, 2 P. Will. 664. ed. by Cox, in notes. 2nd. Where the testator purchased the equity of redemption, and covenanted to pay the money ; Forrester v. Leigh, Ambl. 171. 173. 2 P. Will. 664. ed. by Cox, in notes. Ancaster v. Mayer, 1 Bro. C. C. 454. 464. Tweddell v. Tweddell, 2 Bro. C. C. 101. 152. Commented upon by Sir W. Grant, 14 Ves. 424. (n) 1 Bro. C. C. 464. (o) Basset v. Percrval, 2 P. Will. 665. ed. by Cox, in notes. Earl of Tanker- ville v. Faivcet, 1 Cox, 237. 2 Bro. C. C. 57. 5. C, Hamilton v. Worley, 2 Ves. jun. 62. Mattheson v Hardivicke, 2 P, Will. 665. in notes. 5th ed. by Cox. (/z) 2 Bro. C. C. 604. SECT. III.] of the Personal Estate. 493 cure to Martha Vernon, 22001. upon premises hqld for lives. There being a difficulty about the renewal of the lease, it was appre- hended that Martha would remain altogether without a security if the lease expired. A bond, therefore, was given by George Wood- rqffe, the devisee of the estate, subject to the charge, for the money ; which, if that apprehension proved well founded, would be the only security in existence for the debt. The lease was afterwards re- newed, and the charge attached upon : Lord Thurlow holding, that the bond did not make the money charged upon the estate the per- sonal debt of the obligor. Upon the last case, Sir W. Grant made the following remarks : It is clear from the res gesta, that all, which George Woodr.qffe meant, was, to substitute his bond in the room of the leasehold secu- rity ; which, it was supposed, Martha was about to lose, but not to take upon himself, absolutely, and at all events, the debt, as a per- sonal debt of his own. He had no intention absolutely to exonerate the estate ; for he never would have given the bond except for the particular purpose. It was therefore inequitable, and unconscien- tious to say, that although the bond was given only for that purpose, it should be held to attach solely upon the personal estate of George Woodroffe. The bona fides of the transaction required that, in the event which happened, the lease should be still chargeable, and not the personal estate of George Woodroffe."(q] So also, if the incumbered estate be further mortgaged by the heir or devisee for his own debt ; the consequence must be, from the principle we have been discussing, that so much of the debt, as was contracted beneficially for himself, will be first payable out of his personal estate, and the remainder out of the descended or devised estate. (r) And when the personalty has been erroneously applied as the pri- mary fund, in exoneration of the real, the individuals entitled to the personal property will have a right to be reimbursed out of the real estate, (s) 5. The rule however making the real estate the primary fund for payment of an incumbrance affecting it, which was not contracted by the owner of the property, is not so inflexible as to admit of no exception, when the transaction imports his intention to adopt the debt as his own, and that he meant the vendor to be entirely released from it. This may happen, where upon the sale of an estate sub- jected to a mortgage, the purchaser not only contracts with the ven- dor for the equity of redemption, but also with, the mortgagee for the legal interest upon redemption, covenanting at the same time to pay the money, and the mortgagee releases the vendor from the debt. In such a case, the intention of all necessary parties for changing the nature of the debt is apparent. It therefore becomes the personal obligation of the purchaser, and, as such, his personal assets are applicable to discharge it in exoneration of the real estate. Upon this principle, the following cases were determined. (9) UVes. 425. (r) Lemanv. Newnham, I Ves. sen. 51. and for the decree, see Belt's Supp. 40. (a) Lawson v. Hudson, 1 Bro. C. C. 58. 3 Bro. Pad. Ca. 424. 8vo. ed. VOL. i. 3 R 494 Exoneration [Cn. XII. In Woods v. Huntingford,(t) Mr. and Mrs. Huntingford, being tenants for life of real estates, with remainder in fee to their son John, joined with him in a mortgage of part of the lands for a term of years, vested in a trustee, to one Carter, in consideration of 200Z. which was received by John, and applied to his own use ; and the father and son covenanted for payment of the money. Carter trans- ferred the mortgage to one Betts, who assigned it to Mr. Wright; to which transaction the mortgagors were parties, the father and son covenanting for payment of the money, which was increased by an advance of 100JL ; and against the discharge of those debts and in- terest the son covenanted to indemnify the life estates of his father and mother. After this, the interest having become in arrear, and continuing unpaid for a considerable time, the son was desirous of being discharged from his liability to pay the debt and the interest in arrear which, with the interest to accrue before his remainder in fee would, in probability fall into possession, might amount to the value of his inheritance in the estate ; he therefore contracted with his father to sell to him all his interest in the mortgaged estate, in consideration of the father taking upon himself the payment of the debt, and the interest as well in arrear, as to accrue, and indemnifying him (the son) from such payment. The transaction was effectuated by a proper deed in the year 1 767, reciting those facts, and containing the usual covenants by the son for further assurance and indemnity. The trustee also was directed to stand seised to the use of the father, who covenanted to pay all the arrears of interest. The father afterwards borrowed of Wright a further sum of 40Z. upon which occasion a new mortgage was made of the lands for that sum, together with the old debt of 300Z. Under the above circumstances, Lord Mvanley was of opinion, that the father adopted the debt of the son as his own, which entitled the father's heir to exoneration of the pledged estate out of personal assets of the father. It is observable in the last case, that the transaction in 1767 clearly showed that, as between father and son, the former meant to substitute himself in the place of the latter, in relation to the mort- gagee. And with respect to the mortgagee, he also released the son from his liability by accepting the new mortgage for the old debt.(w) Besides, the payment of the debt and interest was the con- sideration given by the father for the purchase of his son's remainder in fee, a circumstance of itself probably sufficient to make the mort- gage the personal debt of the purchaser, and, as such, primarily an- swerable out of his personal property. That case was followed by a similar decision of Sir W. Grant, in the Earl of Oxford v. Lady Rodney.(x) There the late Earl, after subjecting his personal estate to his own debts, &c. and appointing his wife executrix and residuary legatee, devised all his real estates to his wife for life, remainder to trustees, to apply the rents and pro- fits, after his wife's death, to pay his debts, then the mortgages upon his unsettled estates, and next the mortgages upon those in settle- ment. And " after payment of the mortgages in manner aforesaid," (0 3 Ves. 128. 132. (u) See Lord Alvanley's observations, 5 Ves. 539. and 2 Eden, 164. (x) 14 Ves. 417. 424. SECT. III.] of the Personal Estate. 495 in trust for his heir at law. The testator purchased a leasehold house in Harley-street (then in mortgage,) which he specifically de- vised to his wife absolutely ; and she, as executrix, exonerated the house from the mortgage out of the personal assets ; which, it was contended was an improper application, and that the messuage was the primary fund for the payment ; a proposition, the correctness of which depended upon the circumstances attending the sale and pur- chase of the premises. It appeared that the mortgagee was a party to the agreement of purchase, and to the conveyance to the testator. It also appeared, from the contents of the deed, that the testator agreed to purchase the lessees interest in the term, subject to the mortgage ; and that the mortgagee covenanted with the testator to convey to him the legal estate in the term, on payment of principal and interest by instalments ; and to do which the testator covenanted with the mortgagee, who agreed that he should enjoy the house until he failed in the performance of his' covenant^ Under these circum- stances, Sir W. Grant was of opinion, that the testator had taken upon h\mse]f personally the mortgage debt, which rendered his per- sonal assets primarily liable to the payment of it. The reasons "that influenced the Court's opinion, were similar to those upon which Lord Jllvanley determined the preceding case of Woods v. Huntingford, and expressed by Sir W. Grant as follows : " Here is a direct contract with the mortgagee. As between the purchaser and vendor of the equity of redemption, I admit there is nothing but a purchase of a mere equity, subject to the mortgage : but here the contract is with two different persons having different interests in the estate ; one an equitable interest, the equity of re- demption ; the other, the legal interest, the mortgage. The pur- chaser contracts with both at the same time, and both join in the conveyance to him. From the owner of the equity of redemption, he purchases his right to redeem ; and having done that, immediately enters into another contract for the purchase of the other interest from the mortgagee ; taking a covenant from the owner of the legal estate to take it from him upon payment of the mortgage money at particular periods, and in particular proportions ; and there are covenants to pay that sum at those periods and in those proportions, and until default of payment in that mode for quiet enjoyment." His Honour distinguished the case from Tiveddell v. Tweddell,(y) in the circumstance of the purchaser contracting with the mortgagees : and upon the whole, his opinion was such as before stated. It would seem, however, that the purchaser contracting with the mortgagee is not indispensibly necessary to his assumption of the debt as his own, so far as relates to the equities between his real and personal representatives. That this is reasonable, appears from the consideration, that both real and personal estates are at the absolute disposal of the purchaser ; and, since each class of representatives claim through him, both must necessarily succeed to his property according to the natures he has stamped upon them, and the liabili- ties attached to each by law in their administration as assets. If then, the transaction be between the purchaser and the vendor only, and it appear that the mortgage debt formed part of the considera- (y) 2 Bro. C. C. 101. 152. 496 Exoneration [Cn. XII. tion of purchase, the heir or devisee of the vendee will, as is pre- sumed, have the same right to call for payment of the money out of the vendee's personal assets, as of the remainder of the price given for the estate, if due at his decease. It was accordingly said, in Cope v. Cope,(z) that if A. mortgage his lands to B., and afterwards sell it to C. for 1000Z. including the mortgage money ; the purchaser shall pay the mortgage, because he has made it a debt in himself. And in Billinghurst v. Walker,(a] Lord Thurlmu expressed himself in these words : % " The mere purchase of an estate subject to charges, as an equity of redemption, does not make the personl estate of the purchaser liable to those demands ; but if a charge be part of the price, then his personal estate is liable." This doctrine does not rest merely on dicta, but it is established by a decision of Lord Hardwicke, and a judgment of the House of Lords. In Parsons v. Freeman,(b) the case before Lord Hardwicke, Jl. purchased an estate for 90Z., which was in mortgage for 86L ; and he covenanted to pay that sum to the mortgagee, and 41. to the vendor. Lord Hardwicke, after admitting the general rule before stated, thought, in this particular case, notwithstanding the cove- nant was with the vendor only, and the vendee's personal estate therefore not liable in that respect to the mortgagee, the words were sufficient to show an intention in the purchaser to make the mortgage his own personal debt. The case finally determined in the House of Lords is the Earl of Belvedere v. Rochfort,(c) in which Robert Rochfort agreed to purchase of Mr. Hughes an estate for 900/., then in mortgage for 4501. The purchase-deed stated that the debt and interest were to be paid by the purchaser out of the consideration money express- ed in the instrument, upon which was endorsed a receipt acknow- ledging payment by the vendee in this manner : 4501. in money on the perfection of the deed ; 450Z. allowed on account of the mort- gage. A decree was affirmed by the Lords, which declared that, under those circumstances, the purchaser had taken upon himself per- sonally the mortgage debt, which ought therefore to be discharged out of his personal estate. Hence it may be presumed, that where the purchaser includes the mortgage in the amount of the price to be given for the estate, and he covenants to discharge the mortgage, and to pay the differ- ence to the vendor, the mortgage will be considered the personal debt of the vendee ; and as such, his heir or devisee entitled to have the estate exonerated out of his personal assets. The case of Tweddell v. Tweddell, before referred to, has been considered of a contrary import ; but the principle upon which Lord Thurlow pro- fessed to decide that case, viz. on the ground of the contract being one of indemnity against the mortgage, and nothing more, is cor- rect and consistent with other authorities, and with his own subse- quent declaration in Billinghurst v. Walker, provided the facts, to which he applied that principle, were sufficient to authorize the de- (z) 2 Salk. 450. and see Ambl. 116. (a) 2 Bro. C. C. 608. () 2 P. Will. 664 in a note by Mr. Cox. (c) 5 Bro. Parl. Ca. 299. 311. 8vo. ed. SECT. III.] of the Personal Estate. 497 cree, but which may be doubted; for it is difficult to conceive, when a person (as in that case) agrees to buy an estate in mort- gage, for a sum of money, and he covenants with the vendor to pay to the mortgagee what is due to him, and the remainder to the owner of the estate, that the purchaser did not take the mort- gage upon himself personally, as a part of the price to be given for the property. (d) .That such circumstances are sufficient evidence of the purchaser's intention to adopt the debt as his own, Lord Hardwicke determined in the before-stated case of Parsons v. Free- man ; and although Lord rflvanley, in Butler v. Butler,(e) (a case in which the last was not cited,) thought himself bound by, and there- fore reluctantly followed the authority of Tweddell v. Tweddell, yet, when a similar case shall occur, it may be presumed that the vendee will be considered, in conformity with Lord Hardwicke's decision, as having taken upon himself the mortgage debt, as part of the price to be paid for the purchase, which, will entitle his heir or devisee to have it discharged out of the personal estate. In regard to the sufficiency of transactions by an heir at law, who succeeds to an estate in mortgage, to make that incumbrance his own personal debt, it was stated as a clear point by Lord Nor- thington in Donisthorpe v. Porter, (f] " that, where an heir inherits a mortgaged estate, he makes the debt his own by covenant and bond, and a new equity of redemption ; his personal estate (said his Lordship) is therefore liable to pay ; he has by his own act willed it so."(g") . After considering wh'ere the general personal estate is and is not exempted from the payment of all or particular debts and legacies, it will be proper in the next place to notice 6. When part of the personal estate will be effectually appro- priated for the discharge of legacies, in exoneration of what remains. For the purpose of charging a part of the personal property with the payment of legacies in exemption of the residue, the testator's intention must be ascertained as in other cases, either by expres- sions, or a fair deduction from a rational construction of the whole of his will. In Bootle v. Blundell,(h) before stated,(t) the Court declared, that the direction for paying the portions to the testator's daughters out of the money he might have at his death at /wee, or in the Liverpool bank, or due to him from that bank, and out of the rents and fines which should be owing to him at his decease, created a primary charge of those portions, upon these particular funds, in exoneration of the remaining personal property. This subject being connected with the doctrine relating to lega- cies in their natures specific, though not regularly so, as being given with reference to a particular fund for their payment, the reader is referred to the third chapter of this Treatise(fc) for additional authority. (rf) 14 Ves. 424. (e) 5 Ves. 534. (/) 2 EdeYi, 164. (P-) With respect to the exoneration of a wife's estate from incumbrances made upon it for her husband, see "Law of Husband and Wife," 1 vol. p. 140, et. seq. . (f? 1 Meriv. 193. 201. . (0 Ante, p. 481. () And particularly to the fifth section, from p. 166. to p. 171. 498 Exoneration [H. XII. 7 The exoneration of the personal estate is presumed to have been intended as a personal benefit for the individual legatee ; and nothing is more clear than that where an exemption is created for the bene- fit of a particular person, and not in favour of the estate generally, if that person cannot take it, the benefit will never arise : hence it follows, that if the personal estate be exonerated from debts and le- gacies in favour of .#., and he die before the testator, by which event the disposition lapses ; the executors or next of kin of the testator, who accidentally become entitled to the fund, will take it with its primary and natural obligation to discharge the debts and legacies. As an example of the principle of these remarks, the following case is adduced : Mr. Waring, after bequeathing' two annuities, and reciting his purchase of the manor of Ince, which he had mortgaged for the pur- chase money, devised his interest in the estate (subject to the annui- ties, and such other annuities, bequests, and directions, as by his will or by codicil he might give, expressly charging his Ince estate therewith) to his wife for life, remainder to such uses as she should appoint, but not to take effect until a mortgage affecting one of his estates should be discharged. The testator, after noticing that his wife had subjected her estate to raise 3000 J. to pay 1850Z. upon mort- gage of his estate at Oswestry, the surplus of which sum he was to receive, directed his trustees to raise the 3000Z. and discharge that mortgage, and pay the residue of the money to his wife, to whom he gave the rest of his personal property, in trust .to discharge " all his debts, for which at his d.eath he should not have given real secu- rities," and all such bequests and annuities (not including those be- fore mentioned) as he should therein or by codicil give, and with which he should not expressly charge his estate at Ince, and to keep the residue of the 30001. and of all other his personal estate, to her own use : provided, that if she by other means paid the said mort- gage and his debts, and the bequests and annuities (not including those before granted,) the 3000/. should not be raised. The testa- tor's wife died before him ; but he married again, and died without republishing his will. Under these circumstances, the question was between the testator's heir and second wife ; the former insisting that the personal estate was applicable in exoneration of the real, to dis- charge the mortgage debt affecting the purchased estate. Lord Mvanley, after admitting that the first wife would have taken the personal fund exempt from debts, for which the testator had given real securities, determined that the exemption was personal to her, and consequently that the privilege determined with her life.(Z) 8. We shall conclude this chapter in observing, that the real estate, when effectually charged with the payment of debts or legacies, will be liable to bear the burthen once only ; so that creditors or lega- tees cannot resort to it again, if the persons entrusted with the power to raise and pay the money, raise, mis-apply, and waste it. Accordingly, in a case, which was ultimately decided in the House of Lords, Mich. 1689, and reported in Salkeld,(m) a man limited an (/) Waring v. Ward, 5 Ves. 670. and see Hale v. Cox, 3 Bro. C. C. 322, stated ante, p. 490 and JVbelv. Henley, 7 Price, 241. 259. 6\ P. (m) Anon, iSalk. 153. etvide Carter v. Barnadiston, 1 P. Will. 505. 518. S. P. SECT. III.] of the Personal Estate. 499 estate to trustees for payment of debts and legacies. The trustees raised all the money, and the heir prayed to have the land ; which was opposed, on the ground of the trustees not having applied the money in conformity with the trust, but converted it to their own use, so that the debts and legacies remained unpaid. But it was re- solved, that the heir should have the land discharged, and the lega- tees be left to their remedy against the trustees ; upon the principle, that the estate was debtor for the debts and legacies only, and not for the misconduct of the trustees ; whence it followed, that the es- tate continued liable so long as the debts and legacies should or might be paid, and no longer ; and that when the land had once borne its burthen, and the money raised, it was discharged, and the trustees alone were liable. CHAPTER XIII. Of Legacies upon Condition IN preceding parts of this work, certain species of conditional legacies have been noticed; which, from their importance, it was thought expedient to make the subjects of two distinct chapters. (a) In the present chapter it is proposed to treat of conditional bequests generally under the following heads : SECT. I. Conditions precedent and subsequent. 1. When the conditions are precedent, and distin- guished from limitations. 2. When such conditions are impossible. 3. When illegal, and of precedent conditions in re- straint of marriage. 4. Conditions subsequent. SECT. II. Performance of Conditions. 1 . When the conditions are precedent. A. Where the performance is not within the time mentioned in the condition. B. From what period the time for performance is to be computed. C. When the legatee has the whole of life to per- form the condition. D. Right of executors to perform the condition. E. Where legacies are given to executors or trus- tees. 2. When the conditions are subsequent. A. Where they are impossible. B. Where they are repugnant and illegal. C. When they are not to dispute the validity of wills or bequests. (a) Chap. X. and XI. 500 Of Legacies [Cn. XIII. D. Where the time of payment of legacy., and the condition to divest it are inconsistent. 3. When the conditions are in restraint of marriage? whether precedent or subsequent. A. Where the conditions require marriages with consent. (A. 1.) At what time consent ought tobe obtained. (A. 2.) And from whom. v (A. 3.) What will be a sufficient consent. FIRST. Where the consent is general, i. e. to marry any person. SECOND. As to retracting consent, THIRD. Conditional assents. FOURTH. Importance of legatee's sup- position that there is no consent, when it is judicially considered as given. FIFTH. Of implied consents. SIXTH. Effect of consents by testators themselves to marriages, required by their wills to be had with consent after their deaths. (A. 4.) Whether conditions requiring consent are fully performed by first marriages with consent. (A. 5.) Whether such conditions will be confined to the periods appointed for payment of the legacies. [a.] And the effect of marriages without con- sent when the legatee afterwards survives the time when the legacy is payable. (A. 6.) J2s to conditions requiring marriages with consent being considered in ter- rorem. B. Conditions requiring marriages with persons bearing the surnames of testators. SECT. III. Respecting FORFEITURE generally, by non-com- pliance with testamentary conditions. SECT. IV. Necessity of giving NOTICE of conditions. 1 . In regard to personal bequests. 2. When the devise is of real estate. A Legacy upon condition may be defined, " a bequest, whose existence depends upon the happening, or not happening, of some uncertain event, by which it is either to take place, or be defeated." In deeds, &c. which are presumed to be made with great care, the SECT. I.] upon Condition 501 law has ordained certain appropriate words to create conditions ; but in wills, other words are sufficient for the purpose, by reason of the indulgence the same law allows to that imbecility of body and mind, under which it considers testators to labour, at the period of making those instruments. In all cases, therefore, where the in- tention can be collected, that the bequest should be conditional, and the terms are so definite as to admit of execution, that intent, if legal, will be effectuated by whatever words expressed.(o) This was exemplified ito the following instance : The testatrix, bjNflf codicil, bequeathed to her son (the plaintiff) as follows: " Providetkmy son changes the course of life he has too long followed, and will give up all his low company, and frequent- ing public houses entirely, I then leave him, but not otherwise, the interest of 5500/. for life," &c. And if he should not do so, she gave him only 50/. a year for the same period. The evidence of the son having complied with the condition was not satisfactory ; and it was contended on his behalf, that the condition was so vague, as to be incapable of enforcement in a court of justice. But Sir W. Grant was of a contrary opinion, and directed the Master to in- quire, whether the plaintiff had discontinued, and how long, to fre- quent public houses, drinking to excess, and keeping low company, according to the codicil. (6) Conditions admit of a two-fold division, viz. into conditions pre- cedent, and conditions subsequent. The former are such as must generally happen or be performed before the legacy can vest. The latter are such as by non-performance or breach of them will, in most instances, defeat the legacy already vested. So that if a be- quest were made to A. upon his marriage with B., or if, or provided, or in case, he married C. or into the family of C. ;(c) or at, or when, or if, or provided, or in case, he attained twenty-one ;(d) the bequest would be made upon a condition precedent to the vesting of the legacy. The condition would be alike precedent, and require com- pletion, if the bequest were made to #. being abroad, " in case he should ever return to England" ;(e) or if a legacy were given to the testator's widow payable in six months after his death, provided she released her right to dower or all demands upon the testator,(/) or paid to C. 20l.(g). But if a term of years were devised to />., upon condition that he paid to C. 1000Z. at Michalemas next after the testator's death, it would be a subsequent condition, which would devest and defeat the bequest, if omitted to be performed. SECT. I. Of conditions precedent. 1. Distinction between condition and limitation, and the con- sequences. Whenever it appears that the happening of an event, or the perform- ance of an act, was intended to operate as a condition to precede (a) Swinb. pt 4. sect. 5. Co. Litt. 204. a. Touchst. 451. Fulbeck's Paral. 62. (6) Tattersallv. Hoivell, 2 Meriv. 26. and see Neal v. Hanbury, Pre. Ch. 173. stated ante, p. 426. (c) 1 Bro. C. C. 55. T. Raym. 80. Show. Parl. Ca. 84. Co. Litt. 206. 14 Ves. 392. (d) Ante, p. 383. 2 Yern. 333. 2 Atk. 41. (e} S^rigg v. Sprigg, 2 Vern. r,94. ?/) Weldon v. Oxendon, cited Forrest, 273. Taylor v. Pofiham, 1 Bro. C. C. 168. () Swinb. pt. 4. sect. 7. VOL. i. 3 S 502 Of Legacies [Cn. XIII. the vesting of a legacy or devise, it is essential that the event hap- pens, or the act is done, since no interest will previously vest in the legatee or devisee,(A) as has been shown in the tenth chapter of this Treatise. In addition to the authorities there produced are the following : In Doe v. Shipphard,(i) land in Essex and Lancaster were devised to trustees, to pay out of the rents to the testator's married daugh- ter, 20J. annually, for her separate use for life, and the remainder during her life, and the whole of them after her death to her hus- band for life. " And in case his daughter survived her husband," the testator limited the estate to the use of his daughter for life, remainder to his grand-son and heir in tail, with remainders over. The testator then devised to the same trustees, other lands to the use of his daughter and her husband, and the survivor of them, until his grand-son attained the age of twenty-five ; at which period, or at the death of the survivor of the daughter and her hnsband, these lands were to be to the use of the grand-son in tail, with remainders over. The daughter died before her husband, and the question was, whether her surviving him was not a condition precedent to the several limitations over of the Essex and Lancaster estates, which not having happened, those estates devolved upon the testator's heir? And the Court of King's Bench decided, that the contingency of the daughter surviving her husband was a condition precedent to the vesting of the limitations, which not having happened, the heir was entitled. In consistency with the last determination, the same Court, de- cided the case of Doo v. Brabant, stated in a preceding page.(J) But whether a contingency, apparently denoting a condition pre- cedent to the devise or bequest, be or be not a condition, must be determined upon a fair collection of the testator's intention from the whole of his will. Hence, although the expression used by him may appear to denote its dependance upon a contingency, which may not happen, still, if the context of the will clearly show his inten- tion, that the event described was not to precede the vesting of the legacy, but the legatee should have it at a particular time, whether the contingency happened or not, the form, in which the bequest is made, will not be permitted to create a precedent condition ;(&) for in these and similar cases, courts of justice, in favour of the in- tention, consider the executory devises as limitations, and not con- ditions, which are required to be literally performed, previous to the vesting of any interest, as we have seen ; whereas limitations being construed according to the sense and intention of testators, it is not necessary that every particular circumstance should take place. Hence have arisen those cases, where a testator devised to the child with which his wife was enceinte, and if it died before twenty-one, then over ; the limitation over was held good, although the wife proved not to have been enceinte, and there was no express devise upon that event. The principle is obvious. The intention was clear that the limitation over should take place, if, in any event, the preceding was disappointed. The circumstance, therefore, of there Sfiriggv. Sfirigg, 2Vem. 394. (?) Dougl. 75. Ante, p. 329. and see Davis v. Norton, 2 P. Will. 390. (Jb) Ante, p. 387. SECT. I.] upon Condition. 503 happening to be no child en venire sa mere, was not allowed to pre- vent the alternative bequest, which would have been the necessary consequence, if the existence of the child en ventre sa mere, when the will was made, had been adjudged an essential preliminary to the vesting of the limitation over; i. e. if it had been considered a condition precedent. The following is a principal authority upon this subject : In Jones v. Westcomb,(l) the testator bequeathed a term of years to his wife for life, remainder to the child she was then enceinte with ; and, if it died under twenty-one, a third part of the term was to be- long to his wife, and the remaining two-thirds to other persons. Although the wife was not enceinte when the will was made, Lord Harcourt, determined that the devise to her was good. It is observable in the last case, that the devise to the infant be- ing ineffectual, was considered as if it had never been made. Ac- cording to the declaration of Lee, C. J., (m) the law is the same, whether the preceding devise be originally void or become so by non-existence or non-entity of the person. And it is to be remark- ed, that there is no distinction in those respects, whether the sub- ject of disposition be real or personal estate ; and that the the prin- ciple of the last class of authorities has been applied to other cases both at law and in equity. Thus in Holcroft's case(n) the devise was to the use of the first son of Sir John Holcroft in tail, and so to the second, third, and fourth sons in succession. And if the fourth son died without issue, remainder to Hamlet Holcroft with remainders over. Sir John had only one son ; upon which the question was, whether the subsequent uses could arise, and it was determined in the affirma- tive, since the words amounted to no more than a limitation of the estate, and were not a condition precedent to the estate of Hamlet. So in Bradford v. Foley,(o) the testator devised his real estate to his son, Thomas Hey, for life, remainder to his first and other sons by any future wife in tail male, &c. ; but if Thomas married a relation of his then wife, the estate was to be to the use of the children of John Hey as tenants in common. Thomas did not marry again, and yet the Court of King's Bench decided, that the children of John living at the testator's death were entitled, which could not be, if the second marriage of Thomas had been consider- ed a condition precedent to the limitation over to those children. In the next cases courts of equity followed the rule of law. Accordingly, in Avelyn v. Ward,( p) the testator devised his real estate to his brother and heir, Goddard Urling, in fee, upon condi- tion that he gave to the trustees a general release within three months after his (the testator's) death. But if Goddard neglected to do so, the testator gave his real estate to Richard Ward and his heirs. Goddard died before the testator, and Lord Hardwicke de- termined that the devise over took effect, since the contingency, (0 Pre. Ch. 316. 1 Eq. Ca. Abr. 245 & C. and see Gulliver v. Wickett, 1 Wils. C. P. 105. Statham v. Bell, Cowp. 41. and Scatterwood v. Edge, 1 Salk. 229. and 3 Ves. 320. The case of Grascot v. Warren, 12 Mod. 128. contra, was decided without argument, and may be considered of no authority. (m) In Andrews v. Fulham, 1 Ves. sen. 421. (n) Moor, 486. Cited Cowp. 42. (o)Dougl. 63. (A) 1 Ves. sen. 420. 504 Of Legacies [Cn. XIII. according to the intention, was not a condition precedent to such devise, but that the contingency and devise over operated as a con- ditional limitation, which enabled the Court to decide agreeably to the intent of the testator ; which was, that, if no release was ex- ecuted, the estate should go over. The following are instances in which courts of equity adopted the like construction in testamentary dispositions of personal pro- perty : In Parry v. Boodk(q) the testator gave to Charles Douglas a a bond debt of 2000J. ; but if Charles should not be in life, the money was to be divided between the plaintiffs. Charles, unknown to the testator, was living at the date of the will, but died before him ; and Lord Kenyon, M. R. determined, that the plaintiffs and not the residuary legatee, were entitled to the bond-debt. It is observable in the last case, that the testator intended the le- gacy for the plaintiffs if Charles were not in a condition to take it. So that, although the event upon which the limitation over was ex- pressed, did not literally occur, still, as it happened in effect, the Court, upon authority of the testator's intention, was of opinion, that the death of Charles when the will was made was not a condi- tion precedent to the bequest to the plaintiffs ; but it construed the words " if Charles should not be in life," in the sense of his not being alive at the death of the testator, the period when the bequest to him was to take place. Also in Pearsall v. Simpson,(r) the testatrix vested personal estate in trustees, to pay the interest to A, and B. for life, in suc- cession ; and, after the survivor's death, to divide the capital among their children then living ; but if neither of them left children who should attain the age of twenty-one, to pay the interest to C. for life ; " and after C.'s death in case he should become entitled to such interest," to divide the principal between D. and E. C. died before B. and neither A. nor B. left children at their decease. It was nevertheless determined by Sir W. Grant, M. R. that the limi- tation over to D. and E. took effect. His reasons seem to have been these : it would be absurd to im- pute an intention to the testatrix to make the bequest to D. and E, depend upon C.'s living to receive the interest, (an event uncon- nected with any intention in regard to them,) when the will afford- ed a more rational indication of her meaning, which appeared to- be, that the limitation over to D. and E. should take effect upon the death of C. whenever that event happened. The rest of her expressions, in relation to that circumstance, being merely intro- duced in consequence of recollecting the uncertainty, whether C. would live to enjoy the interest, and not with an intent to make that event a condition precedent to the vesting of the executory limitation. Again in Meadows v. Parry,(s] the testator gave his residuary estate to trustees for the benefit of such children as he should leave at his death ; but if all of them died under twenty-one, the residue was to go to his wife. The testator never had a child, and (7) 1 Cox, 183. (r) 15 Ves. 29. 