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 government" ib. 
 
 SECT. XIV. Legacies to "servants" 121 
 
 1 Who entitled under the description; and ib. 
 
 2. Ofparol evidence in this case ib. 
 
 SECT. XV. Of the periods when the persons described by 
 the terms " family" or " next of kin," c. 
 must be in esse to take under the descrip- 
 tions 122 
 1 . When at the date of the will 123 
 2. When at the death of the testator ; and ib. 
 3. When at the happening of an event subsequently to 
 
 the testator's decease - 124 
 
 SECT. XVI. When legatees take per capita, or per stirpes, 
 
 or per capita et stirpes 126 
 
 1 . When per capita i b . 
 
 VOL. i. B
 
 K CONTENTS. 
 
 SECT. XVI. When legatees take per capita, &c. continued. 
 
 2. When per stirpes ; and 128 
 
 3. When per capita et stirpes 130 
 
 SECT. XVII. Effect of mistakes in the names of legatees 131 
 1 . When error in, or omission of name ivill be rectifi- 
 ed by the description of the person or the context 
 of the will - ib. 
 
 2. When mistake in name corrected by parol evidence 133 
 
 SECT. XVIII. Effect of mistakes in the descriptions tf lega- 
 tees ; and the admission of parol evidence in 
 those cases 134 
 
 1. When error in description rectified by the name ib. 
 2. When such error is occasioned by fraud it will 
 
 avoid the bequest - 1 36 
 
 3. When error in description corrected by parol evi- 
 dence, and when such evidence is inadmissible 1 37 
 4. When the evidence is insufficient, and the bequest 
 
 void for uncertainty ; and - 139 
 
 5. When that evidence is insufficient, and the legacy 
 
 established - - - 141 
 
 SECT. XIX. Consequences of imperfect descriptions of. or 
 imperfect references to, legatees apparent in 
 wills, and of the admission of parol evidence 
 in these cases 146 
 
 1. Where a blank is left for a Christian name 147 
 
 2. Where a blank is left for the whole name - ib. 
 
 3. When only the initials of a name are written 
 
 CHAPTER TIL 
 
 Of Specific Legacies 149 
 
 SECT. I. What are specific legacies, and the privileges and 
 
 disadvantages attending them ib. 
 
 SECT. II. Specific legacies of individual personal chattels 150 
 
 SECT. III. Specific legacies of, and relating to, real chat- 
 tels and estates 151 
 1. Of real Chattels ib. 
 2. Of rents and annuities out of real chattels and es- 
 tates - 1 52 
 3. Of gross sums of money out of them; and - 153 
 4. Of the produce from their sales 1 54
 
 CONTENTS. xi 
 
 SECT. IV. Specific legacies of sums of money and personal 
 
 annuities - 155 
 
 1 . Of money ib . 
 
 2. Of annuities - 156 
 
 SECT. V. Specific legacies of stock or annuities in public 
 
 funds - 157 
 
 1 . Effect of " my" preceding the word " stock" "ib. 
 
 2. Bequests of stock generally - ib. 
 
 3. Construction when stock is bequeathed generally 
 
 in a particular fund - 159 
 
 4. when expressly out of particular stock 166 
 
 5. when not expressly out of stock, but stock 
 
 is mentioned as the fund in which the money 
 bequeathed is, or is supposed to be invested - 169 
 
 S KCT. VI. Colonial property 171 
 
 Legacies of when and when not specific ib. 
 
 SECT. VII. Legacies of debts 172 
 
 1. When specific - 173 
 
 2. When not - 178 
 
 SECT. VIII. Bequests of general personal estate - 184 
 
 1. When specific - ib. 
 
 2. When not - - - 185 
 
 CHAPTER IV. 
 
 Rights of Specific Legatees under the words of the Will, 
 and against the Executors ; and the Rights of Spe- 
 cific legatees of Goods and Chattels in remainder 
 against specific Legatees for life - 187 
 
 SECT. I. What personal estate will pass to the specific le- 
 gatees under the words of the will - 188 
 
 1. Considering when the words refer to the date of 
 
 the will, and when to the death of the testator ib. 
 
 2. What will pass by the words goods, household 
 goods, personal estate, property, and things, 
 when referred to as being in a particular place ; 
 and - 189 
 
 3. When the words goods, fyc. will be restrained to 
 such only as are ejusdem generis with those spe- 
 cified in the will, and when not - * - 197 
 
 4. Construction of the words household furniture, 
 household stuff, chattels, live and dead stock, 
 stock upon a farm, effects, utensils, money, se- 
 curities for money, medals, debts, linen and 
 clothes, farm and plate - 203
 
 xii CONTENTS. 
 
 SECT. II. What will pass a specific bequest of personal es- 
 tate in the colonies - 217 
 
 SECT. III. Of the title of a specific legatee to an excess of 
 the fund whether of capital or profits accru- 
 ed between the date of the will and the death 
 of the testator 218 
 
 SECT. IV. Of mistakes in regard to the subject specifically 
 
 bequeathed - 219 
 
 1. In the description of the fund, and the admissibili- 
 
 ty of extrinsic evidence - ib. 
 
 2. Of the admission of such evidence to show a testa- 
 tor's intention by explaining the sense in which 
 he used the words of the bequest ; and - 222 
 
 3. The consequences of mistakes in the calculation of 
 the specific funds when they are only given to 
 one person, and when to several persons infrac- 
 tional parts 227 
 
 SECT. V. The rights of specific legatees against the execu- 
 tors - - - 229 
 
 SECT. VI. The rights of specific legatees of goods and chat- 
 tels in remainder against the preceding 
 tenants for life 231 
 
 1. When an inventory or security will be required; 
 
 and - ib. 
 
 2. The rights where a tenant for life of a lease surren- 
 ders the old and takes anew one ; and - ib. 
 
 3. Of contribution on the payment of fines 232 
 
 CHAPTER V. 
 
 Of the Ademption and Abatement of Specific Legacies 237 
 
 SECT. I. Of the ademption of specific legacies ib. 
 
 1. Of stock - .... 238 
 
 2. Of debts or securities - 242 
 
 3 - Of goods, Sfc. .... 245 
 
 4. Of partnership shares ... 248 
 
 . Of leases for years and for lives - - 249 
 
 SECT. II. Abatement of specific legacies 253 
 
 1. Rule upon that subject - - ib. 
 
 to abatement amongst several legatees of the 
 
 same specific fund; and - . - ib.
 
 CONTENTS. xiii 
 
 SECT. II. Abatement of specific legacies continued. 
 
 3. Of abatement of specific devisees of freehold estates 
 with specific legatees of chattels, under which 
 head are considered estates pour autre vie 254 
 
 4. Jis to abatement of legacies in part specific, and in 
 
 part general - 255 
 
 CHAPTER VI. 
 
 Of General Legacies, and their Ademption, and of Parol 
 
 Evidence in certain cases on that subject . 256 
 
 SECT. I. Of the ademption of legacies given as portions to 
 
 children by their father 257 
 
 1. When the children are legitimate - ib. 
 
 2. Exceptions to the presumption of ademption in 
 
 cases under the last article - 261 
 
 SECT. II. Of the ademption of legacies by subsequent ad- 
 vancement when the legatees are consider- 
 ed strangers to the testator, and the legacies 
 not portions 265 
 
 1. When the legacies are mere bounties ; and of be- 
 quests to natural children by their putative fa- 
 ther - - 266 
 2. When a testator has placed himself in loco pa- 
 
 rentis - 268 
 
 3 & 4. Of the admissibility of Parol Evidence onthe 
 last subject ; as also to prove an intention to 
 adeem when the testator is, or is considered to 
 be, a stranger to the legatee 270 
 
 5. Of the sufficiency and insufficiency of such evi- 
 dence when admissible - - - 278 
 6. And the different degrees of importance attached to 
 parol evidence, in detailing declarations of testa- 
 tors in regard to the times when, and to whom 
 they were made - 282 
 
 CHAPTER VII. 
 
 General Legacies and their Abatement. The Equity of 
 Legatees to follow the Assets. And the Refunding 
 of Legacies 283
 
 xiv CONTENTS. 
 