33. (s) 1 Ves & Bea. 124. and see Fonnereau v. Fonnereau, 3 Atk. 315. S. P. SECT. I.] upon Condition 505 Sir W. Grant, M. R. determined, upon the authority of the preced- ing cases, that the bequest to the wife took place. 2. But, when there is no doubt of the bequest being made upon a preceding condition, it may happen that the terms of it are im- possible; an impossibility which may be commensurate with the creation of it, or be subsequently rendered so by the act of God or of man. Or the terms or event upon which a legacy is given may be illegal. In these cases it may be asked, can the legatees claim their legacies, although the terms upon which they are given, or the events upon which they are to vest, cannot be performed or happen 9 To answer these inquiries, it is necessary to take a short view of the principles of the common and civil laws upon these subjects. It is a general rule of the common law, applicable to real estates, that where an interest is so devised as only to arise upon a preceding condition, it cannot vest until that condition be performed, or the event happen, upon which it is given. (t) This rule has been ac- knowledged and acted upon ever since the time of Lord Coke.(u) The principle is, that there is no devise until the happening of the event, or performance of the terms upon which the disposition is made ; a principle which applies to every case, so that although the condition require the performance of an impossible act, as for the devisee to go to Paris in half an hour, or it require the devisee to do an illegal act, as to kill B. or to burn his house, (conditions mala in se ;) or whether it require a woman to separate from her husband, (a condition against the policy of law ;) or whether the devise be made on condition that the legatee have criminal connexion with a parti- cular person (a condition contra bonos mores ;) the before stated principle authorizes the conclusion, that, as all such conditions are void, the dispositions to arise only upon their performance are also void. But the rule of the Civil law is different, so far as it has been received ; and by that law bequests of personal property are deter- mined both in the Ecclesiastical courts and in courts of Equity.(x) Consequently, the Common law is partially superseded in the con- struction of personal bequests, and the Civil law is referred to upon those occasions. It seems, therefore, that what is a good or void condition by the Civil law (attending to the qualification before men- tioned,) is the same in Equity upon the subject of legacies ; and since that law made no distinction between the circumstance, whe- ther the condition were precedent or subsequent, but in either case rejected the impossible or illegal part of it, and, on performance of the remainder, gave the legacy to the legatee ; so it seems a court of Equity would do under similar circumstances. We shall begin with considering bequests made upon impossible conditions which are precedent. FIRST, Bequests made upon impossible conditions which are pre- cedent. It is the general rule of the Civil law, that, when the condition, upon which a legacy is given, is impossible, the bequest is single, i. e. discharged from the condition : so that, if a legacy were given to (0 Co. Litt, 206. Ughtred'sca&e, 7 Rep. 10. a. TouchsL 132. 451. 2 Black. Com. 156. () 6 Term. Rep. 719. (*) 2 Dick. 720. 506 Of Legacies [Cn. XIII. B.j if he drank up all the water in the sea, he would be entitled to the legacy, as if the disposition had been simple or without any con- dition, (y) But that rule was not without its exceptions ; for, although the condition happened to be impossible at the time of the gift, yet if that fact were unknown to the testator, and from the nature of the requisition it appeared to be the sole motive of the bequest, the im- possibility of the condition would preclude the legatee of his legacy. Suppose then a bequest to B. if he married the testator's daugh- ter, who happened to be then dead ; as non constat the legacy would have been given, if the testator had been apprised of his daughter's death, the impossibility of the condition would not be allowed to operate to the advantage of the legatee. (z) Upon the same reasoning, if the testator's daughter had been living at the date of the will, but died before her marriage with B. could be solemnized, by which accident the condition, which was possible in its creation, became impossible by an unavoidable subsequent event, the act of God ; still the condition was effectual, and imprac- ticability of its performance would prevent the title of B. to the legacy, (a) It is presumed that the decisions of Courts of Equity, in such cases as the above, would accord with the Civil code ; for those rules and exceptions are established on great authority, and are founded upon good sense. (b) Under the head of impossible conditions, those may be classed, where testators, through ignorance, have required acts to be done, that have been performed, or events to happen, which have taken place. In those instances, as the conditions are impossible, the legatees take their legacies pure and unqualified. The following are examples of this proposition : Suppose a legacy to be given to B. " if he remit a debt due to him from C. :" a demand, which happened to be remitted prior to the date of the will ; the bequest will be single and absolute in B. So also if a legacy were given to C. upon the contingency of a particular ship of the testator returning from a voyage, in the prose- cution of which she is then supposed to be, when in fact the vessel had arrived ; C. would be entitled to the legacy. (c) In like manner, if the impossibility of the condition arise from the subsequent act of the testator, the legacy will be single and abso- lute. An example of which is afforded in the following case. Mr. DarJey being seised of an estate called Battens, and entitled to an adjoining house called Bond's Walls for an unexpired term of years, devised the latter upon the same trusts as he had declared of the former, so far as the law would permit ; and he bequeathed to his wife the rents of all his chattel estates for life, " if she chose to reside at Battens :" and declared that she should enjoy for the same period, the use of all his household goods, plate, and furniture at Battens, and the live and dead stock upon the premises. The tes- tator afterwards suffered a recovery of Battens, by which the dispo- sitions of it by his will were revoked, and it devolved upon his heir (y) Swinb. pt 4. sect. 6. art 2, (z) Ibid. art. 8. (a) Ibid, art 14. (A) Per Lord JVbrt/iingtan, 1 Eden, 117. (c) Swinb. pt 4. sect 14. SECT. I.] upon Condition. 507 at law. Hence the widow was prevented residing at Battens, th e condition upon which the benefits were given to her by the will : nev er- theless the House of Lords, in reversal of a decree by Lord Camden, declared in favour of the widow, upon the principle, that the be- quests to her were discharged from the condition, as the recovery suffered of Battens by the testator, had disabled her to perform it.(d) SECOND. Precedent conditions which are ilUgal. It is a rule of the Civil law, that, if a precedent condition require the performance of an act malum in se, as to kill B., burn his house, &c.; not only the condition, but the disposition itself is void ;(e) a rule, which being in unison with the Common law(/) in devises of real estate, it is presumed that similar dispositions of personal pro- perty will receive the like construction in courts of Equity. When, however, the illegality of the condition does not concern any thing malum in se, but is merely against a rule or the policy of law, the condition only is void, and the bequest single and good ; for the condition not being lawful, it is held in the phrase of the Civil law pro non adject a. That this is so in Equity appears from the following case : In Brown v. Peck,(g} Mr. Sparks bequeathed to his niece Rebecca 151. for mourning ; and if she lived with her husband, 21. a month, and no more ; but if she lived from him, and with her mother, then she was to receive 51. a month. Lord Northington was of opinion, that Rebecca was entitled to the monthly payment of 51. observing, that the condition being both impossible at the time of its imposition, and contra bonos mores, the bequest was simple and pure. See also Poor v. Mial, 6 Madd. 32. W T ith respect to the legality of conditions in testaments requiring the marriage of legatees under particular limitations or qualifica- tions, courts of Equity have been not a little embarrassed, since the Civil law, in framing its original rule upon this subject, showed great jealousy of all conditions which imposed the least restraint upon entering into that engagement ; establishing the legacies and avoiding the conditions, without distinction as to their being pre- cedent or subsequent. The Ecclesiastical courts having blindly adopted that rule, and courts of Equity entertaining a concurrent jurisdiction with them on the present subject, the latter tribunals, with a view to uniformity of decision, have been more or less biassed at different periods by the Civil law. That a restraint upon marriage may be judicious and proper, admits of no doubt, and its total rejec- tion by that law, as at first established, appears to have been founded on no general principle, but upon the particular circumstances of the Roman empire at the time. After the civil war, the depopula- tion occasioned by it led to habits of celibacy. In the reign of Augustus the Julian law, which went too far, and was corrected by the Lex Papia Poppaa, not only offered encouragement to marriage, but laid heavy impositions upon celibacy. The rule being thus established for the encouragement of marriage, it followed, that no person could impose restraints directly contrary to the law. Hence, under this local and political regulation, it became a rule of con- d) Darley v. Langworthy, 3 Bro. Parl. Ca. 359 8vo. ed. >) Swinb. pt. 4. sect, 5. art, 9. & 16. (/) Co. Lit. 206. (5-) 1 Eden, 140. 508 Of Legacies [Cn. XIII. struction that these restrictive conditions were void : a rule, certainly inapplicable to a country, where there is no law to restrain indivi- duals, from exercising their own discretion as to the time and cir- cumstances of the marriages, which their children or the objects of their bounty may contract. How such a rule so established ever came to be adopted in the Ecclesiastical courts of this kingdom, is only to be accounted for from the circumstance, that, in the dark ages, soon after the revival of letters, there was a blind superstitious adherence to the text of the Civil law. Judges never reasoned, but only looked into books, and transferred the rules there found into their courts, as positive rules to direct them, without considering the circumstances. (h) Such probably was the manner, in which the Ecclesiastical courts obtained and adopted the rule of the Civil or Canon law as first established upon the present subject, without at- tending to its subsequent modifications j and it seems to have in- sinuated itself into courts of Equity in a similar manner. The early cases refer iageneral to the Canon law, as the standard by which all legacies are to be governed j towards the latter end of the last, and the beginning of the present, century, the matter is more loosely handled : The Canon law is not referred to as affording a too posi- tive rule ; but conditions of this description are treated as partaking of the force allowed them by the law of England, though, at the same time, as unfavourable to the good order of society ; and at length it became a common practice to hold such conditions only in terrorem.(i) The unreasonableness of the supposition, that a tes- tator did not mean what he expressed, combined with the considera- tion, that the law of this country did not in policy restrain the im- positions of judicious restraints upon marrige, has at last, amid con- flicting opinions, fixed the law upon this subject, agreeable to the corrected rule of the Civil law; and it is now settled, that condi- tions, imposing particular restraints upon marriage, in testamentary dispositions of personal property, are legal and binding. If then a bequest be made to Ji. upon his marriage under twenty- one, or other reasonable period, with consent of parents, trustees, executors, or guardians, it will not vest in him until he comply with that requisite ; for the condition is precedent and legal, notwith- standing the contrary decision of Lord Hardivicke in Reynish v. Martin,(k) and the preceding determination by Justice Parker in Underwood v. Morris.(l) Accordingly, in Hemmings v. Munckley,(m) Mr. Clutsam be- queathed five-sixteenths of his residuary personal estate to trustees, to invest and pay the interest to his daughter Rachael, upon her at- taining the age of twenty-eight, or day of marriage, which should first happen, provided she married with the approbation of his ex- ecutors or those then living. The remaining eleven-sixteenths the testator gave among his other four children, and declared, that if either of his sons or daughters died before their shares became pay- able, their parts should belong to his children then living, and the issue of any who might be dead at that period, per stirpes, at the same times as their original shares would become due. Rachael (A) 3 Ves. 96. (/) 2 Bro. C. C. 487. (fc) 3 Atk. 330. (/) 2 Atk, 184. (w) 1 Bro. C. C, 303. ed, by Belt. SECT.- I. J upon Condition. 509 married Mr. Curley without the consent of the executors, and had a child (to whom Curley was administrator), and died under the age of twenty-eight. The surviving children of the testator .insisted, that RachaeVs portion never vested, since she married without con- sent, and did not attain the age of twenty-eight. On the contrary, it was urged for Mr. Curley, the administrator of his wife and child, that the legacy vested in Rachael upon her marriage, notwithstand- ing the condition which was to be considered in terrorem only, and the case of Underwood v. Morris (last referred to) was cited. But Lord Rosslyn said, he doubted the authority of that case, and deter- mined that the legacy did not vest. There having been five chil- dren of the testator, his Lordship held, that the infant child of Ra- chael was entitled to one-fifth of her mother's share under the limi- tation over, as it answered the description of " issue of a deceased child;" which fifth part he directed to- be. paid to her father as her administrator.- The last case was followed by a similar decision of Lord Thurlow in Scott v. Tyler ;(ri) where, although there was a limitation over of the legacy, it was not dependant upon a marriage without consent, but upon a dying under a particular period, without marriage ever having taken place ; a limitation which was disappointed by the marriage of the legatee, though without consent. There Mr. Kee bequeathed 10,OOOJ. South Sea annuities to his executors, in trust to pay part of the dividends for the support and education of his god-daughter Miss Tyler during her minority, di- recting that a moiety of the capital, with the savings, should be transferred to her at twenty-one, in case she were then unmarried, and the remaining moiety at the age of twenty-five, if she should be then single. " But in case she married before twenty-one with the consent of her mother," one half of the 10,OOOZ. and savings was to be settled upon her and- her issue, at the discretion of the mother, and the remainder of the annuities was to be at her own disposal; but if she died under twenty-five unmarried, the testator gave the 10,0001. to her mother, who was appointed residuary legatee. Miss Tyler, while an infant, married the plaintiff Scott, against the con- sent of her mother, upon which they claimed the 10,0001. as an ab- solute legacy, insisting that the condition, requiring the consent of the mother to the marriage, was void as against policy, and by the Civil law which was the rule followed by the Courts in this kingdom. But Lord Thurlow, after taking a review of that law, and the extent of its adoption into the Courts of this country, determined the con- dition to be obligatory. Whence it followed, that as the legatee married under twenty-one without her mother's consent, she never came under the description to which the gift of the 10,OOOZ. attached, consequently the fund being undisposed of, formed part of the re- sidue which was given to the mother. Lord Rosslyn was called upon to consider his opinion in Hem- mings v. Munckley, in the following case; and his Lordship ad- hered to that opinion. In Stackpok v. Beaumont,(o) Sir Thomas Blacket devised his (n) 2 Bra C. C. 431. 489. His Lordship's judgment is more fully reported in 2 Dick, 712. (o) 3 Ves. 89. and see Knight v. Cameron, 14 Ves. VOL. i. 3 T 510 Of Legacies [C. XIII. real estates in remainder to the use of his third natural daughter Louisa Weniworth, or such person, if any, with whom she should first intermarry, " if before twenty-one, then with the consent of his trustees or the survivor of them," for their joint lives and the life of the survivor, &c. Towards the conclusion of the will, the testator gave to Louisa 10,OOOZ. " payable and to be paid to her as follows-'; 5QOOZ. upon her marriage with such consent as aforesaid, and 5000Z. within two years next afterwards." Louisa while an infant and a ward of the Court of Chancery, eloped and was married in Scotland without the consent of the trustees. And it was one of the questions, whether, under those circumstances, Louisa and her husband were entitled to the legacy of 10,OOOZ. and to have a moiety of it paid .immediately. Lord Rosslyn determined in the negative, declaring that the condition was perfectly legal, and that Louisa, in not marrying with consent, never placed herself in a situation to answer the description of the bequest. It is observable- in the last case, that there was no limitation over of the legacy in the event of the legatee marrying without consent, and yet the restrictive condition was held legal and binding, which when once established, necessarily precluded the legatee marrying without consent, from taking any interest in the bequest, as not an- swering the description in the will (./>) The two last cases appear to have decided thus far, that when the condition requiring con- sent to the legatee's marriage if it take place under twenty-one, &c. is precedent, it is immaterial whether there be or be not a limi- tation over of the .legacy upon the marriage without consent ; as in either case the* condition is good and conclusive upon the legatee. It appears from the case of Hemmings v. Munckley before stated, () 'If he prove the will with an intention to act under it, that will be a performance of the con- dition ; or if he unequivocally manifest- an intention to act in the executorship, as in .giving directions about the funeral of the testa- tor, and be prevented byi death from further entering upon his office, that also will' be a performance of the condition. Accordingly in Harrison v. Rowley,(q] Mrs. Jllsager bequeathed to her executors and trustees, 100Z. a-piece, for their care and loss of time in the execution of the trusts, together with their reasonable expenses, when called from home on that account. Judith, the sis- ter of Mrs. Msager, made a testamentary disposition to the same effect, as that just mentioned, and appointed the same persons her executors. John Ford, one of the executors and trustees, survived the testatrixes so short a time, that he was prevented from joining with his co-executors in proving the wills, bnt he concurred with them in giving orders respecting the funeral of Mrs. Msager, and he acted in the trusts of both wills, in directing payment of burial fees, the expenses of making the coffins and opening the vault. Under those circumstances, the executors of Ford claimed the legacies under each will ; atid Lord MvaqJ,ey, M. R. determined in 'their favour, upon the principle, that Ford showed as much as any person could do, his intention to undertake the trusts, and that his being prevented by death from executing them ought not to prejudice his title to the legacies. Also in Humberston v. Huw,berston,(r) the testator, as encourage- ment to his executors to accept the trus.t and executorship, gave to each of them 10CZ., and 121. a-piece for mourning and rings, and ]()/. a year for their trouble. The executors did not act; and Lord Cowper was of opinion, that they were entitled to the rings and . mourning as personal gifts, but not to the annuity or' legacy of 100/. Cn) 2 Roll. Abr. 450. pi. 11. (o) See Brydgesv. Wotton, 1 Ves. & Bea. 134. ) And see Co. Lit. 206. 223. see also Poor v. Mial, 6 Mad. 32. (i) 18 Ves. 433. 1 Rose, 99. VOL. i. 3 X 526 Of Legacies [Cn. XIII. but merely imposes a partial restraint upon him, which may be equit- able and proper. (k) Upon the same principle, if a legacy were given to B., to be paid at twenty-five, provided, if he aliened the same before that age, his interest should cease, and go over to C. ; the condition is good ; and if not observed, C. will be entitled to the money. (I) So, when it appears that the proviso against alienation by a lega- tee for life was not meant to operate as a strict condition, in deroga- tion of the legal powers and incidents to that estate, but as a con- ditional limitation, (m) determining his interest, and giving it to another person upon alienation ; in that case, if the legatee do not comply with the terms of the bequest, his interest will cease, and go over as directed by the will. Lord Eldon expressed himself on this subject to the following effect : " If property be given to a man for life, the donor cannot take away the incidents of a life estate. A disposition to a man, until he shall become a bankrupt,, and after bankruptcy over, is quite different from an attempt to give to him for his life, with a proviso that he shall not sell or alien it. If that condition be so expressed, as to amount to a limitation, reducing the interest short of a life-estate, neither the man nor his assignees can have it beyond the period limited. "(w) The above sound distinction between condition and limitation appears to reconcile all the authorities relating to testamentary ques- tions upon this subject. Whether the restriction be condition or limitation must be decided by the intention of a testator, as collect- ed from his will.(o) And it should seem, that if the restraint be a condition, then, since a condition not to alien is repugnant and void, the bankruptcy of the legatee, any more than his own particular disposition, cannot be a forfeiture. On the other hand, if the re- striction be a limitation; then, whether the alienation be by the act of the party,(j>) or by operation of law, as in consequence of bank- ruptcy, the interest will determine. In truth, there seems to be no foundation for the distinction said to exist in some of the cases, be- tween the voluntary alienation of the legatee being a forfeiture, and the disposition by act of law being no forfeiture ; for in each in- stance, the legatee is the author of the alienation intended to be pre- vented by the testator, by whatever means effected. In the one case, it is occasioned by his own direct and immediate act ; and in the other, by involving himself in debt, which gives rise to the dis- position of his interest by act and operation of law. Hence it seems fair to conclude, that, where the interest bequeathed to a person is made to cease upon his alienation, not as a condition annexed, but in limitation of its continuance, the interest will determine, whether the legatee directly make the disposition, or the law does it for him in consequence *>f his own preceding acts. We shall now examine the cases, to ascertain how far they support the above observations. In Dommett v. Bedford,(q) a case sent out of Chancery for the opinion of the Court of King's Bench, the testator bequeathed to his nephew, Mr. Woodham, an annuity of 30Z. for life, to be paid half- (fc) Litt. sect 361. Swinb. pt. 4. sect. 13. art. 6. (/) See Large's case, 2 Leon. 82. (m) Ante, p. 502. (n) 18 Ves. 433. ) Ante; p. 502. (ft Wilkinson v. Wilkinson, 2 Wils. C. C. 47. 6 Term. Rep. 684. SECT. II.] upon Condition. 527 yearly, and with which he charged his real estate. The testator then gave a strict direction, that the annuity should be paidfrom time to time to Woodham only ; whose receipt, under his own hand, and none other, should be a sufficient discharge ; the testator's intent being, that the annuity or any part of it should not on any account be aliened for the whole or any period of Woodharrfs life ; and if the same should be so aliened, it should immediately cease and deter- mine. . Woodham became a bankrupt after the death of the testator ; and the commissioners assigned the annuity to the assignees. The Judges certified their opinion, that by the bankruptcy and assign- ment the annuity ceased and determined. It is observable, the Court did not say that the annuity was forfeit- ed, which it would have done, upon the breach of a condition. It declared there was a cesser of Woodham's interest in, and a deter- mination of, the annuity. This then was a limitation, not a condi- tion. It was the testator's intention that the annuity should continue only so long as Woodham could receive it; and that, if in any event he were precluded from so doing, the personal benefit intended for him should determine. The case establishes the following proposi- tion ; that a general restraint of alienation includes as well a dispo- sition by act of law, as by the specific act of the person prohibited. Doe v. Hawke(r) is a case of similar description with the last. There a farm, held under the Duke of Newcastle for twenty-one years, was devised by the testator to his nephew, Abraham Ibbotson, in the following manner : He gave the tenant-right of it to Abra- ham, he performing the obligations in the lease, " but not to sell or dispose of such tenant-right to any other person. And if he refused to dwell there himself, or keep it in his own possession, his nephew John was to have the tenant-right." After Abraham was in possession of the farm, he deposited the lease with a Mr. Crookes as a security for a debt, and it was afterwards delivered over to another creditor, who discharged the demand for Abraham, and received from him a warrant of attorney to confess a judgment, which was entered up, and execution taken out. Under that ex- ecution, the lease was sold, and assigned by the sheriff, and the pur- chasers (defendants) immediately put into possession of the farm. Abraham left the farm on the morning before the sale, and from that day he ceased to dwell there, or to have any possession of it Under those circumstances, John, the devisee over, claimed the farm ; a claim which was established by the opinion of the Court of King's Bench. The last case was decided upon the devise being a conditional limitation, and not simply a condition. It was the clear intention of the testator (and as appeared from the terms of the devise) to give the lease to Abraham, so long only as he continued to live on the farm. If he quitted it, his interest was to determine at that period, and to go over to John. All that was necessary for John to show to complete his title, was the abandonment of possession by Abraham. This he was enabled to do, as, from the time of the sale by the sheriff, Abraham neither resided on the farm, nor retain- ed the possession of any part of it. The event happened upon (r) 2 East. 4-81. 528 Of Legacies [Cn. XIIL which his interest determined, and that of John began. Whether Abraham's teaving the farm was in consequence of his own volun- tary act, or by compulsion of law, was immaterial ; since, in either case, he was the author of the necessity ; and the terms of the de- vise were general, positive, and peremptory. In unison with these decisions, Sir W. Grant derermined the case of Shee v. Hale.(s) Mr. Mootham bequeathed his residuary estate to trustees, to pay to his son John quarterly a clear .annuity of 200/. for life, -"- or until such time as John should sign any in- strument whereby or in which he should contract or agree to sell, assign, or otherwise part with the same, or any part of it ; or in any way charge the same, or any part thereof, as a security for money to be lent him ; or in any other manner charge or dispose of such annuity, or any portion of it, by anticipation ; or whereby he should empower, or intend to authorize, any person to receive all or any part of the annuity, except the quarterly payment next after the po\yer or authority was given." The testator then declared, "that if his son should, at any time, sign or execute any such in- strument- or writing for all or any of the before-mentioned purposes (except as aforesaid,) then and from thenceforth the annuity should cease to be paid or payable to him, and should sink into the per- sonal residue," which he disposed of by a codicil. John survived the testator, and having been imprisoned for debt, took the benefit of an Insolvent Act, and inserted the annuity in the schedule of his property. And it was determined that the annuity was at an end. It appears from the last case, that the annuity was granted during the life of John, or until he assigned it. By the -terms of the be- quest it was to continue no longer than one of those periods, which ever of them first happened. The devise then was not a condition, but a limitation. The son, therefore, having taken the benefit of the Insolvent Act, and signed the schedule, authorized other per- sons within the terms of the will fo receive the annuity, which necessarily determined the grant of it. And although the Court seemed to notice a distinction .between a voluntary alienation, and-- one by operation of law, viz, under bankruptcy, it is nevertheleess conceived, upon the authority of the preceding cases; and those after stated, and the intention of the testator, that had John become a bankrupt, the decision would have been the same. The last case which we shall produce, as decided upon the same principle as the preceding cases, is Cooper v. Wyatt.(t) There Mr. Herbert devised his real estate to trustees, upon trust, as to a moiety of it, that they, during the life of his nephew Samuel, should receive the rents, and apply a sufficient part of them for the support and education of Samuel's children ; " and if there should be a surplus," then in trust from time to time to pay and deliver the same into the hands of Samuel (but not to his assigns,) during his life, for his own sole use and benefit ; and after his death, in trust as to the said moiety. for SamueVs children, as in the will mentioned : provided, that if Samuel should, by any ways or means, sell, dispose of, or incumber the right, benefit, or advantage he might have for life, or any part of (s) 13 Ves. 405. (0 5 Mad. 482. and see Wilkinson v. Wilkinson, 2 Wils. C. C. 47. SECT. II.] . - upon Condition. 529 it, then the right, benefit, and advantage of his said nephew for life, should cease and determine as to him, and be applied for the benefit of his children. Samuel survived the testator, and became a bankrupt, and the assignee claimed the surplus rents devised to the bankrupt, notwithstanding the provision contained in the will against alienation ; but the children insisted that those rents be- longed to them under the limitation over in the will. And the opinion of Sir John Leach, V. C. was in their favour. It appears to have been the testator's intention to limit the rents to Samuel, either during life or until alienation. The interest for life was to be reduced to a shorter period, if he disposed of or en- cumbered it, and in that event the testator substituted the nephew's children in the place of their father, by a limitation over of the rents. The devise, therefore, operating as a limitation, and not as a con- dition, it was a necessary consequence from the preceding cases, that whether the alienation took place by the voluntary act of Sam- uel, or from his bankruptcy, the event would have happened, upon which his estate in the rents was to cease, according to the terms of the devise, and that of the children was to begin. The preceding cases are instances where alienations by the lega- tees were made the periods for the natural expirations of the in- terests given to them, and therefore not being repugnant to any legal incident belonging to an estate, the provisions against such aliena- tions were adjudged to be obligatory. But where the bequest is of an intere'st for life to a man, (and it is immaterial whether directly to or in trust for him,) and the testator declares his intention that the subject so given shall be to the separate use of the legatee, and not be assignable by him in anticipation or otherwise, and there is no limitation over upon an alienation, the intended restriction being repugnant to the jus disponendi legally incident to the estate is void. Consequently neither the voluntary disposition of the life-in- terest by the legatee, nor the legal disposition of it in bankruptcy, will determine that interest ; but in the one case the particular as- signee, and in the other, the assignee under the commission, will be entitled to the life estate. Thus in Brandon v. Robinson,(u] the testator, after devising his real and personal estates to trustees, to sell and divide among his children, who were to take vested interests at twenty-one, directed the share of his son Thomas Groom to be laid out in the funds, in the names of the trustees, during the life of Thomas, and the divi- dends, as they became due, to be paid from time to time into his own hands or upon his proper order and receipt, subscribed with his own hand, to the intent that they should not be grantable, trans- ferrable, or otherwise assignable, by way of anticipation of any un- received payment, or any part of it ; and that, upon the death of Thomas, the principal with the dividends should be paid to such persons as would be entitled to Thomas's personal estate, as if the share had formed part of it, and he had died intestate. Thomas, having survived the testator and attained twenty-one, became a bankrupt. His assignee claimed the dividends upon the share which should accrue during the life of Thomas, upon the ground () ISVes. 429. 