 
 SECT. I. Of the abatement of general legacies 284 
 
 I . What legacies to abate ib. 
 
 2. Heir's liability in respect of lapsed interests in 
 
 lands accruing to him - - 285 
 
 3. fis to claims of particular general legatees to a 
 priority of payment to others, so as to be exempt 
 from abating: considering 286 
 
 1. Legacies given as mere bounties 287 
 
 2. Effect of a testator's declarations : and of his in- 
 tentions otherwise shown to give a preference; 
 and - - 292 
 
 3. When a legacy is founded upon a valuable con- 
 sideration - - 297 
 4. Of the abatement of general legacies of stock 298 
 
 SECT. II. Rights of legatees to follow the assets when dis- 
 posed of by'the executor, and the produce 
 wasted . - ib. 
 
 1. Power of executors to sell and pledge the estate 299 
 2. Exceptions to that power - 302 
 
 3. Effect of acquiescence upon the right of legatees to 
 follow the assets - 313 
 
 SECT. III. Of the refunding legacies 314 
 
 1. M the suit of executors - - 315 
 
 2. At the suit of creditors ; and - 316 
 
 3. jit the suit of unsatisfied legatees - ib. 
 
 4. As to interest payable on the sum refunded - 318 
 
 CHAPTER VIII. 
 
 Of Lapsed Legacies 319 
 
 SECT. I, Of the lapse of an individual legacy by the death 
 
 of the legatee during the life of the testator 320 
 
 1. When the bequest lapses, although made to the le- 
 gatee, his executors and administrators or per- 
 sonal representatives - - ib. 
 
 2. Of the admissibility of parol evidence of the tes- 
 tator's intention that the executors, administra- 
 tors, or personal representatives were meant to 
 take if the legatee died before him - 322 
 
 3. Exceptions to the rule of lapse when the legacy is 
 given to the executors, administrators, or perso- 
 nal representatives of the legatee - 323 
 
 SECT. II. Of lapse (where the person named in the will is 
 debtor to the testator) depending upon the
 
 CONTENTS. xv 
 
 circumstance whether the benefit be given 
 as a legacy, or intended in the nature of a 
 release - - 325 
 
 SECT. III. Effect of the death of legatees before the testa- 
 tor upon the interests of persons in remain- 
 der, when the legacies are limited over upon 
 the happening of particular events - 327 
 
 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 ib. 
 
 2. Of lapse, when the event upon which a legacy is 
 given over happens in the testator's lifetime, 
 and the legatee dies before him - 328 
 
 3. Of lapse, when the legatee dies before the testator, 
 and prior to the event happening upon which the 
 legacy is limited to another person - 329 
 
 SECT. IV. Of lapse of legacies given to persons in joint-te- 
 nancy, or as tenants in common 330 
 1. In joint tenancy ib. 
 2. As tenants in common ; and - - 331 
 1. When given to children - 333 
 2. When with a limitation over to survivors ; 
 
 and - - - ib. 
 
 3. Of lapse of accrued shares -336 
 
 SECT. V. Of lapsed legacies when the bequests are made 
 
 under powers 337 
 
 SECT. VI. Of the persons entitled to lapsed interests 338 
 
 1. When the subjects are general legacies or personal 
 
 residues - - ib. 
 
 2. When they are legacies payable out of lands, or 
 
 the proceeds of lands directed to be sold - 340 
 
 CHAPTER IX. 
 Of the Conversion of Real into Personal Estate 341 
 
 SECT. I. Right of the heir or devisee to the surplus of real 
 estate subjected to, charged or devised for 
 particular purposes, as well where a sale is, 
 as where it is not expressly directed, and 
 their respective rights to lapsed interests 343
 
 xvi CONTENTS. 
 
 SECT. I. Right of the heir or devisee, &c. continued. 
 
 1. When the devisee is entitled to the surplus - 343 
 
 2. When the heir is entitled to it; and - 348 
 
 3. Of their respective titles to lapsed interests - 351 
 
 SECT. II. Right of the residuary devisees or legatees, to 
 the net produce from a sale of lands under 
 the residuary clause - 352 
 
 1. When the net proceeds will not pass, but result to 
 
 the heir; and - ib. 
 
 FIRST. When the residuary bequest isinthe 
 
 same will that devises the real estate - ib. 
 SECOND. When it is contained in a codicil 355 
 2. When the net proceeds will pass as personal estate 
 
 under the residuary clause - 356 
 
 SECT. III. Right of the testator's executors and next of kin, 
 
 to the net produce from the sale of lands 
 1. Of his executors - ib. 
 
 2. Of his next of kin - 359 
 
 SECT. IV. Right of the heir or of the devisees of proceeds 
 
 from a sale of land to lapsed interests 361 
 
 1. Where the proceeds are given distinct from the per- 
 sonal estate - 362 
 2. Where the, proceeds are given and blended with 
 
 the personal estate - 363 
 
 3. Titleof surviving devisees to real proceeds lapsed by 
 the death of one or more of their companions; 
 and - - 367 
 
 FIRST. When they originally take as joint- 
 tenants ib. 
 SECOND. When as tenants in common - ib. 
 
 SECT. V. Right of personal representatives of devisee or 
 legatee of real proceeds, in preference to tes- 
 tator's heir - 368 
 
 SECT. VI. When produce from sale of land, resulting to tes- 
 tator's heir is to be considered land or mo- 
 ney - 369 
 1. When there is no disposition of the surplus 370 
 2. When the residuary real proceeds are disposed of, 
 
 and part of them lapse and result to the heir ib. 
 3. Election ... - 372 
 
 SECT. VI. When the devisees of the real produce take it as 
 
 land or money ib.
 
 CONTENTS. 
 
 CHAPTER X. 
 
 Of vested Legacies, payable out of the Personal Estate 373 
 
 SECT I. When the gift of a legacy is immediate) and no 
 
 time appointed for payment of it 375 
 
 SECT. II. When the gift of the legacy is immediate, and 
 Repayment of it postponed \o a future peri- 
 od, whether definite or uncertain - 376 
 1. When the legacy will be vested ib. 
 As when directed to be paid at twenty-one, 
 
 Or ib. 
 
 M the end of a particular term, Or - 376-7 
 So soon as debts are paid, Or - 377 
 
 So soon as the executors shall possess suffi- 
 cient assets, Or - ib. 
 So soon as particular lands are sold, Or ib. 
 So soon as the personal residue shall be laid 
 
 out in the purchase of lands - ib. 
 
 2. When not vested - 378 
 
 SECT. IF. Where there is no immediate express gift of the 
 legacy distinct from the time appointed for 
 its payment - 383 
 
 FIRST. When contingent from the effect of condi- 
 tional words - ib. 
 SECOND. When vested in consequence of those words 
 not having been used by testators in a con- 
 ditional sense - 387 
 1. JFhen 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 - ib. 
 2. Where the intermediate interest is not given for the 
 use or benefit of the legatee, but to another per- 
 son, - - - 392 
 During the legatees minority, Or - ib. 
 Until particular purposes are fulfilled, Or 393 
 During life ; and then - ib. 
 IN REMAINDER to the legatee - 394 
 3. Exceptions to the general rule of a remainder and 
 particular interest or estate vesting at the same 
 time, upon the intention of testators - 396 
 
 SECT, IV. Of the vesting in interest and transmissibility of 
 
 contingent executory bequests 401 
 
 VOL. I. C
 
 xviii CONTENTS. 
 
 SECT. V. Effect upon the vesting and devesting of lega- 
 cies, when they are subject to a limitation 
 over on the happening of a particular event : 
 and - 403 
 
 1. Where the gift is immediate, with a limitation 
 to "survivors" upon the death of any of the 
 legatees under twenty-one, fyc. - - ib. 
 
 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 con- 
 jecture or impracticable to perform - 404 
 
 3. Where the limitation over is, if the legatee die be- .' 
 fore receipt of the, money, or before the sale of 
 an estate - 405 
 
 4. Where the limitation over is in case of the death 
 
 of the legatee generally - 406 
 
 5. Where the limitation over is, " in case the legatee 
 die unmarried, and without having children 
 or issue" - - 412 
 
 6. When the contingencies upon which legacies are 
 limited over, tvere held not to have happened, 
 so as to divest the interest first given ; and 414 
 
 7. Construction of the words "payable," 8/-c. in re- 
 ference to the event introducing a limitation 
 over of legacies or portions, as, if any of the 
 legatees die before their shares become payable, 
 or payable, assignable, and transferable 417 
 
 FIRST Of Legacies ib. 
 
 SECOND. Of Portions - 41S 
 
 SECT. VI. Effect of powers of appointment on the vesting 
 
 and devesting of legacies and portions 420 
 
 I. Where the power is merely to ascertain the shares 
 
 each legatee is to take ib. 
 
 2. Where the gift depends upon an execution of the 
 
 power - 423 
 
 SECT. VII. As to vesting generally 425 
 
 1. Instances of vested interests determining with 
 
 the lives of the legatees, and not transmissible ib. 
 
 2. When the word "survivors" construed the same 
 
 as u others" in favour of vesting 426 
 
 3. Where a legacy is directed to be sunk in the pur- 
 chase of an annuity - _ 427 
 
 4. When a legacy is given generally, "to be at the 
 
 disposal of the legatee" - 429 
 
 5. Where a legacy is expressed to be given to answer 
 a particular purpose for the benefit of the lega- 
 tee, which purpose is disappointed and cannot 
 take effect - - - 430
 
 CONTENTS. xix 
 
 CHAPTER XI. 
 
 Of vested Legacies payable out of Real Estate 431 
 
 SECT. I. Where the gift of a legacy or portion is immedi- 
 ate.! and the payment postponed until the le- 
 gatee attains twenty one,, or marries - - 432 
 Legacy contingent so far as it affects the 
 real estate, and vested so far as regards 
 the personal estate - ib. 
 
 SECT. II. When payment of the legacy or portion is not 
 postponed on account of the age of the lega- 
 tee or child, but in regard to the conveni- 
 ence of the person., or the circumstances of 
 the estate charged with it - 436 
 
 Vested, although the legatee or child die be- 
 fore the time of payment - 437 
 
 CHAPTER XII. 
 
 Of charging Legacies upon the Real Estate, and of Exone- 
 ration 445 
 
 SECT. I. When legacies are given solely out of the real es- 
 tate . 446 
 
 SECT. II. When legacies will, and will not, be considered 
 
 effectual charges upon the real esaate ; and 448 
 1. Where the legacies were held to be charges on the 
 
 real property - - ib. 
 
 2. When not so considered - 454 
 
 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 - 456 
 
 SECT. III. Of exoneration - 463 
 
 1 . When the personal estate is first liable to pay debts 
 
 and legacies ib. 
 
 2. When the real estate will be considered the primary 
 
 fund for those purposes - 474 
 
 3. As to the admission of parol evidence of the testa- 
 tor's intention - 485 
 
 4.- When the personal estate is exonerated from parti- 
 cular debts and legacies, and not from debts 
 and legacies generally - ib.
 
 xx CONTENTS. 
 
 SECT. III. Of exoneration continued. 
 
 5 . When the personal estate is not exonerated frompar- 
 
 tlcular debts and legacies - 493 
 
 And as to debts not of the testator's own con- 
 tracting - ib. 
 
 C. Where a part of the personal estate is specifically 
 appropriated to pay legacies in exoneration of 
 the remainder - - 497 
 
 7. As to the exemption of the personal estate from 
 payment of debts and legacies, where the lega- 
 tee dies before the testator - 498 
 
 8. With respect to the liability of the real estate to 
 debts and legacies, when the money has been 
 once raised, but misapplied ib. 
 
 CHAPTER XIII. 
 Of legacies upon condition 499 
 
 SECT. I. Conditions precedent and subsequent 501 
 1. When the conditions are precedent, and distin- 
 guished from limitations - ib. 
 2. When such conditions are impossible - 505 
 3. When illegal, and of precedent conditions in re- 
 straint of marriage - 507 
 4. Conditions subsequent - 513 
 
 SECT. II. Performance of conditions .. - 514 
 
 1. When the conditions are precedent - ib. 
 
 A. Where the performance is not within the 
 
 time mentioned in the condition - ib. 
 
 B. From what period the time for perform- 
 ance is to be computed 518 
 
 C. When the legatee has the whole of life to 
 
 perform the condition - 519 
 
 D. Right of executors to perform the condi- 
 tion - - 520 
 
 E. Where legacies are given to executors or 
 
 trustees - 521 
 
 2. When the conditions are subsequent - 523 
 
 A. Where they are impossible ib. 
 
 B. Where they are repugnant and illegal - 524 
 
 C. When they are not to dispute the validity 
 
 of wills or bequests - - 530 
 
 D. Where the time of payment of legacy, and 
 
 the condition to devest it are inconsistent 531 
 3. When the conditions are in restraint of marriage, 
 
 whether precedent or subsequent - ib.
 
 CONTENTS. xxi 
 
 SECT. II. Performance of conditions continued. 
 
 A. Where the conditions require marriages 
 
 with consent ib. 
 
 (A. 1.) Jit what time consent ought to be 
 
 obtained - - 532 
 
 (A. 2.) And from whom - 534 
 
 (A. 3.) What will be a sufficient consent 539 
 FIRST. Where the consent is ge- 
 neral, i. e. to marry any per- 
 son ib. 
 SECOND. As to retracting con- 
 sent - 541 
 THIRD. Conditional assents 542 
 FOURTH. Importance of lega- 
 tee's supposition that there is 
 no consent, when it is judicial- 
 ly considered as given - 544 
 FIFTH. Of implied consents ib. 
 SIXTH. Effect of consents by 
 testators themselves to marri- 
 ages, required by their wills to 
 be had with consent after their 
 deaths - 547 
 (A. 4.) Whether conditions requiring 
 consent are fully performed by 
 first marriages with consent 549 
 (A. 5.) Whether such conditions will be 
 confined to the periods appoint- 
 ed for payment of the legacies 550 
 [a.] And the effect of marriage 
 without consent, when the le- 
 gatee afterwards survives 
 the time when the legacy is 
 payable - 551 
 (A. C.) As to conditions requiring mar- 
 riages with consent being 
 considered in terrorem - 553 
 B. Conditions requiring marriages with per- 
 sons bearing the surnames of testators - 558 
 
 SECT. III. Respecting forfeiture generally by non-com- 
 pliance with testamentary conditions - 562 
 
 SECT. IV. Necessity of giving notice of conditions - 563 
 
 1 . In regard to personal bequests - ib. 
 
 2. When the devise is of real estate - ib.
 
 xxii CONTENTS. 
 
 CHAPTER XIV. 
 
 Of the assent of Executors to, and the payment and appro- 
 priation of Legacies - 564 
 
 SECT. I. Of the executor's assent - 565 
 1. The necessity and effect of it - ib. 
 2. Nature of legatee's interest prior to assent - 566 
 3. Consequences of legatee's taking his legacy with- 
 out assent - 567 
 4. JFJien and by whom assent may be given - ib. 
 5. What will be a good assent - 568 
 A. Where the absolute interest is given to the 
 
 legatee - - ib. 
 B. Where the fund is given in succession 570 
 C. Where a partial interest is given to an exe- 
 cutor - - ib. 
 6. Presumptive assent - - 573 
 7. Conditional assent ib. 
 8. The retracting of assent - - 574 
 
 SECT. II. Of the payment of legacies ib. 
 
 1. Out of what fund - ib. 
 
 2. Whether in sterling money or in currency - ib. 
 
 3 By whom the exchange is to be paid - - 577 
 
 4. Jit what time legacies to be paid - 579 
 
 A. When the bequest is of a gross sum of mo- 
 ney - ib. 
 B. When of an annuity - .588 
 C. Of apportionment of annuities and divi- 
 dends in the nature thereof - 589 
 5. To whom to be paid - ib. 
 A. When legatee is an infant - ib. 
 B. When a married woman - 595 
 C. When a lunatic - 599 
 D. When a bankrupt 600 
 E. When legatee abroad, and not heard of 601 
 6. As to deductions and retainer under the Stamp Acts ib. 
 A. In respect of what legacies liable, and the 
 
 quantum - ib. 
 