530 Of Legacies. [Cn. XIII. that the trust of the dividends having been declared in favour of Thomas for life, the restraint of alienation was repugnant to his interest, and therefore void. Lord Eldon, being of that opinion, over-ruled a general demurrer of the trustees to the bill of the as- signee. It is apparent in the last case, that the testator intended his son Thomas to take an estate for life. There was no declaration that his estate should cease upon alienation, to show that such event was meant to be a period short of a life-interest, at which the be- quest was determinable, as in Dommett v. Bedford before stated ;(x) nor was there any limitation over upon parting with it, as in the preceding authorities. But the case was a simple trusty for life, adopted with a declaration that the legatee should not dispose of his interest, which was a requisition repugnant to the estate, and consequently ineffectual. We shall next consider the necessity of observing C. Conditions not to dispute the validity of wills and testa- ments. When legacies are given to persons upon conditions not to dispute the validity or the dispositions in wills or testaments, the conditions are not in general obligatory, but only in terrorem. If therefore there exist probabilis causa litigandi, the non-observauce of the conditions will not be forfeitures. (y) The reason seems to be this; a court of equity does not consider that the testator meant such a clause to determine his bounty, if the legatee resorted to snch a tri- bunal to ascertain doubtful rights under the will, or how far his other interests might be affected by it ; but merely to guard against vexatious litigation. But when the acquiescence of the legatee appears to be a material ingredient in the gift, which is made to determine upon his contro- verting the will or any of its provisions, and in either of those events the legacy is given over to another person, the restriction no longer continues a condition in terrorem, but assumes the character of a conditional limitation. The bequest is only quosque, the legatee shall refrain from disturbing the will. And, if he controvert it, his interest will cease and pass to the other legatee. As an example of this : In Clever v. Spurling,(z) a freeman of London, , after noticing in his will that he had advanced his only daughter in marriage, gave to her 351. provided if she or her husband refused after his death to give a release to his executors,(a) or should in -anywise trouble or disturb them upon any claim or pretence by virtue of the custom of London, the legacy should go over to the children of his deceased youngest daughter. The daughter and her husband claimed by the custom in opposition to the will, but it was insisted, that, as the le- gacy was given over in the event of the legatee or her husband mak- ing any claim, or disturbing the executors under pretence of the custom, a right became vested in the legatees over by the claim that had been made, which a court of equity would not divest. And so the Master of the Rolls determined. (X) Ante, p. 526 . (y) Powell v. Morgan, 2 Vein. 90. Morris v. Burroughs, 1 Atk. 404. Loyd v. Sfiillet, 3 P. Will. 344. (z) 2 P. Will. 526. (a) Vide ante, p. 514. " SECT. II.] upon Condition. 531 If, however, the limitation over upon disputing or claiming against the will have none other effect than what the law would produce, if the express disposition had been omitted, the condition will be in terrorem only. So that if a legacy, to which such a condition is annexed, instead of being given to a stranger, be limited over to his executors, who would be entitled to receive it as part of his assets, without any such particular direction, the testator will be considered as meaning no more by the declaration than if he had said nothing upon the subject; and then the bequest falls within the rule of con- struction before mentioned, in regard to conditions in terrorem.(b) But if the testator direct the legacy to fall into the residue upon a breach of the condition, and dispose of that fund, the residuary le- gatee will be a particular legatee of the individual legacy, and as such be entitled to it if the condition be broken. (c) D. Where the time of payment of a legacy and the condition to devest it are inconsistent. When a certain and determinate period is appointed for the pay- ment of a legacy, and it is given over, upon the happening of a con- tingent event, consistency requires that the devesting clause should be confined within the time when the legacy is payable ; for, as the legatee is entitled to the fund, upon the arrival of the period fixed for its payment, and may spend it as his own, if the contingent event afterwards happen, it is ineffectual. So that, if a legacy were given to B. to be paid within six months after the death of the testator, and it was declared in another part of the will, that if B. died before twenty-one, the legacy should go over to C. ; the contingency of B. dying under twenty-one would be restricted to the period of six months after the testator's death. Hence it follows, that if B. sur- vived the six months he would be entitled to the legacy, although he might die under the age of twenty-one. An instance of this oc- curred in the following case : In Cknt v. Bridges,(d) Mr. Bridges bequeathed to his two young- est daughters 600J. a-piece, to be paid within six months after his decease, declaring, that if both or either of them died under twenty- one, he gave, so far as he might by law, their or her portions or portion to the persons named in the will. Margaret survived the six months, and received her legacy ; but died under twenty-one, having by will disposed of her personal estate. The question was between the persons claiming under her disposition, and those claiming under the limitation over in the will of Mr. Bridges. And it was decided in favour of the former, upon the principle before stated. The legality of conditions in restraint of marriage was considered in the first section. It is now proposed to ascertain with as much certainty as the cases allow, 3. When conditions in restraint of marriage will and will not be considered as effectually performed, and when the performance is become unnecessary ; commencing with A. Conditions requiring marriages -with consent. It appears from the authorities stated in the beginning of this section, that where conditions are precedent, they ought to be fully (6) Caee v. Russell, 2 Ventr. 352. (c) Vide Lloyd v. Branton, 3 Meriv. 118. et infra, (A. 6.) (d) Finch sRep. 26. 532 Of Legacies [Cn. XIII. performed; and that the questions in those cases., where the terms have not been literally pursued, are, whether the conditions be sub- stantially executed within the intent and meaning of the persons imposing them. So it is in instances of conditions requiring mar- riages with consent of executors or trustees, &c. previously to the vesting of the legacies. The rule of construction is the same, where the like conditions are subsequent, with a limitation over, upon non- compliance with their terms. For the Court does not relieve against non-performance, but merely determines whether the conditions have not been in substance performed, so as to answer the views and in- tentions of testators, though not according to the letter. We shall endeavour to extract general principles applicable to these subjects, and then notice excepted cases, with the. reasons for the exceptions. (A. 1.) At what lime consent ought to be given. As a general rule, it may be stated, that when the consent of ex- ecutors or trustees, or the major number of them, is required to the marriages of legatees, it must be obtained before or at the times of the marriages. For suppose the condition to be precedent, as the legacy, if at all, was to vest upon marriage, if the consent be not ob-' tained at that period, an approbation afterwards cannot be effectual to vest the legacy, since the testator has declared that the period for vesting is marriage; provided the previous assent of his execu- tors or trustees was procured. So also, if the condition be subse- quent, with a limitation over of the legacy upon a breach of it. Because a consent after marriage can never have the effect of de- vesting an interest become-vested in other persons, upon a marriage without consent. For these reasons Lord Hardivicke acknowledged, in Reynish v. Martin,(e) that, as the testator's daughter married without the consent of the trustees, their subsequent approbation was immaterial, " because (as he observed) no subsequent approba- tion could amount to a performance of the condition, nor dispense with a breach of it." In Malcolm v. O'Callaghan,(f) Mr. Stopford bequeathed to his daughter Christian, 2000Z. payable on the day of her marriage, pro- vided it took place with the consent and approbation of his two ex- ecutors, or the survivor of them, his executors or administrators, with a limitation over of the legacy to another daughter, Elizabeth, if Christian . married without such consent. The testator added a codicil, by which he limited over the legacy if Christian died under the age of twenty-five, or married without such consent as aforesaid ; but there was no direction for payment of the money to her at that age. Christian married without the consent of the executors, who approved of it afterwards, and became trustees in her marriage set- tlement. She attained the age of twenty-five. And Sir Thomas Plumer, then V. C. determined the following points : 1. That mar- riage with consent was a condition precedent ; and therefore neces- sary to be performed before the legacy became payable. 2. That a consent subsequent to the marriage did not satisfy the words of the will. And, lastly, that marriage without consent being one of the two events upon which the limitation over was to take place, and had (e) 3 Atk. 331. and see Lord Eldon's observations in Clarke v. Parker, 19 Ves. 21. See also Long v, Ricketts, 2 Sim. 8c Stu. 179. (/) 2 Mad. 349. SECT. II.] upon Condition. 5.J3 happened, although the other was defeated by Christian's attaining twenty-five, yet the executory bequest over was absolute, for Chris- tian's attaining that age could impart no right to her in the legacy, since it was not given to her at that period, (g) or upon any other event than marriage with consent. The last case is a determination that the expressions "consent" and " approbation" are to be considered of the same import. And it is not a little surprising, that a decision should be found acknowledg- ing a distinction between them in regard to the present subject. In BurUton v. Humfrey,(h] the trust of real and personal estates was declared in favour of the testator's daughter, if she married with the consent and approbation of his trustee, testified in writing ; but if she married without such consent or approbation, or died unmar- ried, the property was devised over. The daughter married soon after the testator's death, not having previously made any application to the trustee for his consent. He, however, about eleven months after- wards, gave his approbation in writing, expressing his belief at the same time that he should have consented before the marriage, if he had been applied to for the purpose. Lord Hardwicke determined, with respect to the personal fund, that the condition was performed by the subsequent approbation of the trustee. In the above case, Lord Hardwicke endeavored to distinguish between the sense of the words " consent" and " approbation ;" and he held, after a severe struggle, that although the terms of the con- dition, upon which the bequest was made, joined the words " con- sent" and " approbation" by the copulative " and," whence it might be supposed that each word might have been used in the same sense, yet as the limitation over was in the disjunctive, i. e. upon marriage without consent or approbation of the trustees, his Lord- ship said he would adopt the latter clause instead of the former. It can be scarcely doubted, that his Lordship's decision was con- trary to the intention of the testator; for it is clear, from the terms of the devise, that he used the words " consent" and " approbation" in the same sense. The marriage of the daughter was the event upon which the devise was made to her. And that it might not be an imprudent one, the testator directed it to be had witli the con- sent and approbation of his trustee. That consent and approba- tion, in order to answer the end in view, must necessarily have been intended by the testator to precede the. marriage ; and Lord Hard- wicke' s criticism on the clause limiting over the devise, seems; to have had no other effect than to impute to the testator an inten- tion which never entered into his mind. Compassion for the daugh- ter appears to have influenced his Lordship, and to have warped his better judgment, against which he effectually struggled in mak- ing his decree. A decree which authorizes this unreasonable pro- position, that if consent or approbation, after the marriage had been solemnized eleven months, be sufficient, it must equally be so at any time during the life of the trustee. During all which time, the question whether the marriage was solemnized in conformity with the condition would necessarily continue in uncertainty.(i) (e} A circumstance distinguishing the present case from that of Randal v. Payne, stated ante, p. 519. ^ ^ (A) Ambl. 256. (i) See 19 Vcs. 21. VOL. I. 3 1 534 Of Legacies [Cn. XIII. Having shown at what period consent to the marriage ought to be given, we shall proceed to consider (A. 2.) From what persons the required assent ought to be ob- tained. The confidence reposed in individuals by testators, whether rela- tives or strangers, to decide upon the propriety of the marriages of their children, is a personal trust, (fe) and must therefore be strictly pursued in the performance. It resembles leasing powers and pow- ers of sale.(i) Hence, if the consent of two or more persons be required to the marriage of a legatee, the assent of all of them (if living) must, in general, be obtained, unless the testator have ex- pressly declared the approbation of the majority to be sufficient. In Clarke v. Parker,(m) Lord Eldon said, " there is no case in which it has been holden, that the consent of three trustees being required, that consent, which, if there were only two, would have been quite sufficient, would do ; the third not having been at all consulted. There was a discretion in the third, as well as in the others ; and there is no authority, that, if the consent of three be required, a marriage with consent of two only is that which the will has prescribed." Contrary to this, Mr. rftkyns, in his report of Lord Chief Baron Comyrfs judgment in the case of Harvey v. Aston,(n) imputes to him a dictum, that the "consent of the major part of the trustees" is sufficient. But in Clarke v. Parker, Lord Eldon expressed his belief that no such dictum ever fell from the Chief Baron ;(o) since, in his reports,(p) (his own publication of his argument upon the ad- vice given by him to Lord Hardwicke,) as also in a manuscript note which Lord Eldon had seen, no such passage was to be found. There is however, a peculiarity belonging to those conditions, when legacies are the subjects, which makes the rules of the Com- mon law inapplicable to them in every instance. This anomaly is produced from the adoption of the Civil law in the construction of personal bequests to a certain extent; according to which, where the condition is precedent, it is considered to be performed within the meaning of the testator, if executed cy pres when the whole cannot be literally fulfilled from unavoidable circumstances. (9) The principle is the presumption of the testator not requiring the performance of impossibilities, and that his intention will be sub- stantially carried into effect, by permitting it to be executed so far as it can be done. Whereas, by the Common law, as before shown, (r] if a precedent condition cannot be literally performed, no mat- ter from what cause, the interest, to arise upon the performance only, will never vest. The sole questions asked by that law, are, Does the devisee answer the description of the devise 9 Has he fulfilled all its conditions'? It does not speculate upon the intention. Hence, so far as the Civil law is followed in the construction of personal bequests, the rule of the Common law is superseded ; consequently, precedent conditions, requiring marriages with consent if substan- (*) 2 Dow. Parl. Ca. 89. (0 See 3 East, 410. and "Law of Husband and Wife," 1 vol. p. 116. (m) 19Ves. 17. (72) l Atk. 375. (o) 19 Yes. 15. 24. ( /) Com. 726. (7) Swinb. pt. 4 sect. 8. 4 Bro, C, C. 328. (r) Ante, p. 505. SECT. II.] upon Condition. 535 tially complied with, when they cannot be executed according to the letter, will be considered as sufficiently performed to entitle the lagatee to the legacy. It follows, from 'these observations That, if a precedent condition require the consent of three trustees to the marriage of the legatee, and one of them die ; the approba- tion of the survivors previously to the marriage will be a sufficient compliance with the condition. For, although the testator must have supposed that all his trustees would be living at the time of the legatee's marriage, or he would not have required their joint con- sent, yet doubtless he could not mean, that by the accident of the death of one of them, his bounty, or, it may be, his obligation as a parent, should be disappointed. It may be reasonably presumed, that if the possibility of one of the trustees dying before it was ne- cessary to consult him on the marriage, had occurred to the tes- tator, he would have expressly empowered the survivors to consent or disapprove of it. And since a prudent connection was the es- sence of the condition, and the object was attainable in securing it by the previous consent of the two trustees, the case seems to fall under the exception in the civil law to a strict performance of the condition ; viz. when a testator appears to have more regard to the end, than to the means prescribed for its attainment.(s) We must, however, be careful to distinguish between conditions precedent and subsequent. For, when the condition is subsequent, and marriage without the joint consent of two or more trustees or executors is made the contingency upon which a legacy is to be de- vested, and to go over to another person, then, if, by the death of one or all of them, it is impossible to perform the condition lite- rally, the legatee will be excused from performance altogether, upon the principle before stated, (t) that subsequent conditions to devest estates are construed with great strictness. Consequently, if the terms of it cannot be performed, in each and every particular, the whole condition becomes void and the interest of the legatee absolute. The following are authorities upon this subject : In Peyton v. Bury,(u) the testator gave his residuary personal estate to Jane Styles, provided she married with the consent of his two executors ; but if she married without it, he gave the residue to j$. B. One of the executors died, and Jane afterwards married without the consent of the survivor, upon which A. B. claimed the property. But the Master of the Rolls, after declaring his opinion that the condition was subsequent, upon the presumed intent of the testator not to keep his residuary estate in contingency during an indefinite period, which might have been for twenty or thirty years if the condition were precedent, determined that Jane took a vested interest immediately upon the death of the testator, defeasible upon her marriage without the joint consent of the executors; a condi- tion, which having become impossible by the death of one of them, her qualified interest became absolute. His Honour therefore dis- missed the claim of Jl. 13. In the next case, all the executors died before the marriage of the legatee, and the decision was similar to the last authority. () Swinb.pt 4. sect. 7. art. 4. and see 19 Vcs. 16. (t} Ante, p. 514. 523. (w) 2 P. Will. 626. and see Jones v. Suffolk, 1 Bro. C. C. 5Hammond,(f] Jinn Hutcheson (by mistake named Jones) was entitled to a legacy of 1500L- under the testamentary appointment of her step-mother Frances, payable, after the death of her father. By a codicil, the testatrix declared, that if Ann married during the life of her father, without his written consent, the legacy was to go according to his appointment. Ann married with the re- quisite assent; and it became necessary to consider, whether, if she became a widow in the life-time of her father, and married again without his consent, a forfeiture of the legacy would be incurred. And Butter, J. declared in the negative. In Crommelin v. Crommelin,(g) Lord Rosslyn adopted the prin- ciple of the preceding case, holding the condition not to be appli- cable to a daughter, who married, and became a widow during her father's life That was a bequest in trust for the testator's natural daughters Mary, Juliana and . Hannah Barker, payable at certain ages, or sooner upon their' marriages with consent of the testator's- trustees, or the survivors ; with dispositions of proportions of their shares upon their marrying without such consent. Juliana being in India, married before the death of her father, with the consent of one of the trustees, and with the subsequent approbation of her father ; in whose life-time she became a widow, and married again shortly after his death (being still in India and ignorant of his will) with the consent of the same trustee. Juliana claimed her portion, but her right was disputed upon' the ground, that at the time of her second marriage with consent of one trustee only, she was an object of the above condition, with which she had not complied. But Lord Rosslyn was of a contrary opinion ; observing, in the delivery of a very elaborate judgment, that there was nothing in the will to show a second marriage to be in the testator's contemplation , and he de- cided the case upon the principle, 'that Juliana having married (with (. 508. et seq, (f) As to the effect of endeavours to perform conditions, see Smith v. Wilson, 8 East, 443. and the authorities referred to in that case. (k) See ante, p. 554. SECT. IV.] upon Condition. 563 But possibly a legatee may be ignorant of the testamentary benefit bequeathed to him ; to which cause the non-performance of a con- dition annexed to the legacy may be imputed. It may, therefore, be necessary to consider, SECT. IV. The duty of executors to give notice to legatees of conditions upon which the legacies are to take effect or be devested. 1. When the subject is personal estate. It seems that legatees must obtain information of conditions an- nexed to their legacies, as executors are under.no obligation to give notice of them, unless by particular direction. Hence it follows, that it will not be a sufficient excuse for a breach of the conditions, for the legatees to allege and prove they had- no knowledge of the terms upon which their legacies were given. In Chauncy v. Graydon,(l) legacies of 1000Z. South Sea stock were bequeathed to Peter and Cassandra Tahourdin at twenty-one, or on marriage with the consent of their father, &c. with a limitation over, upon their death before that age, or marriage without consent. Thev broke the condition, and alleged in excuse their ignorance of it. But Lord Hardwicke determined that circumstance to be insufficient to prevent a forfeiture ; upon the principle, that "where a condition is annexed to a devise of real or personal estate, and no notice re- quired by the will to be given, nor any person obliged to give it, the legatees must perform the condition, or cannot be entitled ; and if they omit to do so, a forfeiture incurs when there is a limitation over."(ra) Consequently, where no person is bound to give, the parties themselves, must take notice, as in that case; the testator not having imposed any obligation upon his executors to give it. This doctrine was assented to by Sir W. Grant in the case of Bur- gess \. Robinson before stated. (w) And the law is the same in dis- positions of real estates ; which leads us to the consideration 2. Of the necessity forgiving notice of conditions annexed to de- vises of real property. The following distinction prevails upon this subject, when the devisee is heir at law, and when* be is a stranger, viz. that notice is necessary to be given to the heir, before a forfeiture. can attach for a breach of the testamentary condition ; 'but that no such notice is required to be given to the stranger; and upon this reasoning: The heir has a title paramount the will, i. e. by descent, and he is presumed to enter and claim in that right. As, therefore, the devise is not necessary to his title, he will be considered to know nothing of it, nor of the condition, until he receive notice. But the stranger has no title, except under the will imposing the condition. Hence he is presumed to have knowledge as well of the condition as of the devise. (o) (/) 2 Atk 616 (m) 2 Atk. 619. () Ante, p. 516. (o) bee the following cases: Frances' case, 8 Rep. 89. b. Porter v Fry, 1 Ventr. 199, 1 Mod. 300. 314. Sir T. Rayam. 236. Malloon v. Fitzgerald, 3 Mod. 28. Skin. 125. Whaley v. Read, Lutw. 804. 809. Burleton v. Humfrey, Ambl. 259. and Doev. Beauderk, 11 East, 657. Randall v. Eeley, Cart. 92. 170. is not law, and see Lord Ellenborough's comments upon it in the last case. 564 Of the Executor's Assent. [Cn. XIV. In Doe v. Beauclerk, referred to in the last note, Lord Elleribo- rough expressed his sentiments upon the propriety of the following distinction, " where a party is really ignorant of the existence of the instrument, in which the condition is -contained, and where he would have good title if there were no such instrument, it seems unrea- sonable to. hold that a neglect of the terms of that condition should subject him to a loss of the estate. It would encourage the con- cealing of the instrument, until a breach were incurred, so to decide. And no substantial inconvenience, can result from holding that the person entitled to avail himself of a breach, should take care that the condition was known to. the person who was to comply with it." And in that case, the Court founded its opinion upon the broad ground that neither neglect nor refusal will subject the devisee, who is heir, to lose the estate, unless he has notice of the condition. CHAPTER XIV. Of the assent of Executors to, and the payment and appro- priation of Legacies. SECT. I. Of the Executor's assent. . ' i. The necessity and effect of it. 2. Nature of legatee's interest prior to assent. 3. Consequences of legatee's taking his legacy with- out assent. 4. When and by whom assent may be given. 5;- What will be a good assent. A.^-Where the absolute interest is given to the legatee. . . B. Where the fund is gwen in succession. C. Where a partial interest is given to an ex- ecutor. 6. Presumptive assent. 7. Conditional assent. 8. The retracting of assent. SECT. II. Of the payment of Legacies . I. Out of what fund. 2. Whether in sterling money or in currency. 3. By whom the exchange is to be paid. 4. Jit what time legacies to be paid. A. When the bequest is of a gross sum of money. B. When of an annuity. C. Of apportionment of annuities and divi- dends in the nature thereof. 5. To whom to be paid. 'A. When legatee is an infant. B. When a married woman. C. When a lunatic. SECT. I.] Of the Executor's Assent. 565 D. When a bankrupt. E. When to a legatee abroad, and not heard of- 6. Jls to deductions and retainer under the stamp acts. A. In respect of what legacies liable, and the quantum. B. By whom to be paid or retained. C. At what time payable, &c. D. Retainer by executor : 1. for his own benefit. 2. for the benefit of another. 7. Retainer by executors generally by way of sett off against legatee's debt. 8. Presumptive payment of legacies. SECT. III. Of the appropriation of Legacies of Money or Stock. 1 . Legatee's right to appropriation. 2. Of appropriation in pais. S.-r~Ofthe effects of appropriation on the fund itself. SECT. I. Of the Executor's assent to Legacies. 1. ITS necessity and effect. The law makes an executor, to the amount of the assets, responsi- ble to every person having demands upon his testator. In order to enable the executor to administer the estate properly, it vests it absolutely in him ; and as it trusts to him the due administration of the fund, according to the different natures of the claims thereon, it also prohibits persons having demands upon the estate from ap- propriating any parts of it, in satisfaction of their claims, without the previous consent of the executor.(a) Hence follows the necessity for a legatee to procure the executor's assent to the property be- queathed to him ; for until that consent be obtained, his title is in- complete. As this requisite of consent is founded upon the duty of the executor duly to administer the assets, and the personal respon- sibility which he incurs upon a breach of it, it is a consequence, that his assent is only necessary in instances falling within the range of his office as executor, and not to devises of freehold estates in fee, for life, or for terms of years ;(&) but whatever are personal assets to be administered, whether chattels personal or real, and whether specifically or generally bequeathed, they cannot be taken posses- sion of without Of the Executor's Assent. [Cn. XIV. must be considered as a legacy ; so that the case falls within the general rule, which requires the executor's assent previous to the vesting of legacies. (c) With respect to government stock or annuities, it appears to have been the practice of the Bank of England, grounded upon the sta- tute 5th William and Mary, cap. 20, by which the Bank was insti- tuted, and upon the other Acts of Parliament which regulate the devise of property transferrable at the Bank, (by which the probates of wills are directed to be there deposited, for the purpose of having the trusts extracted,) that where stock, &c. has been specifically bequeathed, without the intervention of trustees, to permit the trans- fer to be made to the legatees, and not to the executor ; and when trustees have been appointed, then to the trustees, with a restriction not to allow of a transfer to any other persons, except those named in the will. It seems, however, that this practice is erroneous, and that the executor having the legal right to the specific as well as to the general assets, to pay debts, &c. has the sole right to call upon the Bank to transfer the stock into his name ; as no interest in it vests in the legatees prior to his assent. It also appears to be im- material whether such property be given specifically in the strict sense of the word, or as a residue ; such property being to be con- sidered in no other view than the other general assets as to this pur- pose, and therefore subject to all the incidents of a testamentary disposition of personal estate. (d) With respect to the effect of the executor's assent The consent creates no new title, but merely perfects that which is derived under the will; consequently, if the bequest be void, the assent of the executor is nugatory. (e) But when the devise is good, and consent is given, the title of the legatee from the testa- tor will be complete ; and although the executor may have wasted the assets, the persons affected by it can only have redress, against the executor personally. Accordingly, in Foster v. Spencer,(f) it was said, if lessee for years devise his term to another, appoint executors, and die ; and the executors commit waste, and afterwards assent to the bequest, although between the executors and the devisee it has relation, and the latter is in by the devisor, yet an action of waste shall be main- tained against the executors in the tenuit. By assent the legal interest, which the executor had in the fund, ceases, (g) and the entire property, legal and equitabk, becomes vested in the legatee. 2. In regard to the nature of the interest of a legatee, previously to the executor's assent. Although, as we have seen, the assent of the exeoutor.be neces- sary to complete the title of the legatee ; yet, before such assent, the legatee takes an inchoate right in the subject, which may be forfeited ; and it is transmissible to his personal representatives, in the event of no disposition .by will.(^) But (c) Ves. sen. 1. 50. and see ante, p. 325. etseg. (d) Bank of England v. Moffat, 3 Bro. C. C. 262. Bank of England v. Par- sons, 5 Ves. 665. Bank of England v. Lunn, 15 Ves. 569. (e) Bransby v. Grantham, Plowd. 525. /) Cited in Saunder's case, 5 Rep. 12. b. and see ante, p. 314. ft stg. Bridg. 55. (A) Off Ex. 236. SECT. I.] Of the Executor's Assent. 567 3. Suppose the legatee to take his legacy without the consent of the executor, what will be the consequences'? He will be liable to an action of trespass or trover by the execu- tor.^) And it has been alleged and admitted, that if the devisee of a term for years enter upon the lands without the executor's per- mission, he will be considered a disseisor.(&) Besides, if, before the executor have proved the will, or under- taken the trusts of it,(7) a legatee intermeddle with the estate, by taking possession of the property bequeathed to him, without the executor's leave, he will not only be liable to the action of the ex- ecutor after probate, but also in the mean time to the suits of the testator's creditors, as an executor de son tort. But if, before any action be commenced, he pay over to the lawful executor the whole of the assets he received, that act will purge the original fort, and entitle him to the plea of plene administravit. This doctrine seems to have been settled by the cases referred to in note.(w) We shall now consider 4. By whom assent may be given. Where an executor is appointed, he may assent to a legacy be- fore he proves the will.(n) And in instances where there are two or more executors, the assent of any one of them is sufficient.(o) So also, if one of the executors be a legatee, his single assent to his own legacy will vest the complete title in himself;(/j) and, ac- cording to Perkins, even before probate or administration.^) Again, if the subject be entire, and be given to all the executors, the assent of one of them to his own proportion will be sufficient.(r) But if an executor-legatee renounce probate, by which act he places himself in the same situation as if he had never been appointed to that office, his assent to his own legacy will be ineffectual,(s) and if he take it without the permission of the lawful administrator, he will incur the same liabilities as any other legatee so acting, and which we have before mentioned. When the executor is an infant, the Ecclesiastical Courts grant administration to a person durante minore atate of the infant ; but the law in such case is now very different from what it formerly was. By the Civil law followed by those courts and adopted by our own,() infancy determined at the age of seventeen ; at which time probate of the will was granted to the executor, who, from that period, was competent to discharge the duties of the office. The powers of the administrator during infancy were confined to the performance of mere acts of necessity. None were permitted which might be in the least degree prejudicial to the infant, might assent to a legacy ; but if there was a deficiency of assets, such assent would have been void.(w) In like manner, after the executor attained his age of seventeen, he was at liberty to assent to a legacy j but as he still continued by the law of this country (i) Off Ex 27. () Owen, 76. (0 Read's case. 5 Rep. 34. (m) Padget v. Prie&t, 2 Term. Rep. 97. Curtis v. Vernon, 3 T. R. 587. Mount- ford v. Gibson, 4 East, 441. 452. J (n)Off. Ex. 49. Godolp. Orph. Leg. 144. Dyer, 372. 2Freem 23 ) Off. Ex. S23. 3 Atk. 510. ( ft) 1 Roll. Abr 618. (eL Se 572 ' (r) 1 Ro". Abr. 618. Broker y Charter, Cro . Eliz. 92. (0 Piggot's case, 5 Rep. 29. a. Cro. Eliz. 602. S. C. () 1 Vern. 328, 568 Of the Executor's Assent. [Cn. XIV. under the disability of infancy, and, therefore, under its special protection, it would not give validity to any acts which affected him personally, or his estate ;(#) so that, if he assented to a legacy, when there was a defect of assets, the assent was void. This state of things, attended as it was with great practical inconvenience, induced the legislature to interpose, and by a statute passed in the reign of the late king,(i/) it was enacted, that where an infant is sole executor, administration with the will annexed shall be granted to the guardian of the infant, or to such other person as the spiri- tual court shall think fit, until the infant shall have attained the full age of twenty-one ; at which period, and not before, probate of the will shall be granted to him. And that the person, to whom such administration shall be granted, shall have the same powers vested in him, as an administrator by virtue of an administration granted to him durante minore eetate of the next of kin: that is, he shall be complete and absolute administrator for every purpose during the continuance of his office, and may, upon his own responsi- bility, perform the same acts as the next of kin, in the one case, and the infant executor, in the other, might have done, if they had been of age, and administration had been granted to them personally. (z) This statute, therefore, has altered the preceding established law upon this subject ; consequently, an administrator durante minore estate of an infant executor may, under any circumstances, give a valid and irrevocable assent to a legacy. If an executrix be a married woman, the assent of her husband to a legacy will be sufficient, for as the law authorizes him to adminis- ter in right of his wife, the power of assenting or dissenting to a bequest is incident to that general authority. (a) But it seems to have been formerly matter of doubt, whether a married woman ap- pointed executrix was competent to assent to a legacy, without the privity and concurrence of her husband. The doubt, however, ap- pears to have been removed by the decision in RusseVs case,(&) according to which, as she is adjudged incapable of releasing a legacy, without her husband, by reason of the injury he might sus- tain ;(c) so her assent to a legacy without his permission must be nu- gatory and ineffectual ; and of this opinion was the Court in the case of Cookes v. Bellamy.(d) The next subject is 5. What what will be a good assent. And first, A. Where the absolute interest is given to the legatee. Assent may be either express, or implied : but, since the assent to a legacy by an executor is in its consequences of great importance to him, it is but reasonable that the act or expressions deemed suf- ficient to impart that assent, should be unambiguous. They ought to be such as to leave no doubt in the mind of a Judge, that the ex- ecutor meant to confer his assent to the vesting of the bequest. It is stated in a book of great authority, that if the executor say to a legatee, " God send you joy of your legacy," those expressions will amount to an assent ;(e) a proposition, which it is presumed, (x) Prince's case, 5 Rep. 29. b. (y) 38 Geo. 3. c. 89. (z) 1 Com. Dig. tit. Administration (F.) (a) See " Law of Husband and Wife," 1 vol. p. 184. 1 Leon. 216. Off. Ex. 321. (A) 5 Rep. 27. b. (c) Cro. Car. 519. (rf) Sid. 188. (e) Touchst 456. SECT. I.] Of the Executor's Assent. 569 ought to be received with qualification. For suppose an executor, before he has ever had the opportunity of examining the testator's affairs, and at the time when the will is opened and read, perceive that a friend, one of the executors, is numbered in it, upon which he expresses himself to the above effect, it would be very unreason- able to construe words of congratulation into terms of assent to the legacy, so as to involve the unsuspecting executor in the conse- quences of a devastavit. On the other hand, if those expressions be uttered, after the executor has had sufficient time to acquaint him- self with the state of the assets, there seems to be fair ground for applying them to an intention of assenting to the bequest. When the executor informs a legatee, that he intends him to have the legacy according to the devise, there can be no doubt of his meaning to impart his assent by those terms. (/) But when the expressions are more equivocal, as suppose the executor to say upon application for the legacy, " that the testator has left all to him," such or the like phrases will not be converted into assent.(g) If, however, he had declared, that " the money lay ready for the legatee whenever he would call for it," such a declaration would have been a good assent to the bequest. (h] In agreement with the distinction before noticed, if an executor request the legatee to dispose of his legacy, his assent is necessarily implied, (i) Or if the rents or interest of a bequest be directed for the main- tenance of the legatee during minority, and the executor commence so to apply them, his consent to the principal will be presumed. (Ac) Upon the same reasoning, it will be a good assent to the bequest, if the legacy be subject to a charge, which is paid by the executor; for assent to the charge is assent to the disposition of the fund, out of which it is to be satisfied. (1} When a legacy is absolutely given to an executor, his assent to take as legatee must be governed by the distinctions before noticed. If he expressly declare that he assents to his legacy, there can be no question ; but if he merely possess and use the property, consistently with his office of executor, such a possession of it can never be con- sidered as a constructive assent to the bequest. (m) Suppose then the executor to say " he will take his legacy accord- ing to the will;" that is an election to take it as legatee. (w) Or, suppose the subject bequeathed to an executor be a term for years, and he apply the rents to his own use ;(o) or if, in disposing of the term he recites in the instrument that he has it by devise ;(jp) or, if there be other executors, and he enter into possession of the term in exclusion of his co-executors. (g) In these, and similar cases, he will be considered as having assented to the devise, be- cause such acts manifest that he dealt with the term not as executor but in the character of specific devisee of it ; and indeed, if the con- structive assents last mentioned, were in their consequences to make the executor guilty of a devastavit, still he will have the value of the ) Touchst 456. ($) 1 Roll. Abr. 620. (A) Cowp, 293. Lam/iel's case, 10 Rep. 47. a. 52. b. Off. Ex. 322. (/t) Leon. Rep. 129. Paramour v. Yardley, Plowd. 539. " 1 Stra. 70. (w) 10 Rep. 52. b. Baker v. Hall, 12 Ves. 501. (n) 1 Lev. 25. Roll. Abr. 619. (ft Ibid. 620. (q} Dyer, 277. b. I 570 Of the Executor's Assent. [Cn. XIV, whole term as an equivalent to indemnify himself against those con- sequences. This would not be the case, however, if the devise had been to him for life only; and this consideration has induced the law to require stronger evidence of assent in the latter than in the former case,(r) as will be shown in considering B. What will be a good assent, when a legacy is given to per- sons in succession. Where a legacy is limited to several persons in the nature of re- mainders by executory devise, the executor's assent to the first taker will be considered an assent to those who are to succeed ; e converso his assent to one of the subsequent takers will enure to the benefit of the persons who take prior interest in the property bequeathed ; and the reason is, because the several interests of the legatees con- stitute in the whole but one estate. If, therefore, a term for years were devised to A. for life or years, or for so long as Jl. continued unmarried, with remainder to B. and the executor assented to the interest of Jl. such assent would extend to B. so as to vest his in- terest. In like manner, if the assent had been given to B. it would have enured to Jl.(s) And the sante rule seems to hold in bequests of chattels personal, for if the use of a book, glass, &c. were bequeathed to C. with an absolute gift of it after C.'s death to D. an assent to C. would also vest the interest which D. took by the will.(J) The law is the same (though it seems to have been once otherwise, )(u) whether the subsequent legatee be entitled to a rent given out of a term, and not to the remainder of the term itself. Accordingly, if a term were devised to Jl. for life or for years, with a rent out of it to B. the assent of the executor to A. or to B. would, in either case, enure to the benefit of both ';( x] and perhaps for this reason; as the assent of the executor is required as well for the benefit of creditors, as for his own safeguard, an inference arises from his assent to one of the legatees of the specific property, that he has no occasion for the term or rent to pay debts; for if he had, then his assent to either of the legatees would be improper, as both ought to abate pro rata. What will amount to an assent, has been considered in the preceding subdivision. C. Suoh appears to be the law, when none of the legatees are ex- ecutors, but when the first devise of a chattel is to an executor for life, with a limitation to those persons in succession, the law requires a stronger indication of the executor's assent to his partial interest, than where the entire property in the subject is bequeathed to him. The reason of this distinction is stated by Gibbs, C. J. in the follow- ing words : " It is clearly settled, that where an executor takes an interest in a leasehold estate for life, he must do something more than enter in order to give assent .to his legacy ; but where his inte- rest is absolute, his entry does assent to the legacy : there is a sub- stantial reason for this distinction ; for if his general entry on his life estate were an election to enter as legatee, it would necessarily con- firm the remainder devised over ; and that might happen in cases wherein he might want the estate in remainder for sale, in order to fr) 7 Taunt 221. () Bro. Abr. "Devise," 235. s. 13. Plowd. 516. 519. Com. Dig. "Adminis- tration," (C. 6.) Off. Ex. 236. Perk. sect. 574. 3 P. Will. 12. (0 Plowd. 519. 543. (w) SBulsU 122. Bridg. 55. (.r) 8 Rep. 95. SECT. I.] Of the Executor's Assent. 571 pay the testator's debts : such an assent would be a devastavit in the executor, which might be a grievous hardship to him. If the devise to him be absolute, the same reason does not exist ; for he has the value of the whole term, as an equivalent, to indemnify himself against the consequences of the devastavit. "(y) The rule then may be thus. stated; that where a partial interest in a term of years is given to an executor, with a limitation over upon his death ; if he enter into possession generally, he will be consider- ed as entering qua executor, and not as devisee. (2) In Pannell v. Fenn,(a] the general rule is thus laid down : " When a particular interest in a term is given to executors, and the residue to another person, the entry of the former shall not be an election to take it as a legacy, except there be an express declaration of their intent ; for otherwise they should be charged for the residue as a devastavit, which the law will not enforce ; but if the entire term be given to the executors, it would be otherwise, for there -is no mischief." It is not, however, necessary, that an executor-legatee of a term should expressly declare his assent to take as devisee, but his assent may be inferred, by implication, from his dealing with it. The fol- lowing rule may be laid down upon the subject, " That, if an execu- .tor, in his manner of administering the property does any act which shows he has assented to the legacy, that shall be taken as evidence of his assent, but if his acts are referrible to his character of execu- tor, they are not evidence of an assent to the legacy. "(6) If then the executor-devisee demise the term by the description of executor, that act cannot be construed an assent. (c) Neither will a demise of the term in his own name, without such description, have that effect ; because the act is quite consistent with his power and character of executor. (d). So also if such executor, where there are others appointed, solely enter, or in addition demise the term, reserving the rent to himself, executors, &c. still no assent to the devise will be raised by impli- cation : because, as executor^ he alone had power to demise the term, and consequently to reserve the rent to himself, &c. The act, there- fore, is referrible either to his character of executor or legatee ; and it is not sufficient, to constitute an implied assent, to show, that the act is equally applicable to the title of legatee, as to the character of executor, but it must appear that the act was done rather in the character of legatee, than in that of executor.(e) In Doe v. Hayes,(f) the doctrine upon this subject was maturely considered. In that case the testator gave the interest he had in an estate for an unexpired term of years, to his nephew Samuel Hayes for life, with remainder over, appointing Samuel and two other per- sons trustees and executors, with power for Samuel during life, and afterwards for the surviving executors and trustees, to demise the lands for twenty-one years. Samuel alone entered upon the property at the testator's death, and demised it for fourteen and forty-two years, reserving the rent to himself, his executors, &c. He also made the contract in his own name, and disposed of the estate by (y} 7 Taunt. 321, (z) 10 Rep. 47. b. (a) Cm. Eliz. 347-8. 2 P, Will. 531. (A) 7 Taunt. 222. (c) 1 Leon. 216. (rf) 7 Taunt. 222. ( Lordship's opinion that they ought to be paid in the currency of England, notwith- standing the testator resided in Jamaica. So in Pierson v. Garnet,(z] the Bishop of Clogher in Ireland gave several legacies expressly to be paid in sterling or English money, and others indeterminate as to the fund. The will being made in Ireland the question was, whether the latter legacies should be paid in sterling money or Irish currency. And the Master of the Rolls determined that they should be discharged in the cur- rency of Ireland, upon the authority of the last case, declaring that legacies must be paid in the currency of the country where the will is made. Also in Malcolm v. J\lartin,(a) the testator having his domicile in the island of Antigua, made his will there, and gave to his sister the interest of 1000/. sterling for life, and the capital at her death between the plaintiffs. He then bequeathed to the children of Mrs. Glass and to the children of Mrs. Lyon (both of them then dead) " the interest of 1500/. for life," &c. Whether the latter legacy was to be paid in Antigua currency or in sterling money of Eng land was the question; and Lord Jllvanley, M. R. directed the le- gacy given in sterling money to be paid in sterling money, and that bequeathed generally to be paid in Antigua currency. Such being the rule on this subject in regard to personal bequests, it remains to be considered, -whether a charge of legacies upon real estate, or the gift of them in the first instance out of that fund, will make any difference. And, () 2 Atk. 466. (.r) 2 P. Will. 89. (y) 2 Atk. 465. 2 Blights Parl. Ca. 91. (z) 2 Bro. C*C. 39. 47. Pre. Ch. 201 in notis. S. C. (a) 3 Bro, C. C. 50. 576 Of the Executor's Assent. [Cn. XIV. FIRST, When the legacies arc made charges upon lands of a tes- tator situated in a country where he is not domiciled. It is to be presumed, as before noticed, that a testator, in dis- posing of his property, intends it to be governed and regulated by the laws of the nation in which he resides, and where the will is made, without regard to the circumstance of the situation of his estates. It follows from this presumption, that if a man domiciled in England, but seised of plantations in the West Indies or of estates in Ireland, charge, by will made in this country, those estates with legacies generally, without mentioning whether the sums are to be computed in sterling money or in currency, they will be payable in sterling money of England. We accordingly find Lord Macclesfield in JVallis v. Brightwell, stating the doctrine in these words : " If one, by will made in England, give a legacy of 801. it must be intended English money, and it will be the same thing though charged on land in Ireland. And for the same reason that a single payment of 80Z. will be taken tn be English money, so shall an annual payment of 80Z. receive such construction. "(6) It is true, that in the ordinary case of a mere charge upon lands in Ireland, &c. the money is payable in Irish currency. But charges created by wills and marriage settlements are to be construed by the intention of the parties. Their meaning, as to the money being payable in English or Irish currency, is to be collected from words immediately applicable to the point, from the context of the instru- ment, and from each and every part of it.(c) It appears from the cases to be the primd facie presumption, that money charged upon lands in Ireland, by the will of a person domiciled in England, and made there, was intended to be paid in English currency. SECOND, When the provision is given as a rent-charg out of lands, in Ireland, the will being made and the testator domiciled in England. If, as we have seen, the rule of decision in these cases is founded upon intention, and it is to be presumed primd facie that the testa- tor intended the measure of his bounty to be regulated by the cur- rency of the country where he was domiciled and his will made, without regard to the currency of the place where his estates were situated ; it seems difficult, upon principle, to admit of the presump- tion being repelled, from the mere circumstance of the real estate being made the primary or sole fund for satisfying the provision. It is not any objection, that by the law of the country where the' lands lie, a tender of the nominal amount in currency will be a sufficient payment, though less than the real amount in value in the currency of the place where the will was made. For if the testator, in fixing the quantum of charge, is to be considered to have done so primn fade in English currency, and his power is indisputable, then a tender of less in value than the sum mentioned in the will, in the currency of the country where the lands are situated, cannot be a satisfaction of the demand. In Wallis v. Brightwell,(d) the testator lived with his wife in Eng- land, and by will made in England he devised his lands in Ireland (A) 2 P. Will 89. and see Phi/ifisv. Earl ofdnglesea, stated infra, p. 578. (c) 2 Bligh. Parl. Ca. 88. (d) 2 P. Will. 88. 2 Bligh. 91. SECT. II.] Of the Executors Assent. 577 to a trustee for five hundred years, " in trust out of the rents and profits to pay SQL a year to his wife for life." It was argued, that no place being appointed for payment, and the fund in Ireland, the annuity ought to be paid in Irish currency or subject to the charge of remittance. But Lord Macclesfield decided, that the will being made in England where the parties resided, and the provision being for a wife, it should be intended that such provision was estimated in the money of the country where the will was made'. The last case is a direct authority, that where a testator residing in England, by will made there, devises his Irish estates in trust to pay out of the rents an annuity to an individual also residing in England, the annuity is to be paid in English, not in Irish currency It is true that in Pbipps v. .Anglesea, below stated, it may be in- ferred to have been the opinion of the Court that there is. a differ- ence between a gross sum charged upon lands in Ireland and a rent granted out of them, viz. thaf the latter is payable in Ireland, and in Irish currency, and the former not so. But.it must be remarked, that the question as -to rent being so payable was not the point in question in that cause, and the intimation of opinion there given amounts only to a mere dictum of the Court, to which much impor- tance is not to be attached. (e) If such be the rule of construction, where a yearly sum is directed to be paid put of the rents of an estate abroad generally, a fortiori the rule might be the same when the instrument expresses the an- nuity to be " lawful money of Great Britain" Thus in the case of the Marchioness of Lansdowne and the Earl of Lansdowne, on appeal from the Court of Chancery in Ireland,(f) the greater part of the Lansdowne family estates situated partly in England and partly in Ireland, were in the year 1794, settled by .the then Earl and his- eldest son the Earl of Wycome, and a life estate therein limited to the use of his son after the death of his father, with a power to jointure any woman he might marry with " any an- nual sum of money or yearly rent-charge tax-free and without de- duction, to be issuing out of and chargeable upon all or any part of the manors, &c. situate in the said kingdom of Ireland, not exceed- ing 3000/. of lawful money of Great Britain." The son, by deed executed in England, exercised his power in appointing to the ap- pellant a yearly rent charge " of 3000/.~ of lawful money of Great Britain, to be issuing out of and charged upon the same manors," &.c. All the parties resided and were domiciled in England when the power was executed, and the appellant claimed 3000Z. a year in English currency and payment of it in England. The House of Lords acc.eded to the first of those two demands, as by the power and the appointment the money was directed to be paid in lawful money of Great Britain) but it refused the second, because there was no indication of an intent that the rent-charge was to be paid in England. 3. The last case is an authority, that where lands in one part of the dominions of these kingdoms are subjected by the will or ap- pointment of a person domiciled in another, to the payment of a sum of money in the currency of the latter, the exchange upon remit- (c) See the case and observations infra. (/) 2 Bligh. Parl. Ca. 60. 578 Of the Executor's Assent. [Cn. XIV. tance is to be borne by the legatee, because the owner of the estate is under no obligation to tender the money at any place except upon the lands. (g) ' But it is equally clear, that if from the circum- stances of the case it can be inferred that the money was not only intended to be paid in English currency, but also in England, the person or estate charged with the obligation must bear the expense of remittance. . Accordingly in Willis \. Brightwellj(h) Lord ' Macclesfield infer- red, from the circumstance of the testator having made leases of his Irish estate, reserving just so much rent to be paid in London, free from taxes,"as would be sufficient to discharge all the annuities to which they were liable, that he meant his widow's annuity of SOL payable out of those rents, to be remitted to her in England, with- out deduction of the exchange. Upon a similar principle, the decision in Phipps v. the Earl of flnglesea(i) was founded. It appeared that by a settlement made upon the marriage of the Earl with a daughter of the countess of Dorchester, a term of five hundred yeai's was created in his Irish estates, in trust to, raise 12,OOOZ. for the portions of daughters; but it seems from the argument, .that the settlement provided a rent- charge out of the same estates for the wife's jointure, with an ex- press direction that it should be paid in London, without abate- ment or deduction for the exchange ; whereas in the declaration of the trust of the term for raising the portions, there was no such direction. The parties to the settlement resided in England, and in a suit by the daughter (sole issue of the marriage) and her hus- band to have the portion, with the rest .of her fortune, settled, it was the first point in the. cause, whether 'the 12,OOOZ, charged by means of the term upon the lands in Ireland should be paid in England, without abatement or deduction >for the exchange from Ireland to England. And Lord Parker, C. was of opinion, that the portion ought to be paid where the contract was made and the parties resided, and not in Ireland where the lands lay which were charged with the payment. .For that it was a sum in gross, and not a rent issuing out of land. A.nd his Lordship remarked it was certainly the intention of the parties that the portion should be paid in England, and not to send the young. lady to Ireland to get her portion. Lord Eldon made the following remarks upon the last case : -"It is true that in Phipps-'\. Lord Jlnglesea, the distinction is taken in the judgment, which was'urged in this case at the bar,(fe) that there it was a sum in gross, and not a rent issuing out of land ; but that seems to be in answer to that part of the argument in that case, which is founded on the different expressions iof the settlement as to the jointure of the wife and the portions of the daughters. As to the former, which is by name a rent-charge it is provided that it shall be paid in London, without deduction for the exchange; whereas in the declaration of the trust of- the term created for rais- ing the portions, these words are omitted, and it is only said in trust (,) 2 Bligh. Pavl. Ca. 95. (A) Ante, p 576-7. ' (i) 5 Vin. Abr. 209. pi. 8. 8vo. ed. 1 P. Will. 696. S. C. 2 Bligh. Par. Ca. 89. (k) Lansdoivne v. Lansdoivne, su/ira, p. 577. SECT. II.] Of the Executor s Assent. 579 to raise 12,000?. Upon this point of the argument the Court seems to have been of opinion, that in the case of a rent-charge, the addi- tion of such words might be necessary, but that the question as to a sum in gross (which the portion in that case was considered to be) was to be decided on circumstances, and accordingly the decision rests m substance upon the domicile, and the presumed intention of parties resident in England, that a portion secured for a daughter should be paid to her in England.(l) Where the testator is domiciled abroad, and by will, made fhere r gives legacies in the current coin of the place to persons residing in this Country, the legatees are entitled to be paid in England the value at which that coin was estimated where the testator resided, at the end of the year next after his death. Consequently the ex- change upon the remittance will fall upon his estate. This was determined in the case of Cockerell v. Barber,(m) where Mr. Barber, domiciled in India and residing at Calcutta, gave, amongst others, a legacy of 30,000/. sicca rupees to Mr. Cockerell resident in this country. What was the sum in pounds to be paid in England** was the question. And Lord Eldon thus expressed himself: " in all the cases reported on the wills of per- sons in Ireland or Jamaica -and dying there, and Dice versa in this country, some legacies being expressed in money-sterling and others in sums without reference to the nature of the coin in which they are to be paid ; the legacies are directed here to be. computed ac- cording to the value of the currency of the country to which the testator belonged, or where the property was situated. And I appre- hend no more was done in siich cases, than to ascertain the value of so many pounds in the current coin of the country, and the pay- ment of that amount out of the funds in Court. On the other hand, I do hot believe the Court has ever said it would not look at the value of the current coin, but would take it as bullion. At the time of Wood's half-pence in Ireland, whatever was their worth, payment in England must have been according to their nominal current value, not the actual value. So, whatever was the current value of the rupee at the time when this legacy ought to be paid, is the rat lo according to which payment must be made here in pounds sterling. If twelve of Wood's half-pence were worth sixpence, in this Court sixpejnce must have been the sum paid; and in a payment in this Court the cost of remittance has nothing to do with it; so- if the value of 30,OOOZ. rupees at the time the payment ought to have been made in India, was 10,OOOZ. that is the sum to be paid here, without any consideration as to the expense of remittance." His Lordship declared, that this and the other legacies were to be paid according to the current value of the sicca rupee in Calcutta* We shall proceed to consider in the next place 4. At what time legacies are to be paid. And first, A. When the bequest is of a gross sum of money. Where legacies are given generally to persons under no disability to receive them, the payments ought to be made at the end of a year next after the testator's decease. The executor is not obliged to ( /) 2 Bligh. 90. also. p. 95. (m) 16 Ves. 461. 465. and see Cashv. Kennion, 11 Ves. 314. 580 Of the Executor's Assent. [Cn. XIV. pay them sooner, although the testator may have directed them to be discharged within six months after his death ; because the law allows the executor one year(n) from the demise of the testator to ascertain and settle his testator's affairs ; and it presumes that at the expiration of that period, and not before, all .debts, &c. have been satisfied, and the executor to be then able properly to apply the re- sidue among the legatees, according to their several rights and in- terests. But if the state of the testator's circumstances be such, as to enable the executors to discharge legacies at an earlier period, they have authority to do so ; for the legacies . are due at the death of the testator, and the year allowed the executors previous to com- pulsory payment'is merely arrangement for their convenience and safety. (o) And when legacies are given to infants to be paid at twenty-one, with or without a limitation over to the survivors upon the death of any of them -dying under that age, each child will be entitled to receive his legacy or proportion upon attaining that age, as was shown in the second chapter. (p) And it seems that if the money be in the Court of Chancery, it will permit a transfer to a person duly authorized by him to accept it.(q) When a legacy given generally, so as to fall within the before mentioned rule, is subject to a. limitation over upon a subsequent event ; the devesting contingency will hot prevent the legatee from receiving his legacy, at the end of 'the year after the testator's death ; and he is under no obligation to give security for repayment of the money, in case the event shall happen. The principle seems to be that, as the testator -has entrusted him with .the money without re- quiring a security,, no person has authority to require it.(r) In Griffiths v. Smithes] the plaintiff .was entitled, under the will of his uncle, to an estate tail in remainder, expectant upon the de- termination of a precedent estate tail limited upon an estate for life, in his uncle ? s real estates. By the same will a legacy of 20001. was given to the plaintiff upon the death of the testator's widow, to be paid at twenty-one ; provided if he at any time became seised -of the testator's real estate, the legacy should go over to other persons. The plaintiff attained his age of twenty-one after the death of the testator, and the real estate not having come to him,*he claimed im- mediate payment 'of the 2QOOZ. And Lord Rosslyn ordered the money to be paid to the plaintiff, and no security appears to have been required from him. Upon the authority of the last case, Sir W. Grant determined the case of Fawkes v. Gr.ay.(t} There Mrs. Millegan gave a legacy of lOOOi. to Mary Fawkes, but on condition that if she succeeded to a particular estate by the determination of an estate tail in f Marian Paterson, the legacy was to be void. Notwithstanding Marian was living, Mary Fawkes insisted that she was entitled to receive the money for payment of which she commenced the suit. The legacy had been invested, and Sir W. Grant directed the stock in which it stood, to be transferred to Mary and 'without security. (n) See Benson v. -Maude, 6 Mad.- 15. ' (o}-Jtnte, p. 376. (/*) Ante, Ch. II. sect. 2 sub-div. 4. (7) Hillv. Chap.rn.an, 11 Ves. 239. and see Carr v. Eastabrook, 2 Cox. 390. (r) Vide ante, Chap. X. sec. 5. p. 404-5. (s) 1 Ves. jun. 97. (0 18 Ves. 131. SECT. II.] Of the Payment of Legacies. 581 But it seems, where a legacy is given upon a condition to do or abstain from a certain act, and the time of payment is arrived, a court of equity will require security from the legatee for the obser- vance of the condition. Thus, in Colston v. Morris, a legacy was given to a father, upon condition that he did not interfere with the education of his daughter ; on a bill by the father for the legacy, the Court required from him security to that effect, to be approved by the Master, and directed the costs of the proceedings to be paid out of the legacy. (w) When, however, there are outstanding liabilities that may create demands upon the assets of the testator, but which, at the time of the legatees becoming entitled to call for payment of their legacies, de- pend upon contingencies that may or may never ripen those liabili- ties into debts or duties, a court of Equity will not speculate upon the decisions of a court of Law, and oblige the executor to part with the fund either to particular or residuary legatees, without a suffi- cient security for his indemnity against legal consequences. The reason seems to be, that, as the Court cannot protect the executor against the claims of the persons, who may eventually become cre- ditors of the testator, it would be unjust to compel a distribution when it would place the executor in jeopardy. It results from these remarks, that if, at the time before mentioned, a bond of the testa- tor be outstanding, with a condition which may be broken ; or he have entered into covenants, that may render his estate liable in damages ; in such and the like instances, the executor may and ought to insist upon an ample indemnity, before he pay the legacies or part with the residue. This point seems to have been fully considered in Simmons v. Bol- land.(x) In that case, the testator Simmons was a lessee for years of a farm under the mayor and commonalty of Canterbury, at a certain rent ; and under covenants to pay it, and for repairs, &c. It was provided that on non-performance of all or any of those covenants, the lease should be void, and a right of entry was reserved to the lessors. Simmons devised this farm with his real and personal es- tates to the defendant, and another person, (who was dead,) whom he named executors in trust to sell ; and after discharging debts and legacies, to invest the proceeds in their names upon certain trusts ; subject to which, he gave the entire residue to the plaintiff at his age of twenty-five. The executors having' discharged all debts and legacies, without resorting to the farm and other real estates, deli- vered possession of them to the plaintiff, who had attained the above age. There was also a personal residue which they transferred to him, with the exception of so much as the defendant the surviving trustee, thought proper to retain as a security against any claim that might be made upon him, as devisee in trust, and executor of the testator-lessee for rent due, or to accrue, or in respect of the present or any future breach or non-performance of any of the covenants. The defendant admitted that there were no- subsisting breaches of covenant, and no rent in arrear. Under those circumstances, the plaintiff claimed that part of the residue, which was retained by the () 6 Mad. 89. . (.r) 3 Mer. 547. FOL. I. 4 E 582 Of the Payment of Legacies. [Cn. XIV. defendant, insisting that, as there was no actual demand upon the fund, the defendant would be justified at law in disposing of the whole, and consequently ought not to retain any part of it from him; and a variety of cases and dicta were cited on both sides. (y) How- ever the relief sought in equity depended upon the legal question; whether an executor can safely make payment of legacies, or deliver over a residue, while there is an outstanding covenant of his testa- tor which had not been and never might be broken. Sir W. Grant, after noticing the case of Ecles v. Lambert below referred to, stated another of Nector v. Gennet,(z] where the same question arose, al- though in a different shape. His Honour thus detailed the circum- stances : A legatee sued in the Ecclesiastical Court for his legacy. The executor pleaded that the testator, who was keeper of a prison, was bound in an obligation to the sheriff (to an amount exceeding the entire value of the property) for the safe keeping of the prisoners committed to his charge ; which obligation had become forfeited, in consequence of a judgment against the sheriffs in an action for an escape ; and the executors had therefore nothing in their hands to answer the demand. The plea was disallowed ; upon which a pro- hibition was sued, and, it being demurred to, the defendant prayed a consultation. Upon this, the principal question was, whether the escape was such, that the sheriff was suable in respect of it? for, if not, the bond was not forfeited ; and if the bond was not forfeited, then it was said to be clear that the legacy should be first paid, and to this purpose it was argued, that by the Civil law, the legatory must enter into a bond te make restitution, if the obligation should be afterwards recovered, so there was no inconvenience to any. To which the whole Court agreed ; and determined that it was no plea unless the obligation were forfeited. Coke said, " the difference is, when the obligation is for the payment of a less sum at a day to come, it shall be a good plea against the legatee before the day, for it is a duty maintenant, which is in the condition (as 9 E. 4. 