 B. By whom to be paid or retained - 605 
 
 C. At what time payable, <^c. - 606 
 
 D. Retainer by executor - 607 
 
 1. For his own benefit ib. 
 
 2. For the benefit of another - ib. 
 
 7. Retainer by executors generally by way of sett off 
 
 against legatee's debt - 608 
 
 8. Presumptive payment of legacies - 609
 
 CONTENTS. xxiii 
 
 SECT. III. Of the appropriation of legacies of money or 
 
 stock - - - 611 
 
 1. Legatee's right to appropriation - ib. 
 
 2. Of appropriation in pais - - ib. 
 
 3. Of the effects of appropriation on the fund itself 612 
 
 CHAPTER XV. 
 Of marshalling Assets in favour of Legatees - 620 
 
 SECT. I. The marshalling of assets in favour of legatees 622 
 I. Where the real estate is devised subject to payment 
 
 of debts - ib. 
 
 2. When subject to a charge of one or more legacies 624 
 3. When charged with both debts and legacies - 626 
 
 SECT. II. The marshalling of assets in favour of legatees, 
 where the real estate is not charged by the 
 will with debts or legacies, but there is a 
 specific lien on the real estate - 627 
 
 1. Where that real estate is devised - ib. 
 
 2. Where it descends - - 629 
 
 SECT. III. The marshalling of assets in favour of legatees, 
 where the real estate is neither charged 
 with debts nor legacies, nor subject to a 
 specific lien, but there is merely a general 
 lien on the real estate, which descends to 
 the heir - 635 
 
 SECT. IV. Exception, where the estate is devised ; for 
 where the real estate is neither charged with 
 debts nor legacies, nor subject to a specific 
 lietij but there is only a. general lien, and the 
 real estate is specifically devised to a stran- 
 ger or to the heir taking as a devisee, assets 
 are not marshalled in favour of a general le- 
 gatee ; but the rule appears otherwise in 
 favour of a specific legatee, s. q. - 636 
 
 . 
 
 SECT. V. The extent to which equity will permit lega- 
 tees to stand in the place of specialty credi- 
 tors - - - - - 639
 
 xxiv CONTENTS. 
 
 SECT. VI. The consideration of those legatees for whom a 
 
 Court of Equity will not marshal assets 641 
 
 1 . Where the legatees, at the time of their legacies be- 
 coming due, have not an established claim, &c. ib. 
 2. Wnere the legacies are given to charities - 643 
 
 3. The rule respecting contribution between charities 
 and the next of kin, where the residue is given 
 to charities, and part of the disposition, being 
 within the Statute of Mortmain, fails for the 
 benefit of the next of kin - -646 
 
 SECT. VII. The mode in which equitable assets are distri- 
 buted among legatees 649
 
 A TREATISE 
 
 ON 
 
 THE LAW OF LEGACIES. 
 
 CHAPTER I. 
 
 Of Donations mortis causa. 
 
 PROPER Legacies may be classed under two heads ; viz. Gene- 
 ral and Specific. The former may be denned the testamentary gift 
 of personal estate as of goods and chattels, or money generally. 
 The latter, the bequest of particular things distinguished from all 
 others of the same kind, as of money in a bag, a piece of plate, or 
 a term of years. There is an improper kind of Legacy, termed a 
 Donatio mortis causa, which it is proposed to consider in the 
 present chapter. The subject will be discussed under the following 
 divisions : 
 
 SECT. I. The description and nature of a. Donatio mortis causa. 
 
 SECT. II. The circumstances required to constitute a Donatio 
 
 mortis causa. 
 
 l.Jls to the gift of the Donee. 
 .~The delivery of Possession ; and, 
 
 3. Of Evidence admissible to prove the gift and the suffici- 
 ency of such evidence. 
 
 SECT. III. What will defeat the Donation when originally good. 
 
 I. The description and nature of a Donatio mortis causa. 
 
 Swinburne(a) on the authority of the Digest(b) notices three 
 kinds of Donations mortis causa. 
 
 First, Where a person, not terrified by the apprehension of any 
 present peril, but moved by the general consideration of man's 'mor- 
 tality, makes a gift. 
 
 Secondly, Where a person moved by imminent danger, gives in 
 such a manner, that the subject is immediately made his to whom 
 it is given. 
 
 And thirdly, Where a person, being in peril of death, gives some- 
 thing, yet not so that it should be presently his who received it, 
 but in case only the giver die. 
 
 It appears upon consideration of the before mentioned definitions, 
 that the third alone is the proper donation mortis causa ; the other 
 two being nothing more than pure irrevocable gifts inter vivos. 
 This also is apparent from the definition of a donation mortis causa, 
 given by Justinian after the contest which' prevailed on the subject 
 had subsided : " Mortis causa donatio est, qute propter mortis fit 
 suspicionem, cum quis ita donat, ut si quid humanitus ei contigisset, 
 haberet is qui accepit, sin autem supervixisset is, qui donavit, reci- 
 
 (c) Swinb. part I. sect. 7. (6) Julianus t lib. 17. Digest. 
 
 VOL. r. D
 
 26 Donations mortis causa. [Cri. 1. 
 
 peret; vel si eum donationis ptenituisset, aut prior decesserit is, 
 cui donatum sit. Use mortis causa donationes ad exemplum lega- 
 torum redact sunt per omnia : nam cum prudentibus ambiguum 
 fuerat utrum donationis an legati instar earn obtinere oporteret, 
 et utriusque causa3 quoedam habebat insignia et alii ad aliud genus 
 earn retrahe.bant ; a nobis constitutum est; ut per omnia fere legatis 
 connumeretur, et sic procedat quemadmodum nostra constitutio 
 earn formavit, et in summa mortis causa donatio est, cum magis 
 sequis velit habere qutim eum, cui donat, magisque eum, cui donat, 
 quim hseredem suum."(c) 
 
 With respect to the nature of a donatio mortis causa, this kind of 
 amphibious gift so far resembles a legacy that it is ambulatory and 
 incomplete during the donor's life ; it is therefore revocable by 
 him,(rf) and subject to his debts upon a deficiency of assets. (e) It 
 is also liable to the duties imposed upon legacies by the express 
 provision of the stat. 36 Geo. 3. c. 52. 7. But in the following 
 particulars a donation mortis causa differs from a legacy. It is not 
 within the jurisdiction of the Ecclesiastical Court, nor is it to be 
 possessed by the executor ; so that a court of common law has pro- 
 hibited his proceeding in the Ecclesiastical Court, to recover the 
 subject from the donee. (/) Neither does the donation regularly 
 fall within an administration, nor require any act by the executors 
 to constitute a title in the donee. (g) The reason is, that the 
 property being vested in the donee by delivery of the subject, liable 
 only to be defeated by the donor's revocation, or recovery or escape 
 from the peril of death ; when none of those events happen, the 
 title of the donee is derived from the donor during his life, and not 
 by a testamentary act. 
 
 II. The circumstances required for the constitution of a donatio 
 mortis causa are, as before appears : 
 
 1. That the gift be made by the donor in peril of death, or dur- 
 ing his last illness, and to take effect in case only the giver die. (h) 
 
 If then the gift have no relation to the death of the donor, or 
 having such a reference it be general, that is, to his decease at any 
 time, he being at the period of the donation in no danger of death, 
 nor afflicted with any disorder which proved fatal to him, such gii't 
 cannot? be supported as a donation mortis causa. 
 
 Thus in Tate v. Hilbert,(i) A. having subsequently to his will sent 
 for M. to his house, and observed that he was worth more than he 
 thought of, and that his fortune was too much for one person, and 
 therefore he would give away more than he had disposed of by his 
 will, desired J. to give him out of his desk several bonds and secu- 
 rities to the amount of 3000Z. and upwards, which he cancelled. He 
 then told M. he would give her 200 J. and desired J. to give him a 
 check out of the drawer of his desk ; which he having done, A. im- 
 mediately filled it up, and signed and gave it to M.', A. at the same 
 
 (c\ Justin. Inst. tit. 7. De Donationibus. (rf) 7 Taunt. 231. 
 