12.) But otherwise it is where a statute or obligation is for the performance of covenants, or to do a collateral thing. There, until it be forfeited, it is not any plea against a legatee ; for peradventure it shall never be forfeited, and may lie, in perpetuum, and so no will should be performed." The majority of the Judges being of opinion, that there was no forfeiture, a consultation was awarded, the effect of which, as far as it regarded the question before his Honour, was to leave the Spiritual Court to proceed according to their own estab- lished course, viz. to compel the legatee to give security to refund the legacy, in case of the executors becoming afterwards liable to be sued upon the bond. The Master of the Rolls, after noticing Lord Hardwicke's opinion in Hawkins v. Day,(a) that an unbroken covenant rendered it unjustifiable for an executor to pay a legacy, concluded with observing, that, from the 'state of the authorities, it would be too much for him to order the executor to transfer and pay, without security in case of judgment being recovered at law against him for any future breach of the covenant ; but upon such (y) Harrison's case 5 Rep. 28. b. Philip v. Echard, Cro. Jac. 8. 35. Hav>- kmsv.Day, Amb. 160. 162. and Ecles v. Lambert, Aleyn. 38. Styles 37. 54. 73. (z) Cro. Ehz. 466. (a) A ^ b . 160 . SECT. II.] Of the Payment of Legacies. 583 security being given as settled by the Master, his Honour directed the funds to be made over to the plaintiff. Security is only required from a legatee, where there is danger of his wasting the property, and his inability to replace it : so that, if personal chattels be devised to A. for life, remainder to B., A. will be entitled to the possession of the articles, upon signing and deli- vering to the executor an inventory of them, admitting their receipt, and that they are to go to B. after his A.'s decease, as mentioned in the fourth chapter. (6) Courts of equity have e'stablished the following distinction between legatees and then. representatives in relation to the time of paying the legacies, viz. that if a legacy be given to A. to be paid at twenty- one, and the intermediate interest is not given, and A. die before that period, his representative must wait for the money until A. if living, would have attained twenty-one ; but if the legacy be limited over to B. on the event of Jl. dying under that age, and A. die be- fore that time, B. will be entitled to call for- it immediately upon the death of A. The reasons are these : the representative of Jl. can claim no otherwise than Jl. could, have done, if living. As A. therefore had no power to- call for his legacy before he attained twenty-one, neither can his representative insist upon payment of it sooner. But in the oilier case, B., the legatee over, does not derive his title through A. but under the testator's" will, by a distinct and substantive gift, upon the contingency of A. dying under twenty- one ; so that whenever that event happens, the time of payment not being otherwise postponed, B. becomes immediately entitled to re- ceive the legacy. The following cases will illustrate the above remarks : In Chester v. Painter,(c] the testator gave a sum of money to A. B. to be paid at twenty-one, and directed a part of the intermediate interest to be applied for his benefit. A. B. died a minor, and his executors demanded immediate payment of the legacy. But it was decreed, that the executors should wait for the legacy until such time as the legatee, had he liyed, would have attained twenty-one, it being unreasonable that his executors, who stood in his place, should be in a better situation than the person whom they repre- sented would have been, if he had been in existence. The last case was followed by that of Roden v. Smith,(d) in which the testator gave to his grandchild a legacy of 500/. to be paid at twenty-one, with an allowance of III. a year for maintenance till the age of four years, and 16/. per annum afterwards to twenty-one. The legatee died under age, and upon the claim of its administrator to immediate payment, notwithstanding the intestate would, if living, have been then under twenty-one, it was held by the Court of Dele- gates that the administrator claiming under the infant could not be in a better condition than the infant himself, and therefore he was not entitled to receive the legacy, until such time as the infant would have attained twenty-one. But the principle of these determinations does not apply to cases (b) Ante, p. 231. (c) 2 P. Will. 336. also Crickett v. Dolby, 5 Ves. 15. stated infra. (<0 Amb, 588. 584 Of the Payment of Legacies. [Cn. XIV. where the legacy is limited over to a person, in the event of the le- gatees dying under twenty-one. Thus in Laundy \. Williams,(d) Mr. Laundy having several chil- dren, bequeathed to his sons, Samuel, William, and Edward, and to his daughter Ann Laundy, legacies to be p.aid at their respective ages of twenty-one. But if any of them died during minority, their legacies were to be paid to the survivors. Samuel and Ann attained twenty-one, and received their portions. William died very young, and the two former claimed immediate payment of two*thirds of his legacy, although if he were living he could not be entitled to receive the money, as being under twenty-one. The claim was "resisted} on the ground that the legatees over were not entitled to receive the money sooner than the original legatee would have been, if he had been alive ; and such was the first impression of Lord King. But upon theMistinction before mentioned between the representatives of legatees and legatees over, being stated to him by the Solicitor General, and established by reference to authority ,(e) his Lordship changed his opinion, and ordered two-thirds of William's legacy to be paid to the plaintiffs. It has been determined, that legacies charged upon or eventually payable out of real estate are to be considered exceptions to this doctrine. The case alluded, to is Feltham v. FeUham,(f] in which the testator, having several daughters, charged his real estates with the payment of their portions, viz. 1000L to each daughter at her age of twenty-two, or m'arriage ; but if any of them died before her portion became payable, her share was to go to the survivors. One of the daughters having died before twenty-two or marriage, and another of them having attained that age, it was insisted, that as any particular time was not appointed for paying the portion which had accrued by survivorship it ought to be paid immediately. But it was decided by Lords Commissioners Jekyll and Gilbert, that the accruing or additional portion was not- payable before such time as the daughter to whom it was originally given, would have attained twentyrtwo; and. for the following reasons; that a contrary determi- nation might be injurious to the heir, as also against the intention of the testator, who might have computed within^ what period the portions could be raised with, the least inconvenience to his suc- cessor. Another exception to this rule must be made, in instances where none of the legatees take vested interests, but the original legacies are made to depend upon the happening of precedent contingent events, with a limitation over to survivors generally, upon the death of any of the original legatees before the contingencies take place. For in those instances it is presumed to have been the testator's in- tention to subject the accruing shares or legacies to the same con- tingencies as the original. So that if legacies be given to two or more persons upon the same contingency, with benefit of survivor- ship in event of the death of any of them before the time of pay- ment, the surviving legatees cannot demand payment of the lega- cies or shares accruing to them by survivorship sooner than they (rf) 2 P. . Will. 478. (0 Pafiworth v. Moore, 2 Vern. 283. (/) 2 P. Will. 271. SECT. II.] Of the Payment of Legacies. 585 would be entitled to call for the discharge of their own original shares. This was so decided in the case of Moore v. Godfrey.(g] Sir W. Coventry bequeathed 150CJ. to his .three co-heiresses to be paid at their respective .marriages, as well principal as interest; and if any of them died unmarried her legacy was. to go to the survivors. The plaintiff (one of the daughters) married,- and received her share. The second died unmarried. And whether the 500Z. which accrued to the plaintiff and defendant upon the death of the unmarried sister, was subject to'the condition of marrying, was the question, as the defendant remained single; And Lord Cowper, C. was of opinion, that the condition extended to the whole, as wejl to what accrued by survivorship 'as to the original devise. An exception must be also noticed to the riile^ in regard to the representatives of legatees waiting for payment of the legacies, until the times arrive when the legatees themselves, if living, would be entitled to receive the money. For where legacies are made pay- able at twenty-one, if interest be given during minority, and the legatees die under age, then, since interest is considered a recom- pence for the delay in payment of the principal, which is merely postponed on account of trip ages of -the legatees, their executors or administrators will not be obliged to wait, for the money, until the legatees would have attained twenty-one. In Cloberry v. Lampen,(h) A. bequeathed' to B. 500/. when B. attained the age of twenty-one or married, which ever first happen- ed, to be paid with interest. B. survived Jl. but died during in- fancy, and unmarried. And immediate payment of the legacy was .ordered to the personal representatives of B. because interest was given. This principle was assented to by Lord Thurlow in Green v. Pigot,(i) who thus states it; " If a legacy be payable at twenty- one, and the child die, his executor cannot claim till the time when the child would have arrived at twenty-one, if the legacy does not bear interest ; but if it be with interest he may claim immediately. If it bear a less interest than the utmost use, the executor has a right to the money, paying the modified interest" And in Crickett v. Dolby, (k) Lord Mvanley expressed himself to the fol- lowing effect : "Where a legacy is ordered to be paid at the age of twenty-one, and the legatee dies before the time, shall the executor wait till the legatee would have been twenty-one, or have it imme- diately ? This depends upon the question, whether interest be paya- ble or not? If interest be given, the executor shall have the legacy immediately, otherwise he must wait* It is admitted that if the lega- tee had died, her executor could not have the legacy until she (had she lived) would have attained twenty-one. There. never could have been such an absurdity as the notion, that you must wait till that time, and then have the subject with the interest." Supposing then with his Lordship, that a legacy to B. payable at the age of thirty, with a gift of interest in the meantime, will entitle B. to immediate payment of the principal, yet, if instead of interest (g) 2 Vem 620. ed. by Raithby. (A) 2 Freem. 24. (0 1 Bro. C. C. 105. stated infra. (k) 3 Ves. 13. 586 Of the Payment of Legacies. [Cn. XIV. a mere discretionary power be given to the executors to advance the money at an earlier period, it will not accelerate the time of pay- ment, unless the discretion be exercised, either by the executors or a court of equity. This will be more clearly understood from the fol- lowing case : . . In Lewis v. Lewis,(l) 3333Z. three per cent annuities were be- queathed to trustees, to apply the .dividends towards the mainte- nance and education of the plaintiff until he attained twenty-one, and to pay him from that time the whole of the dividends for life, with an authority to the trustees to apply 600 1. (part of the annui- ties) at any tune before the plaintiff attained twenty-six, for his ad- vancement in the world or other his occasions as they (the trustees) or the survivor of them should think proper. And the testator gave the 600Z. to the plaintiff at his age of twenty-six. The plaintiff having attained twenty-one, claimed immediate payment of the 6001. But Lord Thurlow determined against the demand, observing, that the case was not one of a gift by the testator, but a power to others to give, which seemed be confined to the answering of some particular purposes. That the proper question was, whether the present circumstances and situation of the plaintiff were such as to meet the view of the testator in giving the legacy 1 ? To ascertain which fact it was referred to a Master to inquire, whether the situa- tion of the plaintiff required any and what part of the money to be advanced before his*age of twenty-six. Yet a variety of cases may occur of legacies given to or in trust for individuals absolutely and beneficially, but with a direction for the application or enjoyment of the money in a particular manner; as for example, to purchase annuities for the legatees, or to place them out apprentices or to enable them to take holy orders ; in which the legatees will be entitled to receive the capitals immedi- ately upon the death of the testator, or at the expiration of a year next afterwards, regardless of the particular modes directed for the enjoyment or application of the property, as has. been shown in the seventh section of the tenth chapter. (m) When there is a substitution of legacies, or an addition to them, and no times are appointed for payment of the substituted or ad- ditional bequests, nor any funds assigned' out of which they are to be satisfied, it appears to be settled that those legacies are to be paid out of the same property at the same periods, and upon the same terms as the legacies, in lieu of or in addition to which they are given. In illustration, if A. bequeath to B. 1000Z. charged upon lands, and payable at twenty-one or marriage, and he afterwards by a codicil gives to B. the further sum of 200J. in addition to what he gave B. by his will ; or suppose him to revoke the first legacy, and to substitute a less in its place, without directing the time when, or the funds out of which the additional or substituted legacies are to be discharged ; those latter legacies will be payable at the same periods and out of the same property as the legacy of 1000Z. first given. In Leacroft v. Maynard,(n] the testator directed his legacies to (/) 1 Cox, 162. and see Robinson v. Cleator, 15 Ves. 526. (w) Vid. ante, from p. 425 to 431. (n) 1 Ves. jun. 279. 3 Bro. C. C. 233. S. C. SECT. II.3 Of the Payment of Legacies. 587 be paid out of his real estate. Some of them were given to charities which were ineffectual by the operation of the statute of Mortmain; but the testator, by a codicil, revoked those bequests, as also a lega- cy given to one of his trustees, which he bequeathed to another, whom he substituted in his place ; and he gave smaller legacies to the charities " instead" of those mentioned in the will. It was con- tended for the charities, that, the,-gift by codicil of the legacies being general, they were payable out of the personalty ; and that such was the testator's intention might be presumed from the supposition of his subsequent information -of the invalidity of the legacies he had given in his will, which was the reason of their being revoked, and for the gift pf smaller, by the codicil generally. But Lord Thurlow was of opinion, that the codicil -only meant to alter the quantum of the legacies in some cases, .and the objects of them in others; but not the fund out of which they were directed to be paid by the will; and .that therefore the charity-legacies were, void, as payable out of real estate. (o) So in Crowder v. Clowes,(p) a term of years was created by the testator for the payment of his debts arid legacies, and he gave to his niece 1000Z. payable at his death in the event of her being then married ; but if not, she was to receive the interest for life, or until her marriage ; but, if she died unmarried, the legacy was to lapse for the benefit of the person entitled to his real property. By a co- dicil the testator gave his niece 2001. in addition to what he had given to her by the will. And the Master of the Rolls determined, upon the authority of the last case, that the additional legacy should be. paid out of the same fund, and be liable lo the same conditions, as the original bequest of lOOOil. By the marriage settlement in Long v. Long,(q] the portions pro- vided for younger children were made payable at twenty-one or marriage, with immediate interest for maintenance at 2,1. per cent. The father by will increased the fortune of each child, directing the additional sums to be paid at the same times and ages as the portions by settlement, but said nothing as to interest* And it was determin- ed, that the same rate of interest was payable on the additional portions, as upon the original. Consistently with these authorities, Sir W. Grant decided the re- cent case of Cooper v. Day,(r] in which the testator gave to his widow 3001. payable within three months from his death, and free from legacy duty. He also gave 40001. to trustees, payable to them within the same period, free, from legacy duty, in trust for his two daughters, to be paid at twenty-one, with intermediate interest for their maintenance. By a codicil, the testator bequeathed to his wife, an additional sum of 200/. free from legacy duty. He also revoked the legacy of 40001. and in subsitution gave in trust for his daughters 50QOZ. " upon the trusts, and to and for the same intents and purpose, and under and subject to the same powers, provisoes, and limitations, as expressed in his will concerning the legacy of 4000Z." By a second codicil, the testator revoked the gift of 5000J. fo) See also Chatteris v. Young, 6 Mad 31. \ft) 2 Ves. juji. 449. and see Wordsworth v. Younger, 3 Ves. 73. (?) 3 Ves. 286. in a note. (r) 3 Mer. 154. infra. 588 Of the Payment of Legacies [Cn. XIV. and gave in its place 6000Z. to the same trustrees, upon the trusts, &c.; following the words in the first codicil. The only question was, whether the legacy of 6000Z. was to be paid free of the legacy duty 9 And Sir W. Grant declared, upon. the authority of the be- fore stated cases of Leacroft v. Maynard and Crowder v. Clowes, that the substituted legacy of 6000J. was to be taken as exempted from the legacy duty, in like manner with the original legacy, in the place of which it was given. (s) When the assets of testators are placed under the administration of a Court of Equity, it will not, in general, order any part of them to be applied in satisfaction of one or more legacies, until it ap- pears, from a Master's report, that the debts, &c. have been paid, and there is a sufficient residue to discharge the legacies. Yet this practice is not without exceptions. When justice and convenience require a departure from the general rule, they will prevail. Sup- pose then a case to arise, where the assets are admitted to be amply sufficient to satisfy all demands upon them, it seems that the Court, with the consent of all parties interested in the application, will di- rect the immediate payment of the whole or proportions of the lega- cies, as the urgency of the case and circumstances may require. In Pearce v. Baron,(t) application was made to the Court for pay- ment of part of a legacy, without prejudice to the question out of what fund.it was to be discharged. The bill was filed by trustees to have the accounts taken, &c. and the application was made upon the ground of there being a clear surplus, and .with the consent of all competent parties. A case of Coffin v. Cooper(v) was cited, and acknowledged by the Court to be in point. Lord Erskine, C. granted the application, observing, that such an order can never be made, except where there is a clear obvious surplus, admitted by others who are interested to object; when it is a. measuring cast, that will not do. The principle, upon which the Court acts is, that the per- sons so interested to object, will not assent, if it involved. them in all the responsibility, Vhich would arise where creditors are out- standing, and the fund is scanty. B. Bequests of annuities. With respect to the period, when the first payment of an annuity is to be made, when the time is not appointed by the testator, the following distinction is presumed to exist. If the bequest be merely in the form of an annuity, as a gift to B. " of an annuity of 100/. for life," the first payment will be due at the end of the year after the testator's death. But if the disposition be of a sum of money, and the interest of it is given as an annuity to B. for life, the first payment will not accrue before the expiration of the second year after the death of the testator. In the former instance, the testator is supposed to mean that the annuity should commence from his de- cease. In the latter, the annuity being given in the form of interest, upon a gross sum of money, to Jt>e taken out of the assets as any other legacy (and which we have seen, does not begin to carry in- terest until the end of the year after his decease,) cannot be payable sooner than the fund produces the means for that purpose. This dis- () Chatterisv, Young, 6 Mad. 30. (/) 12 Ves. 459. (T>) In chancery 26 March 1806, 12 Ves. 460. SECT. II.] Of the Payment of Legacies. 589 tinctiori was stated by Lord Eldon in the case below referred to, and seems to be founded upon principle ; yet it does not appear to have been sanctioned by express decision. (w) But questions of this kind can only arise, where testators omit to settle the period when- the first payments of annuities are to be made. If then,- a testator direct payment of an annuity (however given,) to be made at the expiration of the first quarter, or half year, after his death/it will be" due at that time, although not in fact pay- able by the executor until the end of the year.(x) C. It may here be proper to add a few observations on the sub- ject of apportionment. When an annuity, or the dividends of stock, are given to one for life, with remainder over ; as between the tenant for life and persons in remainder, apportionment is not in general allowed. Thus, an annuity or the dividends of stock, being in the nature of an annuity, was given to one for life, payable half yearly ; the first payment to be "made on the second quarter-day which should hap- pen after the death of the testator ; .the testator died on the 19th of November 1756 ; and the daughter on the 19th of January 1803 : her representative claimed the dividends due on the 5th of January 1803 : and it Was. held by Sir William Grant, that the daughter was only entitled up to Michaelmas, being the day of the last half yearly payment previous to her death. (y) The rule is otherwise, where the annuity is given by a parent to a child, in the nature of maintenance. Thus ; a mother directed her daughter Martha to pay to the tes- tatrix's daughter Mary, 301. yearly, while she continued sole, by 151 each May day and Ml Saints day. Mary married before a half year's payment became due ; but Lord Hardwicke directed the an- nuity to be apportioned, and paid up to the day of the marriage. (z) His Lordship considered the principal case as falling withm the reason of Hay V. Palmer.(a] We shall next consider, 5, To whom legacies are to be paid. It has been observed, that when the fund-is in Court, and the lega- tee entitled to receive it, the Court of Chancery will order payment to a person, lawfully authorized by hirn.(&) A. But when the legatee is an infant, and ,he would be entitled to receive his legacy, if he were of age, payment to him, or to his father on his account, cannot be supported. The child, upon at- taining twenty-one, may recover it from the executor. This how- ever was not always so ;' for it appears from the case ofHoll&wayv. Collins,(c) that in early times payment to the father of his infant child's legacy was good ; but since the case of Dagley v. Tolferry, reported in the book referred to in the last note, and after stated, it has become the settled rule of -Courts of Equity, that such a pay- ment is illegal. If, indeed, the child were of age, payment to the (u} See Lord Eldoh's observations in Gibson v. Bott, 7 Ves. 96. and ibid. 97. stated infra, Chap: XX. s. 12. (:r) 6*orer v. Prestage, 3 Mad. 167-8. Houghton v. Franklin, 1 Sim. & btu. 90. (y) Franks v. JVoble, 12 Ves. 484 (z) Reynish. v. Martin, 3 Atk. 3JO. (a) 2 P. Will. 501. 2 Eq. Ca. Abr. 83. pi. 3. 646. pi. 22. S. C. (6) Ante, p. 580. (c) 1 Eq. Ca. Abr. 300. VOL. i. 4 F 390. 590 Of the Payment of Legacies. [Cn. XIV. father would not be good, unless made with the child's consent, or it were afterwards confirmed by him. It may therefore be laid down as a general rule, that where a lega- cy is given to an infant, generally, an executor cannot, with safety, pay it to the child, or to another person, for his benefit. This rule was carried to a great length in the following case : In Dagley v. Tolferry,(d) A. having a sister, who had four infant children, bequeathed 1001. a piece to those children, mentioning no time of payment ; and: he appointed, the defendant executor. It was in proof that the testator, on his death^bed, directed his ex- ecutor to pay the legacies to the father of the infants, to improve the money for their benefit.. In consequence of that direction, pay- ment was made to the father ; when the youngest child came of age, accounts were 'settled between him .and his father, on which the latter was indebted to his son- in 200Z. including the legacy of 100Z. and for which balance the son accepted his father as his debtor; a circumstance urged by the executor, as a confirmation of his payment of the legacy to the father. The -son acquiesced in the payment for fifteen years; and upon his bankruptcy, his as- signees claimed the legacy from the executor, and obtained a decree at the Rolls from Sir Jokyi Trevor for- payment of it, on the ground that payment of the legacy to the father and guardian was illegal. And Lord Cowper, C. (to whom the executor appealed) was of the same opinion, and confirmed the decree; saying, '" that if it were, reversed, it might encourage payrnents to parents and guaTdians hi wrong of infant children ;" but the case being considered a hard one, the deposit was ordered to be divided. '. That parol evidence of the testator's direction to his executor to pay the legacies to the father was admitted by the Court, is singu- lar, as the effect of it was to contradict the will that expressly gave the legacies to the children, which necessarily imports payment to them. The propriety of its admission was reasonably questioned by Lord Alvaiiley, in Cooper v. Thornton^ He consulted the Registrar's boo'k, and observed, it appeared from the book that the evidence was read, but doubted whether it ought to have been re- ceived. " It would be dangerous (said his Lordship) to admit evi- dence, that a legacy, given to owe person, was ordered, to be paid to another.(e} There is another sigularity attending the last case, viz. that acquiescence by the. child for fifteen years after payment of the legacy to his father, should not.be permitted to constitute a confirmation of it. But the principle arises out of the relation between parent and child, i. e. filial duty to a father. Lord Mvanley, in the case last referred to, expressed himself on this subject to the following effect : " Although the money was directed to be, and was, paid to the father, and the son acquiesced a great length of time, still it was competent to him or his representatives to demand it ; because a contrary determination would encourage such payments, and a son must acquiesce, or pursue his father; or, which is the same thing, by commencing a suit against the executor, occasion him to (rf) 1 P. Will. 285. 1 Eq. Ca. Abr. 300. 5. C. Reg. lib. anno 1714. fo. 414. anno 1715. fo. 40. ( e ) 3 Bra C. C. 97. edit, by Belt, infra. SECT. II.] Of the Payment of Legacies, 591 pursue the father. I take that to- have been the ground, on which Sir John Tr#vor and Lord Cowper went in Dagley v. Toljerry ; and that if the Legatee had not stood in such relation to the person to whom the legacy was paid, the bill would have been dismissed." The next -case being 'compromised, merely affords Lord Hard- .wicke's sentiments in regard to the rule. And although his Lord- ship's opinion inclined .in favour of the validity of the payments made to the infant legatees, yet, upon reflection, he declined to pronounce* a decree in conformity with that opinion, in opposition to Lord Cowper' s judgment in Dagley v. Tolferry. Besides, in the case before Lord Hdrdivicke, the executor was misled by the testa- tor's own directions in .his will to' pay the legacies within a certain time, a circumstance observed by Lord Alvanley to be entitled, to consideration in the judgment//) The case alluded to in Philips v. Paget, of which we have not any account except in the report. of: Mr.' *@tkyns..(g] There the testatrix gave to each ^of .the three children of Mr. Philips 100Z. and appointed the defendant executor, leaving him the bulk of her estate, provided he paid the three legacies within, a year 'after her death, pursuant to her will. In performance of the condition the defendant paid the legacies into the Hands of the infants, within the time, the eldest of them being then sixteen, the second fourteen, and the youngest nine years old, upon, a bill filed by the children .against the executor for payment of their ! legacies, -Lord Hardwicke asked the executor's counsel if they knevy any instance of payment of so large a sum of money into the hands of minors, ever having been allowed by the Court. He then added, " but in this case, as the payment by the executor to the children themselves is so fully proved, and their losing the benefit of it is owing to the negligence and insolvency of the father, I will not strain the rules of the Court to make an executor pay it over again, especially as he made the payment to save a forfeiture, -it being an express condition of his taking under the will, that he shduld discharge the legacies within a year after tine testatrix's death." Notwithstanding the specialty, his Lordship on the following clay observed, that upon looking into the cases he found the present a very doubtful point, and unless the defendant would agree to give the plaintiff something, he would not determine it without taking time for consideration ; -a recom- mendation which produced a compromise, and was not a little signi- ficant to the executor of what would have been the ultimate decision of the Court. Such being the rule of law in regard to the in validity 'of payments made to or for infants, of legacies given directly to them; executors who were desirous of being discharged from their office, after having performed all their other duties, were under the necessity of pro- curing bills to be filed against thern by the legatees to enable them to dispose of those particular legacies under the direction and in- demnity of a court of equity. -But. opportunity of avoiding this inconvenience and expense appears to have been provided by stat. 36 Geo. 3. c. 52. s. 31, by which it is declared, that an executor may pay the legacy of an infant into the Court of Chancery, after (/) 3 Bro. C. C. 98. (g) 2 Atk. 80. 592 Of the Payment of Legacies. [Cn. XIV. deducting the duty, without suit, and when the legatee attains the age of twenty-one he may petition for it. It seems therefore that in instances where this summary mode can be adopted, if a legatee unnecessarily commence a suit to have his legacy secured, the.-costo, as heretofore, will not be allowed out of the testator's general assets, to the prejudice of the residuary legatee. In Whopham v. Wingfield,(h] a legacy.was given to an infant who, with her husband, when she was within a few months of twenty- one, instituted a suit to have the money secured. Assets were admitted, and the usual decree made that the legacy should be paid into Court, with costs out of the general estate. The residuary lega- tee complained of the hardship to fix the costs upon him, -when if the plaintiffs had waited for a few months, they might have received the legacy without a bill. And Lord Alvanley said, that in such a case he would not in future give the- costs, for since the late. Legacy Act, the executor had nothing to do but to pay the money into Court, and then he had done, and the. infant when of age might petition for it. It is a consequence from the rule we have been considering', that testators ought not only to bequeath to trustees legacies intended for minors, to whom themoney may be safely paid, but to grant fixed allowances for their support and education during infancy, and to give authority to the trustees to apply certain proportions of the capitals for the preferment of the minors in the world, when such objects are intended to be provided for. Because since, as we have seen, an executor cannot, without personal risk, pay the whole or any part of a legacy directly bequeathed to an infant, either to the child or to any person for his use ; neither can he with safety apply any part of 'the interest or principal for the minor's maintenance or preferment without the direction of a court of equity, unless he be expressly authorized to do so, and the proportions are ascertained by the testator. Indeed, if maintenance be directed generally with- out saying how much the uncertainty of amount will render an ap- plication to a court of equity necessary. But as executors or trus- tees are sometimes desirous of undertaking personal responsibility to save expense to the estate, it may be useful to observe that they can only be justified in applying to maintenance part of the interest of the fund, and by no means any portion of the principal without the authority of the testator. For the Court has never permitted executors or trustees to break in upon capital of their own accord. It has never, as is presumed, sanctioned such conduct in them. Rarely has the Court applied part of capital for maintenance, though frequently for the advancement of the child. But whatever the Court might do under particular circumstances, it will not in this instance sanction an executor or trustee in doing the same. The principle is this : "It is better that an individual should suffer a hardship than that the general rule should be infringed in a point which would endanger the interests of all children. "(i) Thus far as to capital. But when the question arises upon application by an executor or trustee of part of the interest, for the support of an infant-legatee, without the authority of the testator, it would seem that, if he did (A) 4 Ves. 630, (i) 6 Ves. 474. SECT. II.] Of the Payment of Legacies. 593 no more than what the Court would have directed if it had been re- sorted to in the first instance, his act would be supported. Lord Alvanley expressed himself on this subject to the following effect: "The principle has been established since Andrews v. Partington,(k) that if an executor do without application what the Court would have approved, he shall not be called to account, and forced to undo that merely because it was done without application." After these preliminary remarks, we shall proceed to consider the cases. In Davies v. Austen, (I) a legacy of 50CZ. was directed to be paid to W.. Green at the age of twenty-one, with legal interest in the mean time. The legatee had no other immediate provision but the above sum, and the following expenditure was made for him during his minority ; while his father was living, ( interest was paid to him for the maintenance of his son, the father not being of ability to discharge that obligation. After his death, the payment was continued to the mother of the legatee until her second marriage, and from that time to Mr. Jones, her second husband. Those payments were not dis- puted. But Mr. Jones, after placing the legatee in the service of an English sea-captain, with* the consent of one of the executors', paid the captain IDOL for the discharge of the legatee. After this Mr. Jones, with the like consent, placed his son-in-Jaw at a military aca- demy, the expenses of which amounted to another 100Z. And in conclusion Mr. Jones flitted him out and sent him to India in the ser- vice of the East India Company ; the expenses attending which were 200J. The total amount of payments for the maintenance and ad- vancement of the legatee amounted to 650Z. Soon after the legatee arrived in India, he attained the age of twenty-one, and sold and assigned his legacy to the plaintiff, who sought to recover it from the executors, who contended that the whole legacy, principal and interest, had been properly applied for the maintenance and ad- vancement of the legatee ; but the purchaser insisted that no pay- ments should be allowed, except of so much interest as had been applied for the support or provision of the legatee. And Lord Thurlow said, he. was not satisfied that the advancements which had been made were for necessaries. In particular he thought the 1001. to the English captain was too much'. He therefore ordered the whole legacy to be paid, with interest from the time when the lega- tee attained twenty-one. The last is a clear authority against the power of trustees or ex- ecutors to apply the capital of -legacies, given to infants for their maintenance or advancement ; there they were neither allowed the expenses of the legatee's outfit to India, nor of his previous educa- tion at home, so far as the payments exceeded the interest of the le- gacy, for the whole capital was ordered to be paid to the purchaser. The case that followed was Lee v. Brown,(m) determined by Lord Alvanky, in which the testatrix gave to her brothers and executors, William and Edward Brmvn, 100/. in trust to apply the interest for the maintenance and education of her great nephew John Lee during his minority, and to transfer to him the capital at twenty-one, with a limitation over upon his death under that age. The executors applied more than the interest of the legacy in maintaining and edu- (Jt) 3 Bro. C. C. 60. (0 Ibid. 178. (m) 4 Ves. 362. etvidefiost. 594 Of tht Payment of Legacies. [Cn. XIV. eating John Lee. They also paid a fee of one hundred guineas on placing him as an apprentice with a druggist. WilliamBrown, the executor, left him a legacy of 200[. to be paid at the age of twenty- two, appointing his co-executor Edward Broitin his own executor. John Lee duly authorized a Mr. Orchard to receive the 200Z. for him, and all other njojiies and effects due fo him. Orchard applied to Edward Brown for the last legacy /in the year 1787, which he re- ceived and gave a discharge.. Not any demand was .made, nor notice taken of the preceding legacy of-lOOl nor any claim made for it till 1797, when Lee commenced the surt. In defence to which Edivard Brown insisted, that by the advancements for the benefit of the le- gatee during minority, the -lOOl, was fully and properly paid. But Lord Mvanley was of the-contrary opinion,, upon the principle, that the executors had no. pOwer to apply more for the maintenance of the legatee, than (he interest of his legacy. That they were not at liberty under the trust reposed in them 'to advance any part of the capital, although it would have been ever so much for his advantage. His Honour was also of opinion, that there was no confirmation by Lee of the advancements, nor satisfaction "of the bequest by the sub- sequent legacy of 200Z. and notwithstanding an acquiescence of ten years, he ordered payment of the 100Z. with interest from the filing of the bill -at Al. per cent., but without costs. Upon the principle of the preceding authorities, Sir W. Grant de- termined the case of Walker v. Wtherett.(n] It appeared that in- fant children were entitled to portions of 300Z. each under the will of their 'father, and that their mother married one of the executors, who claimed, arid was allowed by the Master slims of money ex- pended in the maintenance, education, and preferment of the chil- dren, which far exceeded the interest of their respective fortunes. Whether such payments ought to be allowed .was the simple ques- tion, there being no particular circumstances in the case. And Sir W. Grant wasr of opinion, that the application of capital could not be allowed upon principles of general convenience. The cases which have been mentioned were considered as bear- ing grievously upon executors, but a particular hardship was endur- ed for the sake of the general good. If, however, a court of equity can discover 'a clear act of the legatee, when of age, confirmatory of the application of his legacy by the executors for his benefit during minority, it will hold him to be estopped from claiming a repayment. Hence, if a legatee, after attaining twenty-one, with a knowledge of his rights, and upon full consideration of all that had -been done for him during infancy, admit,' by any act, that the advancements made for him while a minor had been for his advantage, and that he ap- proved of them, and was willing that they should be established, he will not afterwards be permitted to dispute their propriety. But the intention to confirm the transactions must not be equivocal, as a person is not allowed -to surrender a right except, his intent to do so be manifest. We have accordingly seen in Lee v. Brown,(o) that neither the receipt of the subsequent legacy under the circumstan- ces before stated, nor an acquiescence for ten years, were considered sufficient to preclude the legatee from disputing the proper applica- "(TZ) 6 Ves. 473. (o) Ante, p. 593. SECT. II.] OJ the Payment of Legacies. , 595 tion of the legacy given him by the will of his great aunt. And in Dagley v, Tolferry,(p] when it appeared that the father had been paid his child's legacy, an acquiescence by the child for fifteen years did not extinguish his right to call upon the executors for repayment. . WJien the direction to the' executor is not to pay the legacy to the child, but the bequest is made to a trustee for him, the executor will be justified in delivering the morley to the person so appointed. Hence, if the testator order the sum to be paid to the father, he will be a trustee for his child, and entitled to receive the money, and his receipt wilj be a good discharge -to the executors.. Thus in Cooper v. Thornton,(q) the ^bequest was of 100Z. "to Thomas Cooper, to be equally divided between himself and his family." The legacy was paid to Thomas by one of the executors, and the 'only question was, whether the payment was good against the clairns of the infant children 1 ] and Lord JLlvanley decreed in the affirmative, on the principle, that the bequest was to the father, in trust, to be divided by him between himself and family. And his Lordship put these cases, " if a man give a legacy to the senior Six Clerk, to be divided- among himself and the other six. clerks, I think it should be paid to the -senior, and the executors not to be put to inquire who were the. other six clerks. And that, if this had been a bequest of goods to A. to be divided between himself ^nd family, A. with the assent of the executor, might bring trover for the goods." So in Robinson v. Tickell,(r] the" testatrix bequeathed to her niece Mrs. Robinson 2000L reduced annuities" in these words, " to M. Robinson for her and her children's use." The suit was instituted by Mrs. Robinson and her husband, fora transfer of the fund, which Sir W. Grant, M. R. ordered^ referring to the last case. We proceed to consider in the next place, B. To Whom are to be paid legacies given to married woman. When bequests are made to the separate use of married women, they alone can give a good discharge for them. Their husbands have no interest in the funds, therefore their concurrence is un- necessary. But when the .gifts are to married women generally, the money ought to be paid tch their husbands-; fdr the law will not al- low a married Woman either to receive or pay -money, without the concurrence of her husband ; so that unless she act as his agent with due authority, (s) and the legacy is paid to her in that character, pay- ment of it to her alone is void against him, and he may recover it against the executors :(t] notwithstanding she is -divorced a mensd et thoro.(u) But if the husband have not made any provision for his wife, the executors may decline to pay the legacy, until- he consent to make a suitable provision for her, as the Court of Chancery, upon the bill of the .husband for the money would refuse to order payment to him, unless he consented to a reasonable settlement out of it upon the ( fi} Ante, p. 590. (cf) 3 Bro. C. C. 96, affirmed on appeal by Lord Thurlow, ibid. 186. (r) 8Ves. 142. - (*)'Palm. 206. 2 Freem. 178. (0 Palmer v. Trevor, 2 Vein. 261. (w) Stephens, v. Totty, Cro. Eliz, 908. 1 Roll. Abr. 343. 2 Ib. 301. Bac. Abr title Legacies (K. ) 596 Of the Payment of Legacies. [On. XIV. legatee. The Court is in the constant habit of acting in this man- ner; therefore one authority upon the subject shall suffice. In Brown v. Elton,(x) the plaintiff married a young lady who was entitled to a legacy payable on her marriage. The plaintiff de- manded the money, which the. executor refused to pay, unless the husband would make some settlement or provision upon his wife. The plaintiff refused to do so, and commenced the suit to recover the legacy. The Master of the Rolls decreed, that the. plaintiff should lay proposals before a Master for a settlement, and pay .the costs of the suit : from this decree he appealed to Lord King, C., who confirmed the decree, except as to 'costs, which he thought ought not to be paid by a man, merely because he insisted upon a right which the law gave him.. His Lordship's sentiments upon Courts of Equity abridging that right, were expressed to the following effect : " I found it. to be the practice at my coming into this Court, to enforce the husband, be- fore he recovers his wife's portion by the aid of equity, to make a settlement; and as such practice has so long obtained, I shall not at this time take upon me to alter it, although it seems-to break in upon the legal title, which the husband has to his wife's personal estate. This method, however, intended originally as a cautionary provision in favour of the wife, has sometimes proved inconvenient ; yet cus- tom and long usage have sufficiently established it." But when the wife has eloped from her husband, and cohabits with another man, the executor may refuse payment of her legacy to her husband, without the direction of a Court of Equity. First, be- cause, in such a case the Court will not make any provision for such a woman, while she continues in that state of life ; for the effect of the provision would be to enable her to continue the same criminal intercourse. And secondly, it will riot order afiy part of the money to be paid to h.er husband, as he neither supports her, nor can claim any portion of the fund until he make provision for her, which the Court will not direct in this instance. It seems, that all it could do would be, to order the legacy to be paid into Court. (y) Yet where not anycriminality attaches to the wife, but, while she is living apart from her husband under a deed of separation, a le- gacy is given to her, as the Court will interpose in her behalf for a provision, and the husband is entitled to the money upon making it,(2r) the executor may insist upon a settlement on the wife, as a condition preceding his paying the legacy to the husband. It seems, thajt if the feme-legatee be the subject of a foreign state, by the law of which her husband would be entitled to receive the whole of her property, without making any provision for her, the Court will order the fund to be paid to her husband, without requiring him to make any settlement,(a) The Court, in making a provision for the wife, always includes the children of the marriage. But whether the husband shall make (x) 3 P. Will. 202. (y) See Sail v. Montgomery, 4 Bro. C. C. 339. 2 Ves. jun. 191. S. C. Carrv. Eastabrooke, 4 Ves. 146. Law of Husband and Wife, 1 vol. c. 7. where the sub- ject is more particularly considered. f z) March v. Head, 3 Atk. 720. and Law of Husband and Wife, 2, vol. ch. 22, (a) Vid. Campbell v. French, 3 Ves. 323. 1 Anstr. 63. SECT.!!.] Of the Pay men t of Legacies . 597 any such provision, before he receives the legacy, solely depends upon the wife. For if she, at any time before the businesses com- pleted, appear in Court, and consent that her husband shall have the whole of the legacy, it will be so altered that, although the chil- dren be thereby disappointed, (6) yet, if after an order made for the husband to lay proposals before a Master for a settlement, the wife die without waiving it, her children, will be entitled to prosecute the order, and obtain a pro vision, (c) The equity of the wife to oblige her husband to make a suitable provision for herself and children, in. consideration of her fortune, in instances where he cannot obtain the whole or part of it without the assistance of a Court .of Equity, is obligatory upon all persons claim- ing generally from or under him, as executors-, assignees in bank- ruptcy j or insolvency, or assignees by deed in trust to pay debts. So that, if the husband become a b.ankrupt or take advantage of the insolvent acts, or' assign his property to trustees -for the benefit of his creditors, including the interest of his wife, they will be obliged to make provision for her and children; before they be permitted to receive it, whe'ther the legacy be absolute or for life only.(d) Whether a particular assignee by purchase from the husband, of the. wife's legacy be liable to her equity, for a settlement, has been a question of considerable doubt, and. great. men have entertained con- trary opinions on the subject. It seeriis however to be the better opinion that such an assignee will not be allowed to take the wife's equitable property, withoui making a provision for her, as a contrary adjudication .would enable the husband to defeat' at all times the care and caution- of the ourt, by his taking up money of a .third person and assigning the legacy- in payment. (e) . .. It has been 'genefally understood that this rule of the Court ex- tended to cases, as well wjiere the wife was only, entitled to a life estate in the fund, as where the bequest to her was absolute. But there is a recent determination marking a distinction between the two instances. It was decided that if the dividends of stock be be- queathed to a married woman for life, her husband may sell it, and the purchaser is under no obligation to make a provision out of it for the wife and children. The case alluded to is Elliott v. Cordell,(f) in which the testator bequeathed to his niece Mrs. ElKott the dividends of certain impe- rial annuities for life. . She had infant children unprovided for, and the dividends of the imperial annuities were sold by her husband to the defendant, and were assigned by her and her^ husband to a trustee for the defendant. 'The question was, whether Mrs Elliott was entitled to a provision by the purchaser out of the dividends'? And Sir John Leach, V. C. determined in the negative. As the last may be considered an important decision, it becomes necessary to ascertain with precision the weight of the principal (6) See Law o Husband and Wife, ch. 7. for further particulars. (c) Ibid, where the wife's consent will and will not be effectual, see Law of Hus- band and Wife, 1 vol. ch. 6. p. 243. to 255. and vol. 2 ch. 20. ip. 210, &c. (d) 5 Madd. 156. and see Husband and Wife, 1 vol. ch. 7. p. 266. Pryorv. Hill, 4Bro..C. C.- 139. and 'Burdonv. Dean, 2 Ves. jun. 607. (e) Husband and Wife, ch, 7. p. 266, Sec. and Salisbury v. Netvton, 1 Eden. 370. (/) 5 Madd. 149. roi,. i. 4 G 598 Of the, Payment of Legacies. [Cn. XIV. reason -assigned in support of the judgment, in order 'to discover the necessity for distinguishing between an interest for life, and a gross sum of money bequeathed to a married woman, in regard to her title to a provision against the vendee of the husband : for it was admitted that, as against the husband his assignees in bankruptcy, or under the. insolvent debtors act; the wife is entitled to a settle- ment. The Vice Chancellor said, that, where the equitable interest given to the wife was absolute, all persons claiming under the husband took his interest, subject to. the same equity with whrch it was affected in his possession ; but where that interest was for life only, the husband was entitled to enjoy it without making any provision for his wife. But it is presumed that the latter propositiori must be received with limitation. 'For if the husband can procure payment of the annual produce of the fund,, he has the same right to enjoy it without recal, as if it had been a gross: sum absolutely given to his wife, the receipt of \vhich he had. .procured [without suit. But if he be obliged to resort to a Court of Equity for payment of either, then it is considered that the Court will not. assist him, previously to sub- mission, to make la settlement on his wife. That this would be the case, if the interest of the wife was only for life is not- destitute oC authority/ as was supposed by his Honour, so that his apprehen- sions that in determining in favour of the'wtfe, he should not be administering the law of the Court, but be" making a. new law, (a jurisdiction he disclaimed), do not seem to have been Well founded. We have the authority of Lord JKosslyn for the proposition, that, whether the interest of the wife be only for life, or be absolute, in the property, the husband cannot enforce in equity the payment of it, without first consenting to make a settlement; -and if such be the rule as considered by his Lordshipj then upon the principle admitted by his Honour in the present case, the husband's particular as-, signee must take the assignment of the chose in action, subject to the same equity. In Ball v. Montgorhery,(g) 50QOZ., three per cent annuities (the wife's property) were settled upon -her marriage, but no provision was made by the settlement for the payment of the dividends during the overture ; which, on the ground of mistake, the husband sought to rectify by the aid of a Court of Equity, and he prayed that the dividends might be declared, to belong to him during the marriage in opposition to his wife, who had eloped from him and was living in adultery, she claiming such dividends to her separate -use under an alleged prior agreement, Lord Rosslyn refused to correct the settlement, as, without an *xpr~es$ provision, the dividends were payable to the husband during the coverture. The question then was, whether, as the husband, who would in an ordinary case be entitled to the dividends, was so in the present instanced and if en- titled,, whether he ought to make a provision for his wife ; and it was admitted by counsel on both sides, that where there was not any contract for the husband to receive the dividends of property be- longing to the wife during the coverture, the husband, if he were obliged to resort to equity to compel their payment, must submit to () 4 Bra C. C. 339. 2 Ves. jun, 196. S. C. SECT. II.] Of the Payment of Legacies. 599 make a provision fo* his wife,(A) but the counsel for the husband con- tended that there was such a contract in this instance, which was de- nied by. the Court. And Lord Rosslyn said, " I can make no distinc- tion between this case and that of a sum of money so given, that the husband could not obtain it, but by coming to this Court, which is the case, wherever a woman is entitled without an appropnation.(i) The delinquency of the woman is in this-case a" reason for not giving it to her, and I cannot give the whole to the husband, on account of her interest. I must secure a part for her,- or reduce her to beg- gary. This will lead to 'an agreement to make a provision for her. Probably, had 'the last case been cited in argument, or occurred to the Vice Chancellor, his decision would HaVe been otherwise than what it was. Therefore the case of Elliott v. Cordell wants con- firmation. An executor or trustee may pay the wife's legacy to her husband, which will Defeat her right to a settlement ; but if there be a suit pending, the executor or trustee cannot make the payment, because his office is suspended, and the Court of Chancery has become the trustee. (k] (Z) 'The. recent case of Adams v. Lavender, (m) determined that the wife* was entitled by survivorship, td a legacy which devolved upon her during the coverture; and- for, recovering which a suit had been instituted by her husband in their joint names, and a decree had been obtained during his life, for an account merely, and not for the actual payment of the money* due. Alexander-, C. B. observed, that no case he could find went the length of showing, that if the hus- band and wife sued in their joint names, a decree for payment would have the* effect of barring her: under such circumstances, a Court of Equity would follow the rule, at law! But in this instance,-the decree had not gone so far, but only to the extent of an- account be fore .the Deputy Remembrancer. C. With respect to the payment of a legacy to a lunatic. . A lunatic is legally incapable of contracting, yet as he may have lucid intervals, acts done by him during such interval of sanity are binding ;(n) but otherwise his acts (except by matter of record,)(o) are void at law, and after office found may be avoided by the King, by virtue of the statute de prerogativd regis.(p) The King is, ab- solutely entitled to the profits of an idiot's estate, subject to the maintenance, of the idiot. ;(?) but with respect, to lunatics, he is merely a trustee, and, by special warrant/usually entrusts the Chan- cellor, as Keeper of the Great Seal, with the care of lunatics. 'Chancellor, after office found, appoints a committee of the person and estate of the lunatic .; and, thus appointed by and under the control of the Chancellor, the committee is invested with all powers necessary to the discharge of his office, as bailiff and receiver of the (A) 2 Yes. jun. 1%. 197. (z) Or as in Vesey, " and it is not specifically given to the husband. ( Murray v. Elibank, 10 Ves. 90. Macaulay v. Philifis, 4 Ves. 18. Doswell v. Earle, 12 Ves. 473. , , . m As the rights of the wife and children to a settlement are fully detailed in 1 vol. of Roper's Husband and Wife, c. 7. it is thought unnecessary to enter further into the subject in this place. (wi) M'Clel. & Young. R. Exch. 41. (n) 9 Ves, 610. (o) Severlay't case, 4 Coke, 127. (/O 17 Edw. 2. c. 10, (?) Ibid. c. 9,- 2 Scho. ?c Leaf. 153. In re Fitzgerald; 435. 600 Of the Payment of Legacies. [Cn. XIV. estate of the lunatic. It is therefore his duty to watch over the in- terests of the lunatic, and to enforce his rights. But though void at law, the acts of a lunatic may, under circum- stances, be supported in equity. It does not appear that the validity of such acts depends upon the question, whether they were or were not done before office found, but whether the person contracting or dealing with* the lunatic erttered into such contract or dealing bond fide, and without notice of his irnbecility. If, therefore, a legacy be paid by an executor' bohn fide and without notice to a lunatic, who should afterwards be found by an inquest fo have been non, compos with lucid intervals previously to the time of payment, .it -should seem clearly that such payrn^nt Would be supported, if the executor could establish a lucid interval at the time of payment.(r) But even if the finding, in the case supposed, had bten thai the lunatic was non compos without lucid intervals before or at the time of payment, it should appear, that if the executor could prove the payment made bonu fide, and without notice, the Court would not interfere to set aside the payment, but leave the party seeking the aid of the Court to his remedy (if any) at law.($) If however a commission have issued, and. a committee .be ap-- pointed, he is the proper person to receive -and give a discharge for a legacy due 'to the lunatic"; and'it may perhaps be stated as a gene- ral rule, that in such case payment of the legacy to the lunatic is void, and it may be. recovered by the committee from the executor. If, in the case last supposed, thje inquest, "upon which the commis- sion was founded hao* found the lunatic with lucid intervals, any subsequent payment to the lunatic during a lucid interval, could it be established, would be "very hazardous ; since, until the commis- sion is superseded, it is presumed the committee is the only proper- person to receive the legacy; and the risk would be in proportion to the difficulty of proving the want of notice of the lunacy. It -is difficult, if not impossible, to lay down general rules that shall be applicable to every case, since each must depend in a great measure upon its own peculiar circumstances. If a legacy be given for the benefit of the legatee, in one way, and on account of his subsequently becoming lunatic it cannot be so applied it may, it would appear, be applied for his benefit in another mode.() D. With respect to a legacy given to a bankrupt. . Where a legacy is given to a bankrupt, before the certificate is 'allowed and confirmed by the Chancellor, the legacy must be paid to the assignees. In Tudway v. Bourn,(u] a testatrix bequeathed a legacy of 2001. to one Coward a bankrupt, whose certificate had, at the time of the testatrix's death, been signed by t'he majority of his creditors in- num- ber and value, and also by the ' commissioners ; after the bank- rupt's death and before the allowance of the certificate, the commis- sioners assigned the legacy to an assignee for the creditors. 'Upon a question referred to the Court of King's Bench, whether the legacy . l (r) Hall.v. Warren, 9 Ves. 605. . (*) Niell v. Morley, 9 Ves. 478. (0 Per Sir W. Grant, 5 Ves. 463. See Eartow v. Grant, 1 Vern. 255. (M) 2 Burr. 717. SECT. II.] Of the Payment of Legacies. 601 belonged to the bankrupt's executor or to his creditors, the Judges certified, that the legacy vested in the assignee for the benefit of the bankrupt's creditors. E. When- the legacy is given to a legatee who has been abroad and not heard of for a long time. In such case he has been presumed to be dead, and the legacy paid to .those who would be entitled 'in that event ; they giving secu- rity to refund, in case the legatee should return. In Norris v. Norris^x) a legacy was given to one of two brothers who went beyond sea, and after five years absence, the other, sug^ gesting he was de,adv. took out administration, and sued for the lega- cy, which was decreed, he giving security to refund if the legatee should return. ' In Dixonv. Dixon,(y) a. legatee having been abroad twenty-eight years, and not having been heard of for twenty-seven years, Lord Jllvanley, M. R. said he would presume him to be dead. . Again, in Mainwaring v. Baxter,(z) a party was presumed to be deaf after an absence of sixteen years without any tidings of her. In Bailey v. Hammond,(a) the same presumption was made after an absen'ce of twenty years ; but security was taken 'there to refund . in case of a claim. But where the fact of death is doubtful, and the parties wish it, the Court will direct an issue;(&). . The statute 36 Geo. 3. c. 52, sect. 32, authorizes the executor or administrator to pay legacies given to persons abroad into the Bank, with the privity of the Accountant General, as- in cases of legacies given to infants. 6. As to deductions and retainer, , A.--And, first, with respect toUhose legacies which are subject to deduction for duties under the Stamp Acts, and the quantum of duty payable. (c) Legacies of every description, including donations mortis causa-, of .or above the value of 20J. each, and payable out of personal estate, or out of or charged, upon real estate, or out of the monies to arise by sale or mortgage or other Disposition thereof; also clear residues or shares of clear residues of personal estate, or of monies to arise from the sale, mortgage, or other disposition there- of, and whether 'given by. way of arinuity or otherwise,(d) are charg- ed with certain 'duties imposed by several Acts of Parliament refer- red to in note. (e) These duties are. to be ultimately paid by the respective legatees, unless expressly exempted therefrom by the will of the testator,(/} in which case they are payable by the exe- cutors or administrators out of the effects of the deceased.(g) Legacies charged upon or payable ont of the produce of real es- tate were not subject to the payment of duty, until the 45 Geo. 3. c. f-rl Finch R' 419; ' (y) 3 Bro.C. C. 510. (^ 5 Ves. 458. Sib 7 590 (V Mason v. Mason, 1 Men 308. lei The limits of this work will not admit of a very detailed view ot the Stamp Acts which relate to the subject of -Legacies, but it was thought an epitome of some of the principal enactments would not, under this head, be unacceptable Id) sVoeo. 3. c. 52. sect. 7, 8. 45 Ib. c, 28. s. 4. 55 Ib. c. 184. Sched. part. 3. (e) 20 Geo; 3. c. 28, s. 3. 23. Ib. c. 58. s. 8, 29 Ib. c. 51. 36 Ib. c. 52. 44 Ib. C. 98. 45 Ib. c. 28. 48 Ib. q. 149. 55 Ib. c. 184. (/) See 36 Ib. e. 5?. s. 21. (#) Burksdale v. Gilliat, 1 Swan. 562. 602 Of the Payment of Legacies [Cn. XIV. 28. In that Act, however, there is an exception, which exempts from duty any sum of money charged by marriage settlement or deed upon any real estate, and which sum shall be appointed by will in exercise of the power. (h) The scale of duties has been varied from time to time, each Act in succession repealing the duties of that which preceded it, and incorporating such provisions of the former Acts as were not ex- pressly repealed by or inconsistent with the last Act for the time being, (i) . ' Legacies of every description ; as before specified, with the excep- tion of such as are given to husband or wife of. the deceased, to any of the royal family,('fe) or to certain bodies corporate, (I) are charged with the following duties upon the- amount or value of such legacies. When the legatee is- a .child, or descendant of any child, of the deceased, or the father, -mother, or any lineal ancestor of the de- ceased, a duty of \l. ' per-* cent. When the legatee is a brother or sister, or any descendant of a brother or sister of the deceased, a duty of 3Z. per cent. When -the legatee is the brother or sister, or . the descendant of a brother ) a simi- lar decision was made by Sir John Leach, V. C. In that case, Sarah Grave, who died in 1815, bequeathed a legacy of 1000J. to K. F. Ansley the wife of John Ansley. The executors, Barnard and Earnshall, two of the defendants, proved the will, in March 1816. Before the legacy was paid, Ansley became bankrupt, and the fn) 36Geo. 3. c. 52. sect. 31. ante, p. 591, (o) 2 P. Will. 129. (/i) 5 Mad. 32. SECT. II.] Of the Payment of Legacies. 609 plaintiffs were chosen assignees. Before the legacy had been paid, K. F. rfnsley, after appointing by will (in exercise of a power) B. A. Ansley and E. R. Comyn, two other of the defendants, her ex- ecutors, died in 1817. The assignees filed their bill against the executors of Sarah Grave, for the legacy to K. F. Jlnsley: The ex- ecutors, by their answer, stated that John Ansley, before and at the issuing of the commission, was indebted to the testatrix Sarah Grave in the sum of 27,OOOZ. ; and that, as jlnsley was entitled in right of his wife to the legacy of 1000Z. they were authorized to set off the same, as far as it would extend, or retain the legacy of 1000/. Sir John Leach, after noticing the case of Jeffs.v. Wood, observed, that the legatee having died without making any claim to a provi- sion out of the legacy, it was discharged of her equity, and the le- gacy would have become the absolute property of the husband, had there not been any bankruptcy ; that against the husband, the ex- ecutors of Sarah Grave would have a right to satisfy the legacy by writing off so much of the debt due to the testatrix; and they must have the sariie right against the assignees. (q) The bill was accord- ingly dismissed. The preceding rule respecting the executor's right to retain the legacy, in satisfaction of the legatee's debt, must of course be taken with this qualification, that the testator does not manifest an inten- tion, either in terms of the bequest or' in other parts of , the will, to remit the debt due to him by the legatee. The mere bequest of the legacy however is not of itself sufficient manifestation of such in- tention. See the last observations of Sir Joseph Jekyll, in- the case ofJejfsv. Wood.(r) The next subject for consideration is, 7. The presumptive payment of -legacies. Courts of Equity are never active in extending relief to stale de- mands, except upon very special grounds. Although the Statute of Limitations does hot bind those Courts by express terms, so as to enable a defendant to plead.it in 'bar to a suit for a legacy ;(*) yet, for the sake of convenience, they have adopted its provisions by ana- logy, in many instances in which fraud made no .ingredient. Upon this principle, it has been determined, that a legacy not demanded for forty years should be considered primn facie as satisfied : but this presumption is not so absolute, as to support a demurrer to a bill for such a legacy ; for the point of satisfaction is an inference, only arising from the length of time which has elapsed from the period the legacy became payable, 'and which may be repelled by clear, strong, and relevant evidence. If, then, the merits of the ques- tion were allowed to be. decided in a summary way upon a demurrer, the legatee would be precluded from the opportunity of producing such testinaony.() A.(u} by his will charged all his estate generally with the payment of debts and legacies. The bill was brought by the second husband of a legatee, after her death, against those in possession of the estate. It was resisted on the ground of presumptive payment, arising from (?) See also Richards v. Richards, 9 Price, E. R. 219. (r) See also Carey v. Goodinge, 3Bro. C. C. 110. (s) 2 Ves. jun. 571. (0 3 Bro, C. C. 633. 646. (w). Jones v. Tuberville. 2 Ves. jun. 11. 610 Of the Payment of Legacies. [Cn. XIV. the length of time which had elapsed without any demand ; which was above forty years; and because the representatives, both real and personal, and all the persons"who could throw any light upon the ques- tion, were dead. The plaintiff, to rebut the presumption, proved that one legacy, of ten guineas, was not paid; and also offered to read the evidence of some bond-creditors, that the debts due to them were not paid. All the other evidence was hearsay. They excused the length of twne, by alleging several infancies in those who had possession of the estate* Lord Commissioner Eyre remarked, that it was a presumption of fact in legal proceedings before juries, that claims the most solemnly established upon the face of them, would be presumed .to be satisfied, after a certain length of time. He doubted as to the relevancy of the evidence, and concurred with Lord Commissioner Ashhurst, in thinking that the Court could not entertain their suit, which, was brought forty years after the right accrued ; but that since the original demand was plain, and there was no positive evidence that it was paid, though the presumption was that way, yet there was -such foundation for the bill, as to make it not a c as. e for costs. In the case x>f Pickering v. Lord Starnford,(&) decided by Lord \fllvanley, M. R. upon a claim made by the representative of one of the testator's next of kin, after a lapse of thirty-five years, tj> such parts of the testator's residuary estate as were secured upon real pro- perty, upon the ground that the disposition was void by the Statutes of Mortmain, his Lordship" acknowledged the propriety of the de- cision of the Lords Commissioners, in the case last -stated, and said if the case before him had been that of a legacy, he woufd have been of opinion that a bar had arisen from the length of .time which had elapsed, upon the ground -of presumptive satisfaction. And it should seem that twenty years would, by analogy to the Statute of Limitations, raise the presumption of payment of a legacy. In the recent case of Montresor v. Williams\(y} which came be- fore Sir John Leach, V. C. upon exceptions to the Master's report, one Duval (a lessee under a lease from the Portland family for ninety-nine years from 1765,) by his will charged his general estate with legacies; subject to which the lease passed to the son -as ex- ecutor and residuary legatee. Duval, the son, in 1806 granted an under lease, which, after various mesne assignments, came to Wigan, who obtained a further term of fourteen years from Duval, and then assigned the under lease to the defendant, who contracted with Ge- neral Montresor, the plaintiff, for the sale of the leasehold premises and the furniture. Among other objections to the title referred to the Master, it was insisted, that the lease being charged with legacies, demands, in respect of these, might be made upon the pur- chaser. Releases were subsequently procured. When the cause came on upon the exceptions to the Master's report, his Honour said, "These releases are unnecessary. The vendor has no right to them. Even without them I should have held, that, where an ex- ecutor twenty years after the death of the testator, sells a leasehold charged by the will with legacies, and no demand has during all (x} 2 Ves. jun. 272. 