 (f) Smith v. Casen, mentioned by the reporter at the end of Drury v. Smith, 
 1 P. Will. 406. 2 Ves. sen. 434. (/) Thompson v. Hodgson, 2 Stra. 777. 
 
 (e-) 2 Ves. sen. 439. 2 Ve.s. jun. 120. 1 P. Will. 441. 
 
 (A) Justin. Inst. tit. 7. De Don. 4 Burns's Eccl. Law. 110. Pre. ch. 269. 3. P. 
 Will. 357. 4 Bro. C. C. 290. 3 Madd. 185. 
 
 (0 2 Ves. jun. Ill, 4 Bro. C. C. 286. S. C.
 
 SECT. II.] Donations mortis causa. 27 
 
 time gave J. a promissory note for 1000/. It was determined, upon 
 questions whether the gifts of the check and note could be support- 
 ed as donations moi'tis causa, that they could not. One of the rea- 
 sons for this decision was, that the gifts of them were not made to 
 take effect infuturo with a view to the donor's death, but in prce- 
 senti and irrevocably. 
 
 But it is not necessary for the donor to expressly declare that the 
 gift was made conditionally, viz. to take effect only in the event of 
 his death ; for if the gift be made during his last illness, the law in- 
 fers the condition that the donee is only to hold the subject in case 
 the donor die of that indisposition. 
 
 Accordingly in Gardiner v. Parker,(k) A. being confined to his 
 bed, gave to B. a bond for 1800?. two days before his death, in the 
 presence of a servant, saying, " There take that and keep it." The 
 question was between the donee and executors of A. And Sir John 
 Leach, V. C. decided in favour of the donation, observing, that the 
 doubt originated in the donor not having expressed that the bond 
 was to be returned if he recovered ; but that the bond being given 
 in the extremity of sickness, and in contemplation of death, the in- 
 tention of the donor was to be inferred that the bond should be hoi- 
 den as a gift only in case of his death ; and that if a gift be made in 
 the expectation of death, there is an implied condition that it is to 
 be held only in the happening of that event. 
 
 So also in a prior case of Law son v. Lawson,(l) the testator being 
 languishing on his death bed, delivered to his wife a purse of gold, 
 containing 100 guineas, and bid her apply it to no other use but her 
 own, and the transaction was supported as a donation mortis causa. 
 
 It is no objection -to this species of donation, that the gift was not 
 made to the donee free from incumbrance, but charged with the per- 
 formance of a particular purpose. To this effect, Eyre, Lord Com- 
 missioner, expressed himself in the case of Blount v. Burrow,(m] as 
 reported by Mr. Brown, and there seems to be no reason why the 
 donee should not have the surplus money, if any remained after the 
 special purpose was answered. 
 
 2. The next requisite to constitute a donation mortis causa is ac- 
 tual delivery of the subject to or for the donee in cases where such 
 a delivery can be made ; it is a consequence of that proposition. 
 
 That if the delivery be. incomplete, and only rest in the intention 
 of the donor, the proposed donation cannot be supported. 
 
 Thus in Bryson v. Brownrigg,(n] A. 'by his will, dated the 4th of 
 December, 1776, disposed of all his real and personal estates in trust 
 for his wife, Mice, and his children, Esther and Mary, and appoint- 
 ed his wife and the trustees executors. The testator died in 1788, 
 leaving his two daughters, his only children, both above the age of 
 twenty-one, and married ; Mary died ; and the bill was filed by her 
 husband and administrator and their only child, against the testator's 
 widow, Alice Brmvnrigg, and the surviving trustee, and the testator's 
 .other daughter, Esther, and her husband, to have the will establish- 
 ed, and an account, &c. The answer stated a gift by the testator 
 in March, 1787, to Esther, then unmarried, of 200/. (viz.) 1001. due 
 to him by bond, and 100/. by mortgage ; sums, that according to the 
 
 (*) 3 Madd. 184 (/) 1 P. Will. 441. (iw) 4 Bro. C. C. 75. (n) 9 Ves, 1,
 
 28 Donations mortis causa. [Cu. I. 
 
 answers, were so given to her as an equivalent for 100J. which Mary 
 received under the will of her grandfather, and for another sum of 
 100Z. which Mary or her husband received from the testator upon 
 their marriage ; and the interest of such gift having been from the 
 time thereof accounted for and paid to Esther by the testator in his 
 life-time, the defendant, Alice Brownrigg, paid the principal and in- 
 terest received on the said bond and mortgage to her (Esther,) and 
 claimed to be allowed those sums, as paid to her daughter. The 
 plaintiffs disputing those payments, the defendants, Alice Brownrigg 
 and Esther, were examined upon interrogatories ; and by their exa- 
 minations stated, that the mortgage and bond were, in 1786, or early 
 in 1787, given by the testator to his daughter Esther in the follow- 
 ing manner : the testator having frequently declared his determina- 
 tion to give 200Z. to his daughter Esther, to place her upon an equa- 
 lity with his eldest daughter Mary, (who had on her marriage recei- 
 ved the like sum,) selected the two securities in question for that 
 purpose, and Alice Brownrigg, by his direction, took them out of a 
 drawer, in which they lay with other securities and papers of the 
 testator, and she by the like direction laid them distinctly and by 
 themselves in another drawer, for and as the property of Esther, then 
 a minor, to whom the same were pointed out, and were several times 
 afterwards mentioned and spoken of as her own by the testator, who, 
 in giving, and afterwards speaking of these securities to the exami- 
 nants, said, as the securities were good, the money had better remain 
 upon them until Esther should marry. At the death of the testator 
 the two securities remained by themselves, and separately from his 
 other securities, in a lower drawer of his bureau, of which Alice 
 Brownrigg always kept the key. The interest which arose on them 
 in the testator's life-time subsequently to such gift, was by his direc- 
 tion paid to Esther, as her own money ; and Alice, after the decease 
 of the testator, at the request of Esther, (who attained her age of 
 twenty-one years a few days after the testator's death) continued to 
 keep the two securities for her ; and soon after her death, at her pre- 
 vious request, viz. on the 13th of February, 1789, called in the money 
 and paid it to her husband John Croft. The master allowed the claim; 
 upon which an exception was taken to his report ; and in support of 
 the report the delivery of the securities was contended to be good 
 and effectual as donations mortis causa. But by Sir William Grant, 
 M. R. "has it ever been determined, that* the mere delivery of the x 
 security passes the interest of the money 9 A donatio mortis causa 
 has something in the nature of a legacy. But I do not see, suppos- 
 ing delivery would do, how this can be called so, shifting it from one 
 drawer to the other. It remains just where it was, except that it 
 is in a different drawer, and separated from other papers. What 
 could she have done if he chose to' make use of these securities 9 It 
 depends all upon his mental intention. This is not enough. I cannot 
 think it the mode in which that kind of property can be conveyed." 
 The exception was therefore allowed. 
 
 Another instance of imperfect delivery occurred in the case of 
 Bunn v. Markham.(o) That was an action of trover, brought to 
 recover from the defendants, who were the executors of Sir Jervase 
 
 (o) 7 Taunt 224.
 
 SECT. II.] Donations mortis causa. 29 
 
 Clifton, bart. certain India bonds, bank notes, guineas, an iron 
 chest, and the boxes and envelopes in which these securities and 
 money had been contained. The cause was tried at Guildhall, at 
 the sittings after Trinity Term, 1816, before Gibbs, C. J. The 
 evidence was, that Sir Jervase Clifton being of an advanced age, 
 and confined to his bed, and having by his will, dated in 1814, be- 
 queathed all his cash, notes, and India bonds, to his executors, to be 
 sold and invested in trust for his daughter (the wife of the defendant 
 Markham) and her children, on the 24th of March, thinking him- 
 self near his end, sent for his solicitor, (the defendant Jamsori) to 
 make a codicil to his will, whose partner Leeson attended him, and 
 prepared a codicil, by which the testator gave to the plaintiff Mary 
 Sunn, otherwise Clifton, (who had for more than thirty years coha- 
 bited with him, and was the mother of the other plaintiff) 2000Z. and 
 to his and her daughter, the plaintiff, Rebecca Clifton, the like sum 
 of 2000Z. While the solicitor was in the house, the testator taking 
 some keys from a basket which he always kept by his bed-side, de- 
 livered them to John Bunn Clifton (his son by the one, and the 
 brother of the other plaintiff,) Leeson, and a tenant named Sandby, in 
 whom he reposed great confidence, and directed them to go to an iron 
 chest in which he kept his valuables, fixed in the wall of another room 
 in his house, and to bring from it whatever property they found there. 
 They brought three parcels, and laid them on his bed, one of which 
 contained three India bonds, value 1500Z. and bank notes, together 
 of the value of 2225J. ; another contained 1100Z. in bank notes, and 
 the other 479 guineas, the value of the whole being 3829Z. The 
 testator upon being informed that the amount was about 170Z. short 
 of 4000Z. said it should be made up to 40001. even money, and di- 
 rected for the plaintiffs, 2000L for each ; but the complement was 
 never in fact added. On the box which contained the 2225Z. Mr. 
 Bunn Clifton had before, on the 7th of March, by the testator's di- 
 rection, written " For Mrs. and Miss Clifton, 504Z." The other two 
 parcels, Mr. Bunn Clifton, by his father's direction, on the present 
 occasion sealed up and wrote on them the words, " For Mrs. and Miss 
 Clifton" The testator charged Mr. Clifton, that after his decease, 
 he should deliver these to his mother and sister, the plaintiffs. Mr. 
 'Clifton, by his father's direction, replaced this property in the iron 
 chest, locked it, and brought back the keys, which Leeson, by the 
 testator's direction, sealed up in a paper parcel, and wrote thereon, 
 "To be delivered to Mr. Jamson after Sir Jervase Clifton's decease." 
 The keys were then again put into the basket, by the testator's bed- 
 side. The plaintiffs were not then in the house, but upon Mrs. 
 Clifton's arrival some days after, the testator entrusted to her the 
 keys of the iron chest, and told her that the contents were to be her's 
 and her daughter's, and charged her to keep the keys ; and many 
 times afterwards, and particularly on the 27th of April, and on the 
 occasion of his making a farther codicil, he declared that the money 
 in the iron chest was for the plaintiffs. After this time, the testator 
 frequently expressed anxiety respecting the keys of the iron chest, 
 and required them to be shown him, and on learning that they had 
 been obtained from Mrs. Clifton by his eldest son, he expressed 
 great displeasure, and caused the keys to be replaced in the basket
 
 30 Donations mortis causa. [Cn. I. 
 
 of keys, which was always kept in his bed-room. The parcels and 
 the property therein, continued in the same state until after the 
 testator's decease, which happened a year afterwards. Gibbs, C. J. 
 left to the consideration of the jury the probability that the intend- 
 ed 4000/. of which the testator had spoken, was the same sum de- 
 signated by the codicil of the 24th of March; and also the question, 
 whether the testator meant to make this an absolute gift to the plain- 
 tiffs, or only provisional, upon the probability that he might not sur- 
 vive long enough to complete the codicil. The jury found, that this 
 was not the 4000Z. designated by the codicil, and that the testator 
 intended it as an absolute, and not a provisional gift. His lordship 
 reserved the point, whether there had been in this instance such a 
 delivery of the property as was sufficient to constitute a donatio 
 mortis causa ? And the opinion of the Court of Common Pleas was 
 thus delivered by Gibbs, C. J. " The two grounds on which the 
 present application is made, have a different object in view. The 
 one is, that the jury did not draw a correct conclusion from the facts 
 submitted to them ; the other is, to enter a nonsuit, on the ground 
 that the facts, taking them to be proved, do not make out the title 
 of the plaintiffs. The first question stands principally on the evi- 
 dence of Mr. Bunn Clifton. If his memory has not failed him, the 
 verdict is certainly right, and his credit and character stand unim- 
 peached. As to the other points, it is agreed on all hands, that a 
 donatio mortis causa cannot exist without a delivery. The facts of 
 this case are, that the property was taken out of a chest of the testa- 
 tor, looked over by him, and seated up in three different parcels : 
 being so sealed, he declares that it is intended for the witness's mo- 
 ther and sister, and directs that it shall be given to them after his 
 decease ; there is no other delivery but that : it is replaced in the 
 same chest, and the keys are re-delivered to the testator, or by him 
 to persons whom he always nominates as his servants for that effect, 
 and he expresses a continual anxiety about the custody of the keys. 
 The question is, whether this be a sufficient delivery to make a do- 
 natio mortis causa ; and we are clear that it is not. It is argued by 
 the counsel for the plaintiffs, that there needs not to be a. continu- 
 ing possession in the donee, but that the donor may resume the pos- 
 session without determining the gift. There is no case which 
 decides that the donor may resume possession, and the donatio con- 
 tinue. Smith v. Smith(p) is a very confused case. Where the 
 master died, does not appear* inasmuch as it is stated that the master 
 delivered the key of his rooms to his servants when he went out of 
 town ; probably he died in the country, and then the delivery last 
 made to his servant would be a continuing of possession up to his 
 decease. But all the cases agree, that if the donor resume the pos- 
 session, it ends the gift. Lord Hardwicke expressly so holds,.in Ward 
 v. Turner, where it suited the purpose of the counsel to argue, that if 
 the donor, after making a complete delivery, receives back the arti- 
 cle, the donation remains perfect. Lord Hardwicke immediately 
 denied that proposition, and held, that if the possession of the donee 
 do not continue, the gift is at an end. Seeing, therefore, that it is 
 in the power of the donor at any time to revoke the donation before 
 
 (/) 2 Stra. 955.
 
 SECT. II.] Donations mortis causa. 31 
 
 his death, and that there must be a continuing possession of the donee 
 after the delivery to the time of the donor's death ; seeing too, here, 
 that there is neither a delivery, nor a continuing possession, we are 
 of opinion that no interest in this property passed to Mrs. and Miss 
 Clifton under the supposed delivery to the son, for the use of his mo- 
 ther and sister ; and that therefore a nonsuit must be entered." 
 
 In the last case was cited that of Spratley v. Wilson,(q) in which 
 Gibbs, C. J. considered actual delivery unnecessary, holding the do- 
 nation sufficient, where a person in extremis, said, " I have left my 
 watch at Mr. R's, at Charing Cross, fetch it away, and I will make 
 you a present of it." But his lordship desired that the case might 
 not be mentioned, since immediately after the trial, he perceived that 
 what he had improvidently thrown out, could not be maintained, be- 
 cause a delivery was wanting, and he had accordingly written a re- 
 mark to that effect, at the end of his own note of the case. Again, 
 /' In Miller v. Miller, (r) the testator verbally gave to his wife, two~\ 
 / days before his death, his coach and two horses, in the presence of \ 
 three witnesses, but no delivery was made. Sir Joseph Jekyll deci- 
 ded that the gift was imperfect as a donation mortis causa, since 
 \ the subjects were not delivered during the life of the testator. 
 
 But although the act of delivery by the donor be complete, still it 
 may be insufficient, from the nature of the property intended to be gi- 
 ven, to entitle the donee to such property as a donation mortis causa. 
 
 This may happen in instances of symbolic deliveries of possession. 
 And it may be considered as settled, that where the thing delivered 
 in lieu of the principal, in cases where the principal itself cannot be 
 delivered in specie, is mere evidence of the subjects existence, and 
 no property in it is transferred to the donee by the symbolic delive- 
 ry, or at the utmost only a right of action, such a delivery, with a 
 view to constitute a donation mortis causa, cannot be established. 
 