4 Bro. C. C. 214. (j/) MSS. 1823. March 3, April 16, and May 7, SECT. III.] Of the Appropriation of Legacies. 611 that time been made upon it, there was evidence that the charges had been paid." But in the case of Lee v. Brown,(z) it was decided that a legatee might recover a legacy, though he had lain by for ten years without making any claim. In that case, the facts of which are -before sta.ted,(a) Edward Brown, (the executor and defendant) insisted that the legacy of 100Z. was satisfied, and stated that during the apprenticeship of the plain- tiff, William Brown paid him eighteen guineas, besides declaring that he would afterwards give him 200Z. to set him up in business. There was evidence of declarations by William Brown, that what he had advanced for the plaintiff was so done, as the legacy due to him ; and the defendant admitted assets. The. Master of the Rolls said, that the 200J. had not. been received in satisfaction of the lega- cy, of 100J, ; and the question then was, whether the Court ought to declare the plaintiff still entitled to his legacy, so neglected to be called fop by him when he ought to have called for it ; and ex- pressing his disapprobation of the demand, his Honour observed, that he could not hold it satisfied, and decreed, that the defendant should pay the legacy of IQOl. with interest from the time of filing the bill, at the rate of four per cent, but. he gave no costs on either side. We may here observe, that legatees will, not be deprived of their legacies (as creditors would be of their debts) by not claiming them within the time limited by the advertisements published under a de- cree of the Court of Equity. (6) SECT. III. Of the appropriation of Legacies of Money or Stock. Although legatees are not entitled to receive the principal of their legacies before the time of payment arrives, yet where the legacies are not charged upon real estate,(c) they are entitled to have them .either appropriated or secured, according to circum- stances. Little is to be met with in the books, upon the subject of the pre- sent section ; and the practice of the Court of Chancery respecting it has not been uniform. But the cases, after stated and referred to, seem to authorize the following conclusions : First, where a legatee has a vested legacy of sterling money or of stock, whether he is immediately entitled to receive the whole or only a portion of the interest or annual produce, until the time of payment o/ the principal arrives, he is entitled (o apply to the Court of Chancery, to have the legacy separated from the bulk of the testator's personal estate, and appropriated by investment in the three per cent, consols for his benefit, until the payment of. the principal. (d) , ; Secondly, the same rule obtains, where the legatee takes only a vested life or other less estate in the produce of a legacy of money or of stock. (e) ( z) 4 Ves. 362, stated suftra, p. 593. (a) Ante, 593. (6) Anon. 9. Price, 279. (c) Gatvlerv. Standerwick, 2 Cox, Ch. Car. 15. sufira, p. 436. (rf) Green v. Pigot, 1 Bro. C. C. 103, infra, p. 612. Carey v. Askew, 2 ib. 59. infra, p. &13. (e) Ib. and see Webber v. Webber, 1 Sim. & Stu. 311. 612 Of the Appropriation of Legacies. [Cn. XIV. So also Thirdly, where the legatee is entitled to a vested lega- cy of money or stock, subject to the life interest of another per- son. ('/) Fourthly, where a legacy in .sterling money is given on a con- tingent event, and not any interest payable in the meantime, there the legatee cannot have the legacy separated from the bulk of the testator's estate, and, strictly speaking, appropriated, because it can- not be ascertained what suni of stock will, at the time of payment, produce 'the exact amount of the legacy in sterling money ; and in such cases it is the practice of the Court of Chancery to order the fund to be paid to the person entitled to the residue, he giving real security to th'e legatee Tor the payment, when the contingency hap- pens, (g] Fifthly, the same rule seems to apply, for the same reason, to a legacy of sterling money vested, but not payable until a. future day, and not any interest payable in the meantime ; as where a legacy is given to A. ten years after testatrix's death, as in the case of Ferrand v. Prentice.(h) But where security cannot.be given, or is refused, the only alternative seems to .be to have the money paid into the Bank, or, in other words, invested in the three per cents.(i) But, Sixthly, where a contingent or future legacy is given, not in sterling money, but in stock, and although not any interest is pay- able in the meantime, there, it should see.m, the rule is otherwise, and an appropriation will -be directed; because the reason against appropriation, before stated in respect of a legacy of sterling money, does not apply, since the actual amount of the stock does not vary, though its market .value be subject to fluctuation. To proceed with the cases. In Green v. Pigot,(k) A. in 1775 devised to the defendants all his real estates, in trust to sell and stand possessed of the money to arise by such sale, and of the rents and profits in the mean time ; and he also gave to them his personal estates, upon trust to pay his debts and funeral expenses, and subject thereto to pay legacies amounting to 40,OOOL and (among them) to the plaintiff a legacy of 5000Z. He directed the legacies to be paid to the respective legatees, being males, at twenty -one, and, being females, at twenty- one or marriage, which should first happen, with interest in the meantime not exceeding four per cent, per annum ; and if the leg- atees, being females, should die before twenty-one or marriage, or males, before twenty-one, then he directed that the legacies should fall into the residue, which he gave to the defendant and his sister. The testator .died in 1777, leaving the defendants, Sir R. Pigot, his eldest brother and heir ; and the defendants proved his will. In 1780 the plaintiff (by W. 'Greenher father and next friend) filed her 'bill against the defendants, to have the legacy of 5000Z. paid into the bank of England in the name of the Accountant General, with interest at four per cent, per annum, from the death of the te"s- tator, till such payment should be made, to be placed out in proper (/) Pullen v. Smith, 5 Ves. 21. infra, p. 614. Holland v. Hughes, 3 Mer. 685. infra, p. 614. Houghton v. Franklin, 1 Sign. & Stu. 390. (g) Webber v. Webber Ubi supra. (A) Arab. 273. (j) Ferrand v. Prentice, stated in Green v. Pigot, 1 Bro. C. C. 105. (*) 1 Bro. C. C. 103. SECT. III.] Of the Appropriation of Legacies. 613 funds, or to have the same secured for her benefit, and that the interest of the legacy might accumulate for her benefit till she mar- ried or attained twenty-one, and in the mean time for a proper allowance out of such interest for her maintenance and education. The defendants, by their answer, admitted assets ; and the cause coming on to be heard before the Master of the Rolls, he referred it to the Master to compute interest on the legacy at four per cent. from the end of one year after the testator's death, and ordered that the produce should be laid out in the purchase of Bank three per cent, consolidated annuities, in the name of the Accountant General, upon the trusts and subject to the contingencies in the testator's will. From this decree, there was an appeal to Lord Thurlow (Chancellor ;) who, after noticing the early cases, remarked, that they went to prove, that where a legacy is to be paid, it must be secured. He did not see a distinction as to its being contingent or merely future. " If a legacy be payable at twenty-one, and the child die, his executor cannot claim till the time when the child would have arrived at twenty-one, iFthe legacy does not bear interest ; but, if it be with interest, he may claim immediately. If it bear a less interest than the utmost use, the executor had a right to the use of the money, paying the modified interest; Chester v. Painter ;(l) here, he did not incline to alter the decree at the Rolls. The legacy was to a child, payable at twenty-one, with four per cent interest, which was the ordinary interest given by the Court. If the interest had been severed from the principal, he must order that to be secured. Giving interest even at two per cent vested the principal. Whether the legacy were payable at a fixed or a con- tingent future day, the effect was the same : he must secure the in- terest of the fund. If the interest had been secured as an allow- ance, he must secure a fund equal to it. The Master of the Rolls had done right in ordering it to be laid out in the funds ; but if it should produce more than four per cent, who was to have the sur- plus ? He might order it to be paid to the executor. But should it produce less, could he order the executor to make it up *? no ; he thought therefore the produce must be to the use of the infant. Decree affirmed. (m) In the case of Sitwell v. Bernard,(ri) Lord Eldon says, " In the appropriation as to legacies it would be fit to consider, whether the necessity of appropriating may not give the legatees a larger interest than is given by the will, upon Green v. Pigot ; but there have been other cases since, in which it has been held not to be the legitimate effect of appropriation, to give a larger interest than if there was no appropriation." Again, in the case of Carey v. Askew,(o) B. bequeathed to the plaintiff 15,000/., to be paid at twenty-one or marriage, with interest in the meantime ; but if she" died before, the legacy was to sink into the residue. The question was, whether the legacy should be appropriated, and interest paid, or whether interest should not be raised until the legacy was payable *? The Master of the Rolls said, (/) 2 P. Will. 336, sufira, 583. (m) See also Rock v. Hardman, 4 Madd. 253. and Webber v. Webber, 1 Sim. & Stu, 311. (n) 6 Ves. 543. (o) 2 Bro. C. C. 59. vol.. i. 4 I 614 Of the Appropriation of Legacies. [CH, XIV. that if there had been no directions as to the interest, the law was, that where a parent gave a legacy to a child unprovided for, the child should have interest from the day of the parent's death ; but in the case then before him, the interest must pass by the very words of the will. He thought the money must be immediately raised, although the child might not live to attain twenty-one, or be married ; and his Honour referred to the last case. To illustrate the second and third rules, before stated, where a previous life estate is given in the legacy: In Pullen v. Smith,(p) Rowland Fuller by his will gave to his niece *flnn, wife of Edward Putten, an annuity of 301. a year for her life, for her sole and separate use ; and he directed his trustees and executors, out of his personal estate, to purchase so much stock in the three per cents as would pay the said annuity, and to cause the same to be transferred into their own names for that purpose ; and after . the decease of the said annuitant, he gave the principal sum which should have been laid out for securing the said annuity, to the eldest son of such annuitant ; and, if there should not be a son, to the daughter or daughters in equal shares, if more than one, and he di- rected the interest to be applied for maintenance : the testator then devised to the defendant and two other persons and their heirs, cer- tain real estates, upon trust to sell ; arid he declared that the net money to arise by sale of his real estates should be considered as part of his personal estate, and he appointed the trustees his exe- cutors. After the death of the testator, the bill was filed on behalf of the only child ofrfnn Pullen, an infant, against the trustees and the pa- rents of the plaintiff, praying, in the usual manner, that the trustees might either admit assets sufficient to purchase so much stock as would produce an annual income sufficient to answer the annuity, or that an account might be taken of the testator 5 ? personal estate, debts, &c. and, if necessary, an account of the rents and profits of his real estates received by the said defendants ; and that the will might be established, and the estate sold with the necessary conse- quential directions. The executors, by their answer, stated, that there was then standing in their names, upon the trusts of the will, a very considerable sum in the three per cents, and the whole divi- dends and interest arising therefrom had always, since the decease of the testator, been half yearly paid and divided among the persons entitled, as the defendants believed, to the satisfaction of Jinn Pul- len and her husband, who had never requested any separate appropri- ation for such annuity ; but nevertheless the defendants thereby consented to transfer 1000Z. three per cents, part of the said stock, as a specific appropriation to secure such annuity, and the legacy to the plaintiff. The exceptions taken in the answer were over-ruled ; and the counsel for the defendants consenting, an order was made as upon a motion, that the executors admitting assets sufficient for payment of the annuity and legacy, might transfer 1000/. three per cents into the name of the Accountant General, to that account. In Holland v. Hughes,(q) William Holland, of Calcutta, by his will duly executed, &c. bequeathed to Rebecca his wife 50,000 sicca (ft) 5 Yes. 21. (5-) SMerivale, 685. 5. C. 16 Ves. 111. SECT. III.] Of the Appropriation of Legacies. 615 rupees for her life, to be raised out of the bulk of his property; and after her death, he gave the said principal money to be equally di- vided among his children by his said wife, who should survive her, and for failure of children, to the said wife absolutely. Arid after giving several other legacies, he gave all the residue of his estate, real and personal, to his wife for life, and after her death, to his children as before, and appointed his wife and Samuel Holland (one of the plaintiffs) his executrix and executor, and guardians of his children. The testator died, leaving his wife and one only child (the infant plaintiff) by his marriage with her. The wife alone proved the will in India, and collected the estate ; and after retain- ing the legacy of 50,000 sicca rupees, (which she placed out at in- terest in India,} and after payment of the testator's debts, and the other legacies given by his will, invested the clear residue, amount- ing to 100,000 sicca rupees, in India bonds, the interest of which, as well as of the 50,000 legacy, she received to her own use, and afterwards came to England with her child (the infant plaintiff,) leaving her agent in India to collect and receive any outstanding property of the testator's there, and to remit the interest to her in England. The other plaintiff (who was the executor named in the will) proved in England, and instituted the suit in the names of him- self and the infant, against the widow (who had subsequently mar- ried again) and her husband, for an account and administration to have the amount of the property ascertained, and all outstanding parts of it called in and remitted to England, and laid out and in- vested under the authority of the Conrt. It appeared that the 50,000 sicca rupees legacy, and also the residue of the estate, so far as it was collected, had been invested on securities, yielding a rate of in- terest much more considerable than that afforded by the public funds of this country ; and upon the question being raised, Sir Wil- liam Grant, M. R., was of opinion, that the widow was not compel- lable to refund the excess of the interest which she had hitherto re- ceived above that which would have been produced had the proper- ty been immediately invested in the English funds, but that the in- fant plaintiff, being in this country, had a right to have the property remitted, and invested in the three per cents, in the name of the Ac- countant General, which was ordered accordingly. The fourth rule was acted upon in the recent case of Webber v. Webber;(r) and the fifth and sixth seem to follow from the determi- nation. In that case William Webber gave to each of his daughters 10,OOOZ. on their respective marriages, and after the death of their mother, an annuity of 1200Z. equally while they continued unmar- ried, and after the death or marriage of either, the survivor after the death of the mother was to have an annuity of 800Z. in lieu of her moiety of the annuity of 1200Z. so long as she continued unmarried. One of the daughters married in testator's lifetime : after his death a suit was instituted for the administration of the testator's personal estate ; and the Master reported all the debts and legacies paid, ex- cept the 10,0001 given to the unmarried daughter Mary; and that 16,000*. three per cents, part of the funds in Court, were, according to the market price of such stock on that day, mentioned in the re- (r) 1 Sim. & Stu. 31 L 616 Of the Appropriation of Legacies. [Cn. XIV. port of the value of 10,000i. That sum was carried to Miss Webber's account, subject to the contingencies in the will concerning her le- gacy. The widow died ; and upon the petition of Miss Webber, in- sisting that she was, in the events that had happened, entitled to an annuity of SOOZ. an order was made, directing two sums of 13,333J. three per cents, part of the funds in Court, to be appropriated to an- swer the annuity. Upon the petition of other parties to have the sum of 16,OOOZ. carried over from Miss Webber' s account to the cre- dit of the cause generally, and that the two sums of 13,333Z. might be declared to be a fund for answering both the annuity and legacy, as Miss Webber never could be entitled to both the annuity and le- gacy : Sir John Leach, V. C. observed, that the legatee being enti- tled to receive a certain sum in money, when the event of her mar- riage happened, her legacy was not capable of being secured by the present appropriation of any sum of stock. And he decreed, that the residuary legatee should receive the whole fund in Court, upon giving security, to the satisfaction of the Master, for the payment of the legacy, if the event happened : and that the legacy might be secured upon land, if the residuary legatee had land, or by a loan of money upon land. When the appropriation is made inpais by the executors or trus- tees, the whole sum must be properly invested, and they must pro- ceed in the same manner as the Court of Chancery would, if a suit had been instituted to have the legacy secured, in which case the appropriation will be good; but if they act otherwise, they will not be indemnified in making the appropriation, although they may have acted bond fide. In Cooper v. Douglas,(s] A. bequeathed 40001. to his cousin S. Cooper, a co-plaintiff with her husband, to be paid within three months after her marriage ; and until such marriage, interest should be paid to her at 31. per cent. ; and appointed E. Wine executrix. In 1767, the executrix invested 40001. in the purchase of 44401. stock, and conveyed the same to trustees, in trust to pay a third person, but is only confined to the vendor and vendee ; and the vendor should exhaust the personal assets of Moore and J. Kemp, the defendant will not be entitled to stand in his place, ancUp < upon the purchased estate in the possession .of/. Kemps heir. JW then the heir of Kemp shall not avail himself of the injustice of father, who has wasted the assets of Moore, which should have () The rule was admitted in the case of Scottv. Scott. (q] There Scott devised to Henry his eldest and only SQJI by a former wife, and to his hairs and assigns, all other his real estate not before devised; nevertheless, in case he should die without issue, not having attained twenty-one, then immediately after his death under age and without issue, unto the testator's son William and the heirs male of his body, with remainders over. The eldest son attained twenty-one. The specialty creditors, not having a lien on the estate, having exhaust- ed the personal estate in satisfaction of their demands, the legatees contended to stand in their place, and come upon the. real esta-te. The question was, whether the eldest son took by devise or descent ; in the latter case, the legatees would be entitled, in the former not. And the Lord Keeper Henley, after having taken time to consider the point, gave his opinion, that the eldest son took by devise, as having under the will a different estate from that which would have descended to him; the one being pure and absolute, the other not. SECT. IV. Exception, where the estate is devised. But where the estate is neither charged with debts, nor legacies, nor subject to any specific lien, but there is only a general lien on the estate, and the estate does not descend to the heir, but is devised to a stranger, or to the heir taking as a devisee, the assets are not marshalled at least in favour of general legatees, so as to throw the general bond creditors upon the real estate. The reason is, that the will affords evidence of as strong an inclination on the part of the testator in fav6ur of a specific devisee, as of a general legatee. Thus, in the case of Clifton v. Burt,(r) John Bignold devised all his estate in Morrow and Stoke, to his son John Bignold, in tail, re- mainder to Joseph Burt in fee. He also devised his copyhold es- tates, which he had before surrendered to the use of his will, to his said son- J. Bignold, in tail, remainder to the defendants Joseph Burt, James Burt, and Elizabeth Horsnaile, and their heirs, (subject to the annuity therein mentioned,) to the intent to sell the copy- hold, and to apply the money to make good his debts and legacies, and he devised the residue to Joseph Burt, James Burt, and Eliza- beth Horsnaile, equally. The testator further devised to the plain- tiff, 500Z. within three months after the death of the testator's son, if he died under age, and unmarried, in which case, he directed that all his personal estate, beyond what would pay his debts and funeral expenses, and the 5001. and the other legacies given by his will, should be equally divided among Joseph Burt, &c. and he appoint- ed the plaintiff and two other persons executors. The son died under twenty-one ; Lord Harcourt decreed, that the rents of the f /O See also Herne v. Meyrick, 1 P. Will. 202. (y) Arab. 383. (r) i p. Will. 678. SECT. V.] in favour of Legatees. 637 real estate, together with the personalty, should be applied in pay- ment of debts and legacies ; but in case of deficiency, and if it ap- peared that any of the specialty creditors had been paid out of the personal estate, then the simple contract creditors and legatees were to stand in their place, and have satisfaction out of the real estate so far as the personal estate had been applied in payment of such debts, in equal proportion. Upon an appeal from this judgment, Lord Chancellor Parker reversed so much of the decree, as directed a sale of the freehold ^^e for the satisfaction of the legacy of 500J. and observed ; First,^Hfc although equity will marshal assets in favour of a legatee, as well as of a simple contract creditor, yet every devisee of land is as a specific legatee, and should not be broken in upon, or made to contribute towards a pecuniary legacy. Secondly, that it was a rule, that if one give a specific legacy of a horse or diamond, and also a pecuniary legacy of 5001. to B. and there were not assets to pay both, still the specific legatee should be preferred, and have his whole legacy ; for were the executor to make him con- tribute towards the pecuniary legacy, this would be, pro tanto, to make such specific legatee buy his legacy, against the manifest in- tention of the testator. Thirdly, that if a specific personal legatee should not contribute towards a pecuniary legacy, much less should a specific devisee of land. Fourthly, that if in the principal cas.e the testator had devised the 500Z. to A. and 'a term of five hundred years to B., without leaving assets to pay the 500Z. still the specific legatee of the lease ought to prevail, without contributing towards the pecuniary legacy, and if such pecuniary legatee should not break in upon a specific legatee of a term, a fortiori, he should not disappoint the will as to a devise in fee, which was to be favoured more than the devise of a term, in regard it .was with more diffi- culty that a Court of Equity, in any case broke in upon, or charged, the real estate. But there appears to be a distinction in the application of the pre- ceding rule, as to marshalling in favour of specific legatees ; for in that case it seems, that the real and personal assets specifically de- vised and bequeathed, will, upon'failure of the general personal es- tate, be so far marshalled, (if indeed that term can in strictness be applicable,) that the specific devisee and legatee shall, each in pro- portion to the value of their respective gifts, contribute to the pay- ment of the specialty debt. But with respect to a simple contract creditor, the exception is not admitted ; for he must resort alone to the personal estate specifically bequeathed, as that is the only fund liable, to his debt. This exception, in favour of the specific legatee seems more properly to fall under the doctrine of abatement, before discussed in Chap. V. sect. 2.(s) The case of Long v. Short,(t) seems to establish the above excep- tion. In that case, David Long, seised in fee of some lands, and possessed of a lease for years in other lands, and being indebted by specialty and simple contract, devised a rent-charge of 40J. a year, out of the lease for years to one grandson, the lease itself to another grandson, and all his land in fee to the plaintiff and his family in (} p. 253. (0 1 P. Will. 403. 4 M 638 Mashalling of .Assets [Cn. XV. strict settlement. None of the devisees were the testator's heir, and the will was made since the statute for relief of creditors against fraudulent devises. (w) There being a deficiency of assets to pay debts, the question was, whether they should be charged on the freehold or the leasehold estate 9 And it was decreed by Lord Cow- per C., First, That the devise of a rent-charge out of a term, was as much a specific devise, as if it had been of the term itself. Se- condly, That the devise of a term for years was as much a specific devise as a devise of land in fee ; wherefore each being equally spe- cific devises, it would, in this case, be an equal disappointment of the testator's intention to defeat either, by subjecting it to the tes- tator's debts. Thirdly, That since the statute of Fraudulent De- vises, lands in fee were. equally subject to debts by specialty in the hands of the devisee, as leases in the hands of the executor or lega- tee were to debts by simple contract at common law; so that, to prevent the disappointment of the testator's intention, the Court thought it reasonable, that the devisee of the fee simple estate, and the devisees of the lease and annuity, should respectively contribute to the debts by specialty, in proportion to the value of the premises ; but that as to the debts by simple contract, if there should not be enough besides to pay them, they should fall upon the leasehold premises only. It was objected, that the fee simple lands ought to be more favoured than any of the personal estate and leases, for that the latter had always been decreed to go in aid of the former, and therefore, in this case, the leasehold estate ought to bear all the debts by specialty, as far as it would extend. But this objection was overruled by the Lord Chancellor, for that it might utterly dis- appoint the testator's intention in providing for his grandsons out of the lease; though his Lordship allowed, that if the devise had been to B. of all the rest of the testator's lands, it. would have been a re- siduary, not a specific devise, and the devisee should not have come in till after the debts by specialty or otherwise had been paid out of his inheritance. The fifth resolution in Haslewood v. Pope,(x] may probably at first sight be considered at variance with the case last cited. That re- solution was in these words : " Where a man dies indebted by bond and leaves a personal estate, and devises lands to J. S. in fee, and gives specific legacies, and the creditor by bond comes on the per- sonal estate to be paid his bond ; the specific legatees shall not stand in the place of the bond creditor, to charge the land devised, be- cause the devisee of the land is as much a specific devisee as the le- gatee of the specific legacy." It is presumed that Lord Talbot, in the expression "the specific legatees shall not stand in the place of the bond creditors to charge the land devised," must have intended, not that the devisee should not contribute, but that the specific le- gatee had no right to have the assets marshalled against the specific devisee, so as to throw the bond debt exclusively upon the real es- tate devised, to the exoneration of the personalty specifically be- queathed. In this qualified sense, the resolution in question and the case of Long v. Short probably may be reconciled, but the point cannot be considered free from doubt. The two authorities last ( u ) 3 Will & Mary, ch. 14. ( x) 3 P. Will. 322. SECT. V.] in favour of Legatees. 639 cited are clearly distinguishable from the case of Cliftonv. Burt,(y) which decided that, in the absence of any charge of debts, or any specific lien upon the estate devised, specialty debts should not be thrown on the devised estate, in favour of a general legatee. SECT. V. The extent to which equity will permit legatees to stand in the place of specialty creditors. Having considered, in the preceding sections, in what cases equity will and will not marshal assets in favour of legatees, as between them and specialty creditors; we proceed to inquire, to what extent it will permit the legatees to stand in the place of specialty credi- tors, in those cases, where the assets are thus marshalled. The rule of the Court is, that legatees shall not be entitled to any greater privilege or advantage than the creditors themselves would be enti- tled to, from the amount or nature of their securities. The subject has been in a manner anticipated in the preceding sections, and suf- ficient cases have been adduced to show, that the legatees are enti- tled to resort to the real estate, only to the amount of the specialty debt or lien upon the real estate, in discharge of which the personal estate may have been previously applied. It remains further to re- mark, that if a creditor cannot, under his contract, affect the real assets in the hands of the heir or devisee, with the payment of his debt, a legatee who merely stands in his place, and upon the same terms, cannot be in a better situation. This is the case with all debts by simple contract, or by specialty, where the heir is not ex- pressly bound by the contract; and, if so with them, legatees must be in the same predicament. The case of Lacam v. Mertins(z) illustrates this rule with respect to a simple contract creditor, and may therefore be applied to the case of a legatee. In that case, Mrs. Hay, in the life of her hus- band, levied a fine of her estate, making it subject to a debt of 2000J. which had been contracted by her husband. After his death, she borrowed a further sum of 400?. and by an indorsement agreed, that the estate so pledged should stand charged with this 400L and not be redeemed without payment of all these sums. The question was, how far simple contract creditors were entitled to come upon her 'real estate, in the place of specialty creditors. And by Lord Hardwicke, C., it was observed, "The rule of the Court, as to mar- shalling assets, and directing simple contract creditors to stand in the place of specialty creditors, pro tanlo, to receive satisfaction, is a very just and beneficial rule, and ought to be adhered to ; and Court leans and endeavours to bring creditors within that rule, and extends it that all the creditors may receive satisfaction : yet it must be as between the real and personal assets of a person deceased ; for the Court has no right to marshal the assets of a person alive ; it not feeing subject to such a jurisdiction of equity till the death. Nor can the court extend this relief to creditors, further than the nature of the contract will support it ; therefore it must be cialty creditor of the person whose assets are in question, sucJi a might have remedy against both the real and personal estate either, of the debtor deceased : it not being every specialty c (y) Sufira, p. 636. (z) * Ves. sen. 312. 640 Marshall 'in g of Assets [Cn. XV. in whose place the simple contract creditors can come to affect the real assets ; viz. where the specialty creditor himself cannot affect the assets, as where the heirs are not bound ; and such it is here : heirs not being bound in the covenant. Now, to apply these general rules to the debts in question : for such debts, upon which there might be remedy against her in her life, or against her representa- tive after her death, the simple contract creditors are entitled to re- ceive satisfaction, pro tanto ; and therefore, for the 4001. as being a specialty debt upon her own bond, after the husband's death, satis- fied out of her personal assets ; but not as to the 2000k, which there is no ground to make her personal debt, or any debt of hers. It was originally her husband's, nor could she then make herself-liable by contract. There is no covenant for her payment of the money, nor is there such a covenant, upon which any remedy could lie against her personal estate, unless she had been guilty of a breach ; all the covenant being, that the estate should stand charged. This cove- nantee, therefore, could not have brought an action, or other remedy, against her or her representative, because no breach. Then there is nobody, in whose place to come pro tanto; and this is a case for which the Court never would strain, however liberal they are in such cases, in the construction for creditors; for it is material in this case, that it is the husband's debt, and the intent was, not to change the nature of it, and to make it her debt, for it is only recited in the deed, and the recital of a debt under hand and seal has been held to be no specialty debt, for it must stand upon its own force ; and so I have known it determined by Sir Joseph Jekyll." It may be properly noticed in this place, that, in instances where there is not any deficiency of assets, if a creditor apply the subject of a specific bequest in satisfaction of his debt, the executor or resi- duary legatee will be obliged to make the specific legatee a recom- pense out of the general assets, as they can retain nothing to their own use, but the residue, after debts and legacies paid. Thus, in the case of Bowaman v. Reeve,(a) the testator being seis- ed and possessed of a considerable estate in Holland, consisting of houses, goods, merchandises, jewels, and other effects, and being a native of that country and residing there, sent for a notary public to make his will, and, according to the custom of the country, an instrument was drawn up in the nature of a will, and executed, whereby the testator gave some of the houses to the minister of the Presbyterian meeting there, and others to the minister of the Re- formed Church there ; and then gave all the residue of his goods, chattels, plate, jewels, and other effects, (which were very particu- larly enumerated,) to the defendant, whom he made universal heir and executor, and died possessed of a very considerable personal estate in England, besides what he had in Holland. By the laws . of Holland, there is no distinction between real and personaPestate, but both are equally liable to the satisfaction of creditors ; and there- fore, after the testator's death, his creditors in Holland took posses- sion of the houses specifically devised, in satisfaction of their debts ; and though there were other considerable effects in Holland, yet the residing devisee and executor would not intermeddle therewith ; be- (c) Pre. Ch. 577. SECT. V.] in favour of Legatees. 