 Upon this principle, Lord Hardwicke decided in Ward\. Turner(s) 
 that delivery of receipts for South sea annuities, was not such a deli- 
 very of the annuities themselves of which they were capable, and that 
 therefore the gift of them as an intended donation mortis causa, could 
 not be supported. But he inclined to the opinion, that if a transfer 
 of the annuities had been made to the donee the gift would have 
 operated as such a donation. The case was in substance to the fol- 
 lowing effect : 
 
 W. as executor of M. claimed specific parts of the personal estate \ 
 of .F. and also South Sea annuities as donations mortis causa made 
 to M. in his life-time by F. The manner in which these gifts were / 
 proved to have been made, was as follows : " I give you M. those 
 papers, which are receipts for South Sea annuities, . and will serve 
 you after I am dead." " I give you M. all the goods and plate in 
 this house ;" and a witness swore that F. declared to him and ano- 
 ther person, who alone were present, that he (F.) gave to M. all his 
 household goods, money, arrears of rent, and every thing which should 
 be found in his house, except his sword, gun and books. Lord Hard- 
 wicke determined that the gift of the general personal estate of F. I 
 could not be supported, there being no pretence of any sort of de-/ 
 livery. And with respect to the South Sea annuities, his lordsKlpT 
 
 (y) 1 -Holt 10. (r) 3 P. Will. 356. 35& () 2 Ves. sen. 431. see also 3 Madd. 185.
 
 32 Donations mortis causa. [CH. I. 
 
 after taking a minute and accurate view of the Roman and Civil 
 laws on this subject, and of all the cases then decided in the Court of 
 Chancery, adjudged, that according to each law, delivery of the thing 
 given, was necessary to an effectual donation mortis causa, and 
 therefore that the delivery of the receipts for South Sea annuities, 
 was not such a delivery of the thing given, as to effectuate the gift, 
 and compared it to the case of a mortgage where a separate receipt 
 is given for the consideration money, in which case delivery of the 
 receipt would not have been a good delivery of the possession, nor 
 given the mortgage as a donation mortis causa by force of that act. 
 His lordship was therefore of opinion, that the gift of the South Sea 
 annuities was merely legatory, and amounted to a nuncupative will, 
 which was void by the Statute of Frauds and Perjuries. But he in- 
 timated that an actual transfer of the stock would have been suffi- 
 cient to effectuate the intended donation. 
 
 So also in Miller v. Miller,(t) the delivery of a note for 100?. to the 
 testator's wife, it being neither a cash note, nor payable to bearer, 
 was held insufficient to pass to the donee the money as a donation 
 mortis causa ; and upon this principle : that such a note was merely 
 a chose in action, and must be sued for in the names of the execu- 
 tors, end that no property in it passed by the delivery. 
 
 A check which is a mere order for the payment of money, and only 
 imparts by delivery an authority to receive the sum mentioned in it, 
 cannot be the subject of a donation mortis causa ; for by the death 
 of the donor the authority determines, and the right to the money 
 becomes vested in the executor or administrator. (w) 
 
 It appears, however, that a check may be so drawn as to entitle 
 the donee to it, after the drawer's death, in the nature of a donation 
 mortis causa. 
 
 Thus in Lawson v. Lawson,(x) A. during his last illness, drew a 
 bill upon a goldsmith for the payment of WOl. to B. the wife of A. 
 with a written endorsement that the money was " to buy her mourn- 
 ing," and the bill was delivered to B. It was determined that she was 
 entitled to the money. The principle of the decision was considered 
 by Lord Rosslyn to be this : " That taking the whole bill together it 
 was an appointment of the money in the goldsmith's hands to the ex- 
 tent of 100Z. for the particular purpose expressed in the written en- 
 dorsement ; a purpose which necessarily supposed the appointor's 
 death."(i/) 
 
 It seems that probate of the above bill was unnecessary,(z) for a 
 gift when once declared to be a donation mortis causa, or in the na- 
 ture of one, takes effect from the delivery ; so that the donee claims 
 the subject as a gift from the donor in his life-time, and not under a 
 testamentary act ; and the appointment in the last case operatecfas 
 a declaration of trust upon the executor of A. 
 
 Notwithstanding the necessity of delivery to constitute a donation 
 mortis causa made by parol, it is an unsettled question whether such 
 kind of gift, appearing in writing, without delivery of the subject, 
 can be supported. By the Roman and civil law a gift mortis causa 
 might be made in writing ;(a) and in allusion to that law, as it is pre- 
 
 (0 3 P. Will. 356. () 4 Bro. C.C. 291. (*) 1 P. Will. 441. (y) 2 Ves. jun. 121. 
 (z) 1 P. Will. 441. (a) Dig, lib. 39. tit, 6. 1. 28. 2 Ves. sen. 440.
 
 SECT. II.] Donations mortis causa. 33 
 
 sumed, Lord Rosslyn in Tate v. Hilbert,(b) inclined to think that by 
 the law of England such a donation might be made by deed or writing 
 without delivery of the things contained in it. Lord Hardwicke also 
 seems to have been of opinion, in Ward v. Turner,(c) and Johnsonv. 
 Smith,(d ) that a gift mortis causa might be by deed without actual 
 delivery of its contents. But it must be noticed in regard to the 
 Roman law, that it is so far only of authority as it has been received 
 and allowed in this country ; and it appears that the civil law has 
 only been followed in cases upon the present subject so far as the 
 donations were accompanied with delivery. That the Ecclesiastical 
 Court has considered a deed or writing, made not in the form of a 
 will, and continuing in possession of the deceased, testamentary, and 
 therefore not operating as a gift mortis causa, appears from two cases 
 stated by Lord Hardwicke in Ward v. Turner. (e] 
 
 The first case was Ousley v. Carrol, in June 1722, in the Pre- 
 rogative Court, before Dr. Bettesworth. A writing was left in the 
 presence of three witnesses, not in the form of a will but a deed ; 
 viz. " I have given and granted, and give and grant to my five 
 sisters and children of the sixth, their executors or administrators, in 
 case they survive me, all my goods and chattels, and real and personal 
 estate, and all which I may claim in right of rt\y own, whether alive 
 or dead." The dispute was by a person claiming as his wife (but 
 who had been divorced) insisting that the above writing was no will 
 but a deed of gift mortis causa ; and the Ecclesiastical Judge was 
 of opinion, that it was testamentary ; and probate was granted, from 
 which there was no appeal. 
 
 The second case was Shargold v. Shargold, cited in the last, 
 upon a deed of gift by Dr. Pope not to take place until his death ; 
 and six-pence was delivered by way of symbol to put the grantee in 
 possession. The deed was pronounced for as a will, not as a dona- 
 tion mortis causa. 
 
 That such instruments are considered testamentary by the tem- 
 poral courts, and proper to be proved, appears from the case of 
 Rigden v. Vallier^f} and the authorities there referred to. (g) And 
 it seems a consequence from the above observations that, as probate 
 is not only unnecessary but improper in instances of valid gifts mor- 
 tis causa, such donations cannot be made by mere deed not deliver- 
 ed, nor by a writing referring to the donor's death unaccompanied 
 by a delivery of the subjects of the gifts. Probably the law upon 
 this subject may be stated to the following effect : 
 
 1 . That since, without delivery, a donation mortis causa made by 
 parol would be imperfect, so k would be if made in writing without 
 such tradition. 
 
 2. But that if the writing were a deed and delivered to the donee ; 
 then as deh' very of a bond is a good donation mortis causa of the 
 money secured by it,(/t) so it should seem that delivery of the deed 
 would be an equally valid donation of the property contained in it. 
 But that, 
 
 3. If the deed were kept in the possession of the donor, and so 
 found at his death, not only a delivery in his lifetime would be want- 
 ed 2Ves. jun. 120. (c) 2 Ves. sen. 440. W) iVes. sen. 314. (e)2 Ves. sen. 440, 
 
 (/) 2 Ves. sen. 252. (^) Ibid. 25&. (A) See infra* p. 36. 
 
 VOL. I. E
 
 34 Donations mortis causa. [On. 1. 
 
 ing, an act essential to this species of donation, but the deed as a 
 deed would be defective ; and no delivery of it having been made, 
 the gift of course cannot relate to any such during the donor's life. 
 The instrument, therefore, must of necessity be considered testamen- 
 tary in order to give it any effect, and it cannot operate as a dona- 
 tion mortis causa. In such a case probate by the ecclesiastical 
 court will be necessary. 
 
 If, however, from the nature of the instrument the property in it 
 be capable of transfer by delivery, it is a consequence that such 
 instrument may be the subject of a donation mortis causa. Accord- 
 ingly it has been determined that such a donation of bank notes is 
 effectual. 
 