641 cause, if he did so, by the law of that country he must take upon him the payment of all the testator's debts, notwithstanding a defi- ciency of assets; but he proved the will in England, and possessed all the testator's estate and effects here, upon which the plaintiffs, who were devisees of the houses in Holland, brought the bill against the executor, and residuary legatee, to have a recompense in proportion to the value of the houses. And the Chancellor de- creed an account and satisfaction accordingly; although it was urged, that those houses, by the law of this* country, were liable to the payment of debts, and therefore, the specific devisees ought to take them liable thereto, and that the testator never intended to give them otherwise, or to give them any other part of his estate. And his Lordship also said, that there was no difference between a devise of these houses, and a devise of a house or a term for years, and that in those cases, if the creditors brought an action, or sued out execu- tion upon a judgment against the executors, and took the house or term for years, in execution, which they might do, notwithstanding the specific devise thereof, yet, most certainly, the executor or resi- duary legatee, should be obliged in equity to make them a recom- pense ; for they were to have nothing to their own use but the resi- due, after the debts and legacies paid, and the residuum was chargeable with the debts ; though, as to the creditors, they might take what they thought fit in satisfaction of their debts, and the enu- merating of particulars in this devise of the residuum, made it no more a specific devise, than if he had only said in general, all the rest of his goods and chattels, or such like words ; and therefore this residuum was liable to the payment of debts, although the cre- ditors thought fit to fix on other parts of his estate, and thereby deprived the specific legatee of what was intended him. SECT. VI. The consideration of those legatees for whom a Court of Equity will not marshal assets. We proceed to inquire what legatees they are for whom equity will not marshal assets. 1st. It appears to be now settled, that equity will not marshal the assets, in instances, where the legatees, at the time of the legacies becoming due, have not an established claim distinctly and solely upon the personal estate. If, therefore, a legatee have a claim, at the testator's dea'th, upon both the real and personal assets for the payment of his legacy, but by some subsequent event, as the death of the legatee before the time of payment, the remedy upon the real estate is defeated ; the Court will not marshal the assets in favour of the legatee's representative, so as to preserve a personal fund for payment of the legacy. This Lord Hardwicke expressed as his opinion in the case of Prowse \.Mingdon.(b) the facts of which are before stated. The executors were not before the Court, and no decree respecting the marshalling of assets, so that the legatee might be satisfied out of the personal estate, could be made ; but his Lord- ship clearly expressed his opinion, that it could not be done : "For that the rule of marshalling assets in manner before mentioned, would hold, only where it was proper to be done at the time the Ic- (6) 1 Atk. 482. supra, p. 435. Ord v. Ord, 2 Dick. R. 439. & P. 642 Marshalling of Assets [Cn. XV. gacy first took place, and not where it was owing to a fact, which happened subsequent to the death of the testator, and to a mere ac- cident, the death of the legatee before twenty-one." Lord Hard- K'icke, however, seems to have altered his opinion in the subsequent case of Reynish v. Martin ;(c) but the rule as above stated has been revived by Lord Loughborough's decision in the case of Pearce v Loman.(d) In that case, Joseph Palmer devised all his real estate in the parish of Srodwinson, in the county of Dorset, to Robert Pearce and Robert Taylor, upon trust, to permit his mother to re- ceive the rents and profits for her life, and, after her decease, to ap- ply the same for the maintenance and education of Thomas Pearce, son of Robert, until he should attain twenty-one, and when he should attain twenty-one, in trust for him in fee ; and if he died under twenty-one, upon other trusts. The testator gave to Thomas Pearce, and Robert, another son of Robert Pearce the elder, 1000Z., to be paid at twenty -one, with interest at three per cent, in the mean time from his (the testator's) death, to be applied for the support and education of Thomas Pearce and Robert Pearce the younger. After several other legacies, the testator gave other real estate in the pa- rish of Crewkerne, in the county of Somerset, and all the residue of his personal estate, subject and charged with the payment of his debts, legacies, and funeral expenses, to his two trustees, in trust, to see his debts, legacies, and funeral expenses paid, and, after pay- ment thereof, in trust for his cousin John Perkins absolutely, upon condition he should discharge the testator's debts, legacies, &c. and the testator appointed his said trustees executors. Robert Pearce the younger died under twenty-one, intestate and unmarried, whose father as administrator claimed the legacy. The question was, whe- ther, as the legacy was a charge upon the real as well as the person- al estate, the Court would so marshal the assets, as to direct pay- ment of the legacy out of the personal estate, although it failed as a charge upon the lands by the death of the legatee before the time of payment. l^ordLoughborough,C. after noticing Lord Hardivicke's observations before stated in Prowsv v. Jlbingdon, expressed himself thus ; " If marshalling could be carried to the extent of Reynish v. Martin, it might have been pursued in all the cases, that have been decided. There is a singularity in the doctrine, as it now stands : that, as far as it affects one fund, it is good ; as far as it affects the other, bad : but it would be still more singular, if it shall sink in one case, and not in the other, but the land making good the personal estate shall be charged. The point was of very little moment in Reynish v. Martin ; for in Mr. Forrester's note, the gross amount of the personal estate is stated to be 100J. and Mr. tyilbraham, in Lord Hardwicke's note, says, it is 100Z. odd shillings and pence, therefore he speaks accurately from an account of it. The legacy was SOOJ. Therefore, I would not follow that case to introduce a new point with regard to marshalling assets against established rules. The assets cannot be marshalled. It would be directly against Prowse v. Abingdon: the contingency is the same, and I cannot charge tho real estate indirectly. I have found, in Lord Hardwicke's note book, c) 3 Atk. 330. ) 3 Ves. 135. sec also Duke of C/iandos v. Tulbot, 2 P. Will. 612. SECT. VI.] in favour of Legatees. 643 the case of Lowe v. Mosely referred to in the argument. There is very little of it, but exactly what he states. The note is this : " Lowe v. Mosely, upon the will of Mills ; 300Z. given to his daughter : 1 50Z. at the age of twenty-four ; 150/. at twenty-six. He devises his real estate to his son James, he paying debts and legacies. Several questions upon acts the son had done. He had mortgaged : ques- tioned, whether the charge remained against the mortgagee. She died between twenty-four and twenty-six. I was of opinion, that 1501. was due ; but that the other 150JL sunk into the real estate, she dying under twenty-six." Not a word said about marshalling : it was a mixed fund, and a mortgage, I think, was one pf the charges that affected the personal estate." 2. Equity has also refused to marshal(e) the assets, in favour of legacies given to charitable uses ; as that would be considered a mean to evade the Statute of Mortmain, (/) and to affect, in sub- stance, a charge upon the land, within the spirit of that act. In Mogg v. Hodges,(g] Jane Churchill devised her real estate to trustees, to be sold, the profits to be applied to the uses of the will. She directed that her debts and legacies should be paid out of the personal estate, made the trustees executors, and left them all the residue of her personal estate, and of the money to arise by sale of the real, to be given in what charities they should think proper, re- commending particularly to them the hospital at Bath. The ques- tion was, whether the assets should be so marshalled, that all the other legacies should be paid out of the real estate, so as to leave the personal to go to the charity 1 ? And Lord Hardwicke said, he thought himself not warranted to set up a rule of equity, contrary to the com- mon rules of the Court, merely to support a bequest which was con- trary to law. In the case of Attorney General v. Tyndall,(h] Mary Packer de- vised all her freehold and leasehold estates, to trustees to sell, and out of the money to buy ground for an almshouse in the parish of St. James's, in the city of Bristol ; and likewise to erect an almshouse, and to lay out the residue of the money in land ; and out of the rents and profits to pay certain stipends to twenty poor people, whom she had before appointed to be in the almshouses ; and until such purchases could be made, she directed the money to be laid out on real, or Government securities. And incase the charity- could not by law take place according to her directions, then she ordered her trustees to lay out the money. in such charitable uses, intents, and purposes, as near to her intention as could be, and the laws would permit. She then gave the residue of her estate to such uses, in- tents, and purposes, as aforesaid. By a decree in 1759, it was declared that the devise of freehold and leasehold estates to the charity was void ; and an account was directed to be taken of the personal es- tate. On further directions, the Master of the Rolls declared, that if the trustees could obtain the gift of a piece of ground in St. James's parish, Bristol, they might erect an almshouse upon it, and declared, that the trustees were entitled to have the assets marshal- (e) For instances of apportionment, vide infra. (/) 9 Geo. 2. c. 36. (g) 2 Ves. sen. 52. (A) Amb. 614. 644 Marshalling of Assets [Cn. XV. led, by applying the leasehold in the first place in payment of debts, legacies, funeral expenses and costs, in order to leave more of the personal free and clear for the purposes of the charity. The de- fendants having appealed from this decree, Lord Henley, Chancellor, after argument at bar, and time for consideration, thus delivered his opinion : " As to the freehold, there is no doubt that must go to the heir at law. The question respects only the leasehold, which, by reason of the devise being void, falls into the residuum. And on this, whether the Court shall marshal the assets, and by applying the leasehold in the first place to payment of debts, -leave the other assets to be applied to the charity, and by that mean do per obli- quurri, what could not be done per directum. This .would be a me- thod to elude the statute, which I will not do. The second question respects the building an almshouse, if the trustees can get the ground given them. The decree in this part is founded upon the precedent of the Attorney General v. Bowles, which is an authority for the Master of the Rolls. But I feel only one authority, that of the House of Lords, which is a superior court ; no other authority has any in- fluence on my judgment. The precedent has no influence upon me ; it is contrary to the spirit of the statute. In common sense, it is laying out money in land : it improves the scite, is demandable in a pr&cipe, and is a purchase of so much realty ; such a determination is opening a door to avoid* the statute." And his Lordship held the devise of the residue to be void, as being given to be laid out in lands and tenements. And the decree was reversed. Again in Foster v. Blagden,(i) Sarah Knapp devised her real and personal estate, after payment of her debts, funeral expenses, and charges of proving her will, to the plaintiffs, in trust, to dispose thereof, and directed the trust money to be paid to certain charita- ble uses. The question was, whether the Court would marshal the assets, and order the debts to be paid out of the real estate,, in order that the personal might be left clear, so that the devise to the charity might take effect. Smith, Baron, who sat for the Lord Chancellor, declared his opinion, that the debts could not be thrown upon the real estate ; and that the cases of Mogg v. Bath Hospital, and the Attorney General v. Tyndall, were in point. Again, inHillyardv. Taylor, (k) William Brown, after devising an estate to the plaintiff and his family, and several legacies, be- queathed all his personal estate, together with his estate at Foxfield, held by lease of the Bishop of Winchester, descendible to his right heirs, in trust, to sell the said estate, and .out of the money to pay his just debts, funeral expenses, and several legacies ; and the War- den and Fellows of Winchester College 100/., to be disposed of as they should think fit, for the use of superannuates, not succeeding to New College : to the county hospital at Winchester, 501. ; to the Governors of the charity for relief of poor widows and children of clergymen, GOO/. And after reciting, that it was uncertain what his effects might amount to, he gave whatever remained, after payment of debts, legacies, and other charges, to his executors, to be disposed of to such charitable uses as they should thmk fit, and appointed (i) Amb. 704. (*) Amb. 713. SECT. VI.] in favour of Legatees. 645 Taylor and Knapp executors. In 1761, the Master of the Rolls de- creed, that if the personal estate should be wholly or in part ex- hausted, in satisfying the debts and funeral expenses, and such of the legacies as were not given to charity, then the legatees of the charitable bequests should stand in the place of specialty creditors, and receive a satisfaction pro tanto, out of the real estate : but with- out prejudice to the question, whether the legacy of 100?. given to the Warden and Fellows of New College, was within the saving clause of the Statute of Mortmain, which might arise, in case the before mentioned marshalling of assets should not -be sufficient to furnish the whole of the legacies given to charities ; and he directed an account of the rents and profits of the Hampshire estate, and the balance to be applied to make good the deficiency of the personal estate ; and if those funds should prove deficient, the real estate in Hampshire to be sold, and applied to make good the deficiency. The personal estate, and the rents and profits of the Hampshire estate, proving deficient, that estate was sold, and the purchase money paid into the Bank, and laid out in 4295Z. 15s. Sd. three per cent, annuities. After twelve years, there was an appeal from the above decree, occasioned by the determination of Foster v. JBlag- den.(l) And the Lord Chancellor, without hearing the reply, re- versed the decree, so far as related to the charitable legacies to Winchester Hospital, and for the relief of widows and children of clergymen, on the authority of Foster v. Blagden, and directed an inquiry, what fund was established at Winchester College, to defray the expense of superannuates at either of the Universities ; and, after ordering the costs, declared that the residue of the three per cents, belonged to the heir-at-law. In Makeham v. Hooper,(m] Joseph Lloyd, being seised of free- hold and copyhold estates, and possessed of leasehold and other personal property, devised to trustees all his freehold, leasehold, copyhold, and personal estates to sell, and out of the money to pay, among other legacies, 2001. to the Bath Infirmary, # and other chari- table legacies to the amount of 1200Z. ; also 2001. to erect a monu- ment to the memory of J. Curie; and after payment of several ge- neral legacies, to pay the surplus of the money arising from the real and personal estates, unto the plaintiff, and D. Evans, and appointed them executors. Evans died in the life of the testator. By codicil, among other legacies, the testator gave to two of the defendants 1001. in trust for another charity, (but without naming any fund out of which it was to be paid), and ordered a monument to be erected to himself. He afterwards made a second codicil, by which he gave some legacies, and died in November 1781, leaving the plaintiff his surviving executor and residuary legatee, and two others of the de- fendants his heirs at law, and next of kin, who had assigned their claims to the plaintiff. The bill, after the usual prayer in regard to the will and codicils, and the general personal estate, prayed that the charitable legacies might be declared void, and to fall into the residue ; and that the real estate might be sold, and the clear re- sidue of the money, as also the testator's personal estate might I (/) Sujira, preceding page. (w) 4 Bro. C. C. 153. VOL. r. 4 N 646 Marshalling of Assets [Cn. XV. declared to belong, and be paid to the plaintiff as residuary legatee. The cause was heard before Lord Thurlmv, C. in February 1784; and by the decree, the will and codicils were declared well proved, and ought to be established and the trusts performed ; and it was referred to the Master to take the proper accounts, and to distin- guish what arose from chattels personal, and chattels real ; and he reserved the consideration, whether the charity legacies were to be paid, and in what manner, and all further directions till after the Master's report: from which report, it appeared, that the money received by the -plaintiff and the trustees, amounted to 198SZ. Is. 1\d., and that they had paid 10311. 15s. bd. : so that there remained a balance of 950/. 12s. 2%d. That the legacies, besides the chari- table ones, amounted to 4490Z. So that the personal estate fell short of paying the same in 3539Z. 7s. 9%d.; and that the real and leasehold estates sold for above 6000/. The question was, whether the assets should be marshalled'? And it was decreed in the nega- tive; Ashurst, Lord Comm. observing, that " he thought they were bound by the recent cases with respect to the question of marshall- ing: that it did not appear what was the reason of the turn in the cases, but as the decisions had taken that course, they would not alter them." But the legacy to the Bath Infirmary, was ordered to be paid, in consequence of the Act of the 19th Geo. 3. c. 23. per- mitting that charity to take in mortmain. The preceding authorities clearly settle the rule, that the Court of Chancery will not marshal the assets, so as to throw the debts upon the real estate and leave the personal a clear fund for the cha- rity; but it will be proper in this place to notice a rule of the Court in the administration of the general residue bequeathed to a charity, and consisting partly of mortgage securities and leaseholds which savour of the realty, and partly of assets purely personal. In such case, the bequest of the residue, so far as regards the mortgage securities and leaseholds, fails, as being within the Statute of Mort- main, and lapses for the benefit of the next of kin. As between such next of kin, who are considered in the light of legatees of the mortgage securities and leaseholds, and the charities which have an indisputable right, as legatees of the other personalty not partaking of the nature of real estate, the Court will not allow a creditor or general legatee to resort exclusively to the assets purely personal, to the disappointment of the charity, but will direct a rateable con- tribution by the charities and next of kin, in proportion to their re- spective interests, for the satisfaction of the debts and legacies. In the exercise of this branch of equitable jurisdiction, the Court adopts a rule well established by the case on marshalling, namely, that a person, having two funds to resort to for the satisfaction of his de- mand, shall not, by his option of resorting to either of those funds, determine whether one of two parties, whose equities are equal, shall be paid or not. The above rule respecting contribution does not appear so dis- tinctly stated, that it was acted upon in the case of Attorney Gene- ral y. Winchelsea.(n] Nor indeed has the Editor discovered an earlier case, wherein it is explicitly laid down. In the case just men- (n) 3 Bro. C. C. 373. SECT. VI.] in favour of Legatees. 647 tioned, and which will be more fully stated in a subsequent part(o) of this work for another point, the Rev. Robert Chapman be- queathed the residue of his personal estate to trustees, upon trust to invest it in the funds, and apply the annual produce for the sup- port of certain charities. A considerable part of this residue consisted of money secured on mortgage. One of the questions in the cause was, whether the be- quest of the residue, so far as it related to the real securities, was not void, as being within the Statute of Mortmain, and it was in- sisted for the next of kin, that they were entitled to these mortgage securities. The Master of the Rolls, as appears from a note of part of his judgment given in Belt's edition, page 380, first considered the cases as proving that the assets could not be marshalled ; and then said that he conceived this case to stand upon the same ground, as if the testator had specifically bequeathed his mortgages to one per- son, and the other part of his personal estate to another. In such a case, they should contribute to the payment of the debts and legacies rateably, according to the amount of what they each took. The next of kin, in that case, he considered, as if he had been a legatee of the mortgages, and therefore decreed that the payment of the debts and legacies should be made out of the mortgages, and out of the rest of the personal estate rateably according to the amount of each of them respectively. The rule was stated in Howse v. Chapman,(p] arguendo, by the counsel for the next of kin, and acted upon by the Court. In that case, Leonard Coivard, after enumerating several specific parts of his residuary personal estate, gave the same, after payment of debts, legacies, funeral, and testamentary expenses, to be appropriated to the improvement of the city of Bath. There were parts of the per- sonal estate not enumerated, and undisposed of. After the testators death the bill was filed by the executors to establish the will, and ascertain the rights of the parties ; the heir at law and next of km contending, that the bequest of the residue was void for uncertainty of its object, or, if not void on that ground, it was void under the statute 9 Geo. 2. c. 36. as to such parts as were of the nature or consisted of real property. By the decree the will was established, and the trusts directed to be carried into execution, except as to the money secured on real estate ; and an account of the personal estate was directed. From the Master's report, it appeared that part of the personal estate, which was held to pass by the bequest for the im- provement of the city of Bath, consisted of mortgages to the amount of 49501 certain bonds of the commissioners for the improvement of the city of Bath, Bath corporation and turnpike bonds The cause coming on for further directions, a point was made on behal of the next of kin, that the debts, legacies, and funeral expenses, and the costs of all parties were to be paid in equal shares, out ot the personalty bequeathed for the improvement of the city of Bath and the personal estate undisposed of. On behalf of the next of kin Attorney General v. Winchelsea was cited, and it was urged, .t where a residue is left for charitable purposes including ?? rtga ges and other interests that cannot go to the charity, the del (o) Vol. 2. chap. 19. sect. 7. (/O * Ves 542 ' 648 Marshalling of Jlsscts [Cn. XV. legacies shall be paid out of the two parts of the estate pro rata :" and the Lord Chancellor said, the bequest of the city of Bath of particulars enumerated was specific, that the articles not enumera- ted went to the next of kin, and that the general residue was to be applied, in the first place, in payment of debts and other charges. And he further observed, that the case was directly within Attorney General v. Winchelsea^ with regard to the mortgages and other things that were taken out of the bequest ; because the law takes them out of it. The decree declared, that the bequest for the im- provement of the city of Bath was a charitable bequest, and that the mortgages and bonds of the commissioners for the improvement of the city of Bath and the turnpike bonds did not pass, but were undisposed of by the will, and belonged to the next of kin ; and it was directed ^jat the Master should distinguish such of the particu- lars of the personal estate specifically bequeathed for the improve- ment of the city.of Bath, as were well given, from such particulars as did not pass thereby, but belonged to the next of kin ; and it was further ordered, that the same be applied pro rata for the payment of so much of the testator's debts, legacies, and funeral expenses, and of so much of the costs as the general residue of the testator's personal estate undisposed of by his will would not extend to pay, and that such particulars of the personalty, specifically bequeathed for the improvement of the city of Bath, as did not pass, be divided, after payments before directed, among the testator's next of kin, according to the Statute of Distribution ; and that such particulars, specifically bequeathed for the improvement of the city of Bath, as were well given, after the payments thereout directed, be paid to the defendant the clerk to the commissioners for the improvement of the city of Bath. Again, in Paice v. The Archbishop of Canterbury, (q) Mary Wilks gave the remainder of her different bequests to the Arch- bishops of Canterbury and York for the time being, in trust for charitable purposes, and bequeathed her house in Grosvenor Square, and all her property in London, to be sold ; and after payment of a mortgage, the monies arising from the sale to be applied to the general purposes of her will. The first question was, if the general residue passed to the Archbishops of Canterbury and York for charitable purposes ; and secondly, if so, whether the money pro- duced by the sale of the testatrix's leasehold house in Grosvenor Square, and freehold estate in London, were liable to any part of the debts, legacies, and costs. The Lord Chancellor decided, that as to the real estate devised to the charity and personal estate con- nected with land, as leaseholds and mortgages, the disposition was void under the statute ;(r) and, at the conclusion of his judgment, observed, the same arrangement must take place by apportionment of the charges between the funds, as in the case of Attorney General v. Winchelsea. Lastly, in the case of Curtis v. Hutton,(s] the above rule received a further confirmation. In that case, George Hutton directed his real estates to be sold, and declared that the produce of such sale, and the rents in the mean time, should constitute part of his per- (y) 14 Yes. 372. (r) 9 Geo. 2. c. 36. () 14 Ves. 537. SECT. VI.] in favour of Legatees. 649 sonal estate, and be subject to the trusts thereof : and he bequeathed his personal estate, and the monies to be produced from his real estate, to trustees, to pay debts and legacies. He then bequeathed 200Z. to the trustees of a charity school in Butt Lane, Deptford, for the purpose of purchasing lands contiguous: and he declared the trusts of the residue of his personal estate to be for such purposes as he should by deed or codicil appoint. By codicil, the testator directed the trustees to lay out the trust monies in the purchase of freehold estate in Great Britain, or in the public funds, or in other proper security, the income of the trust fund to be applied in an establishment for students in the King's College of Old Aberdeen. The bill was filed by the trustees against the widow and only daugh- ter of the testator, to have the will established, and trusts carried into execution. The answer insisted that the bequests of the resi- due to the college at Old Aberdeen of the 200Z. to the charity were void, and submitted, whether, if the former were good as to the per- sonal estate, it ought not to be postponed until after payment of debts and legacies. It was contended on their behalf, that, suppos- ing the disposition void, the. debts, legacies, and annuities must be thrown upon the fund which was effectually given to the charity ; and also upon that fund, the disposition of which failed, in the" pro- portion the respective funds bore to each other, according to the rule established in the Attorney General \. Winchelsea. The Mas- ter of the Rolls said, the rule, as contended for, was settled by many cases : And he determined also, that nothing which was the pro- duce of the testator's real estate passed under the dispositions to the charities. The reader will observe the distinction between the rule of con- tribution established by the class of cases just discussed; and the case of marshalling. By marshalling, the Court would indirectly allow the charge upon the real estate for the benefit of a charity, contrary to the Statute of Mortmain; and the practical result would, in most cases, be that of excluding the next of kin, wholly, or in part, from that portion of the residue which fails by the statute, and to which by law they have an equal right with legatees, to whom legacies are effectually given. On the other hand, the Court, in adopting the rule of contribution before stated, considers the equi- ties of the next of kin and the charities equal, and therefore directs a rateable contribution from each toward the payment of debts and legacies. SECT. VII. The mode in which equitable assets are distributed among legatees. When assets are marshalled in favour of a legatee, the personalty having been wholly or in part applied in payment of a specialty debt, we have seen that the legatee may resort to the real estate to the amount of the personalty applied in satisfaction of the specialty debt ; and in such case, if there are several legatees, they will be paid pari passu; and if the fund be insufficient to satisfy the whole of their respective legacies, each legatee must abate in proportion to the amount of his legacy. But suppose the case is not one of marshalling, there being but one fund for the payment of all claim- 650 Marshalling of Assets [Cn. XV. ants ; as, for example, where there are not any personal assets, and the real estate is either devised upon trust to pay, or only charged with the payment of debts and legacies ; in such case the assets are equitable, and it remains to consider in the present section, the mode in which such equitable assets are distributed among creditors and legatees. It maybe proper in this place, while mentioning equitable assets, to premise, that before the statute of 3. Will fy Mary, c. 14. a spe- cialty creditor had not at Common law any remedy for the recovery of his debt against a devise of the real estate for the payment of debts, (f) but he was obliged to resort to the assistance of a court of equity. The estate, therefore, thus devised was considered equita- ble assets. By the statute above mentioned, devises of real estate were made void against specialty creditors, their real and personal representatives ; in favour of whom remedies were given by the sta- tute against the heir and devisee, without the aid of a court of equity. In this act, however, there is a proviso excepting out of its operation devises of the real estate for the payment of debts, or portions for children under articles or settlement before marriage ; so that such devises for payment of debts and portions, continue now, as they were' before the statute, subject to equitable jurisdiction; and con- sequently real estates thus devised are assets distributable upon the principle of the Court, that equality is equity. It is now clearly settled, that real estate devised upon trust to pay, or merely charg- ed^) with the payment of debts, and although descending(x) upon the heir thus charged, are equitable assets, and distributable, pari passu, among creditors, whether by specialty or simple contract. Thus in the case of Plunket v. Penson,(y) Penson the testator, who was cestui que trust of a real estate, mortgaged it in fee, and being entitled to the equity of redemption, devised the estate to his son and his heirs, subject to the payment of debts, annuities, and legacies, and died indebted by bond and simple contract. The questions were, whether the assets of the testator Av.ere legal or equitable 9 and whether the simple contract creditors were to come in pari passu with the plaintiff, the bond creditor, or whether the bond creditor should be paid in course of administration. It was insisted for the simple contract creditors, that the devise to an heir of an estate charged with debts was the same thing as devising it in trust to him for the payment of debts; that they were equitable assets, and all creditors entitled to come in pari passti: that the bond creditor could not recover at law, because the testator, who was obligor, had not the legal estate, and the estate was in mort- gage, so that he was obliged to come into a court of equity for a satisfaction. Lord Hardwicke decided, that the assets were equit- able, and distributable among the creditors, without any distinction as to priority ; and he directed an account of the testator's personal estate to be applied in payment of his debts, in a course of adminis- tration ; and if that should not be sufficient, then an account of the rents and profits of his real estate to be applied in payment of the debts not satisfied by the personal estate, pari passu. And if the (0 Plunket v. Penson, 2-Atk. 291. (it) Bailey v. JZfcins, 7 Ves. 319. (x) Hargrove v. Tindal, 1 Bra C. C. 136. note. (y) 2 Atk. 290. SECT. VII.] in favour of Legatees. 651 personal estate, and the rents and profits of the real should not be sufficient to pay the debts, it was ordered, with the consent of the mortgages, that the real estate should be sold, and the money, after payment of the mortgages, applied in discharge of what should be remaining due to the other creditors of the testator pari passu. And that if any of the creditors by specialty should have exhausted any part of the personal estate in satisfaction of their debts, they were not to receive any further satisfaction out of the real estate, until the other creditors should be made up thereout equal to them.(z) But this equality of distribution is confined to those only, whose equities are equal, as to creditors among themselves ; and is not ex- tended to legatees jointly with creditors; for the latter will be pre- ferred to the former ; and this, although the trust be for the payment of debts and legacies, or although the real estate be charged with the payment of both. There is, indeed, an anonymous case in V&r- non,(a) the decision in which directed that the debts and legacies should be paid in proportion ; as the assets were equitable ; there are also dicta in other cases(fc) corresponding with that direction. There are two cases, however, determined in favour of the priority of creditors, viz. Sir John Bowie's case,(c) determined upon a re- hearing by Lord JVottingham, in which he reversed the decree of Lord Keeper Bridgman in favour of an indiscriminate distribution among the creditors and legatees ; and declared his opinion, " that in the case of trust for the payment of debts and legacies, the debts ought to be preferred and satisfied, before the legatees should have the benefit of the trusts." Lord Harcourt also pronounced a similar decree in the case of "Petre v. Bruen.(d) There, a testator before the Statute of Fraudu- lent Devises, devised a freehold estate to his second son in fee, sub- ject to the payment of his debts, and a legacy of 500Z. The question being, whether the debts should be preferred to the legacy 7 Lord Harcourt said, he would expound the testator's meaning, as it ought to be, to pay his debts before he was charitable, and therefore de- creed the debts to be first paid.(e) (z) See also Silk v. Prime, 1 Bro. C. C. 138. note. Bailey v. Ekim, 7 Ves. 319. Shifihard v. Lutnvidge, 8 Ves. 26. Clay v. Willis, 1 Barn, and Cress. 364. and the cases cited in the judgments. (a) 2 Vol. 133. (A) 2 Vern. 405. 2 P. Will. 551. (c) Cited by Lord Com. Hutchins in Greaves v. Powell, 2 Vern. 248. (rf) Stated in Walker v. Meager, 2 P. Will. 551. (e) See also Kidney v. Coussmaker, 12 Ves. 154. per Sir William Grant. Walk- er v. Meager, Moseley Rep. 204. 2 P. Will. 551. Maylen v. Hoofier, Ca?. Temp. Hard. 206. END OF VOL. A rln r\ '