 This decision was made in the case of Miller v. Miller, before re- 
 ferred to ; for there the testator, besides the gift to his wife of the 
 note for 100Z. which was neither a cash note nor payable to bearer 
 as before observed, (i) gave to hef two bank notes of 300/. each in 
 the following manner : he took from his pocket book the notes, and 
 gave them to his servant, directing him to deliver them to his wife, 
 who was then present. Sir Joseph Jekyll decided that the bank 
 notes were well given as a donation mortis causa. 
 
 That case was followed by Lord Thurlow in Hillv. Chapman,(k) 
 in which A. in 1779 delivered his will to B. (one of his executors, 
 and a receiver of his rents,) declaring that there was something 
 in it for him which would reward him for the trouble he had often 
 given him, and also for the trouble he would have in the execution 
 of the will beyond his co-executors, in consequence of his knowledge 
 of A's affairs, to all of whom he had bequeathed equal legacies. At 
 the time of the delivery of the will to B. there was pinned to it a 
 note or paper addressed to B., in which was inclosed a bank note of 
 501. The will with the annexed paper and inclosure was frequently 
 returned to .#., and as often re-delivered to B.; but at the last re- 
 delivery, which was in November 1784, A. told B. that he had not 
 done enough for him ; and observed, that he had doubled the amount 
 of what was inclosed in the paper. And on a subsequent occasion, 
 A. said to B., " Now I have made another will, the old will is of no 
 use to me, but you must take care of it, by reason, you know, there 
 is something with it for yourself; as soon as I am dead, open the 
 paper and take it out." He also added, " that he (.#.) gave it to 
 him in that manner, to prevent his daughter knowing how much he 
 gave him." When the will was last delivered to B. there was pin- 
 ned to it a paper, directed " For B. the 8th of November 1784," which 
 contained two bank notes of 50Z. each, and the new will of A. to 
 which he alluded as above, was dated the 15th of January 1785, 
 and bequeathed to his executors 50Z. a piece, one of whom was B., 
 and to whom A. gave the further sum of 101. for mourning. The 
 whole of this statement was made by B. before the master upon 
 whose report it appeared, and the question was, whether B. was en- 
 titled to the two bank notes as a donation mortis causal and Lord 
 Thurlow, C. said he thought the gift good as such donation. 
 
 It does not appear, from the report of the last case, whether the 
 final delivery of the will and the paper billet annexed to it was dur- 
 
 (j) Seefftt/irc, p. 32. (A:) 2 Bro. C. C. 612. Ed. by Belt.
 
 SECT. II.] Donations mortis causa. 35 
 
 ing ffls last illness ; it must, however, be presumed to have been so, 
 or the gift would be destitute of one of the essential requisites con- 
 stituting a donation mortis c'ausa.(l) 
 
 Upon the same principle that bank notes are proper subjects for 
 donations mortis causit, it would seem that government securities for 
 money will be so considered. 
 
 On this ground the opinion of the Master of the Rolls in Jones v. 
 Selby (m) may be supported so far as regards the capability of a gov- 
 ernment tally to be the subject of a donation mortis causa. Lord 
 Cowper, on appeal from his Honour's decree, does not appear to have 
 entertained a doubt, but that the tally was a fit subject for such a 
 donation, though he reversed the judgment under the idea that the 
 gift was not sufficiently proved, or if it had been so, that it was satis- 
 fied by the subsequent testamentary provision of the donor. The 
 plaintiff' in that case, was the relation and house-keeper of C. M. 
 with whom she had lived upwards of twenty years. C. M. by his will, 
 made in March 1702, gave to the plaintiff 5001. ; and about two or 
 three months afterwards, being desirous of increasing her fortune, 
 and having a hair trunk in which were several things of value, C. M. 
 sent for her, and in the presence of two of his servants spoke thus ; 
 " I give to my cousin this hair trunk and all that is contained in it " 
 He gave her the key, and bid the servant take notice and remember 
 it ; and it was proved in the cause that he, several times afterwards, 
 inquired of his servants if they remembered the hair trunk, and once 
 took a candle and showed it them, that they might remember it. 
 Three years afterwards, C. M. made another will, revoking all for- 
 mer wills, and bequeathed to the plaintiff 10001. but took no notice 
 of the gift of the hair trunk, or any thing in it, and died. Four days 
 after his death, upon opening the trunk, in the presence of several 
 relations and other persons, there, were found in it several rings, 
 pieces of gold, and among other things, a tally upon the govern- 
 ment for 5001. A suit being instituted by the plaintiff for the 500Z. 
 tally and the.lOOOJ. the Master of Rolls decreed them to her; and 
 on appeal from this decree it was contended for the appellant, that 
 the gift being in the nature of a legacy and ambulatory, until the 
 death of the testator, he by revoking all former wills, revoked also 
 the gift, but if it were not to be so considered, then that the legacy 
 of 10001. was a satisfaction of the 500/. tally ; and that the plaintiff 
 should have proved that the tally was in the trunk at the time of the 
 gift. Of this opinion was Lord Cowper, observing, " That these 
 sorts of donations, especially where they were of the same kind with 
 what was given by the will, ought to be fully proved in all the cir- 
 cumstances, otherwise they ought not to be countenanced, because 
 it would open a way to perjury and fraud, greater than the statutes 
 had provided against ; that the plaintiff had not proved, by any one 
 witness, that this tally was in the trunk at the time of the gift ; that 
 if it had been so, surely the testator, would, then, or when he had 
 occasion so often, afterwards, have told the witnesses of it ; that it 
 was strange he should bid them take notice of the trunk, and not 
 mention the tally, which was the principal thing in it ; that all the 
 plaintiffs proved was its being there when the trunk was opened, 
 
 (/) See Suflra, p. 25. * (m) Pre. Ch. 300.
 
 36 Donations mortis causa. [H. 1. 
 
 which was three years after the gift, and four days after the testator's 
 death. That his lordship sat there to condemn frauds, and there- 
 fore might presume them unless they proved the contrary." The 
 Court, however, considered the legacy of 1000Z. a satisfaction of the 
 500J. tally, and therefore reversed the decree at the Rolls. 
 
 There seems to be another reason independently of the doctrine 
 of satisfaction, which would have disappointed the delivery in this 
 case as a donation mortis causa, viz. that it was not made during 
 the last illness of the testator, nor in the immediate peril of death ; 
 and it may be further observed, that there was no delivery of the 
 trunk to the donee, but of the key only, so that it appears the de- 
 livery was incomplete, and the donation therefore imperfect. 
 
 The reason why bank notes may be the subjects of gifts mortis 
 causa, viz. that they are considered money, and not merely as re- 
 presenting money, and that the property in the money passes by 
 their delivery, equally applies to government and negotiable secu- 
 rities under particular circumstances. Hence it is conceived that 
 all negotiable instruments, which require nothing more than de- 
 livery to pass to the donee the money secured by them, may be the 
 subjects of donations mortis causa. That the delivery of bank 
 notes has been so adjudged appears in a preceding page,(w) and 
 there is no reason why exchequer notes,(o) or promissory notes pay- 
 able to bearer,(p) or bills of exchange^) and exchequer bills(r) in- 
 dorsed in blank, should not have the same capability ; for in all 
 those cases the property and the possession are inseparable ; i. e. by 
 delivery, the property passes to the donee. 
 
 The inference made in the remark upon the case of Hill v. Chap- 
 man(s) of the donation having been made in prospectu mortis, must 
 be also observed in that next stated, which w as the first case deter- 
 mining 
 
 That bonds might be subjects of donations mortis causa. The 
 reasons for the decision as to bonds are these ; that although a bond, 
 which is a specialty, be a chose in action, and its principal value 
 consists in the thing in action, yet some property is conveyed by the 
 delivery. The law too allows it a locality, thereby making it capable 
 of delivery. It is this locality that makes a bond bona notabilia, so 
 as to render a prerogative administration necessary where the obli- 
 gation is in one diocese and goods in another. () Under these cir- 
 cumstances, delivery of a bond as a donation mortis causa is valid. 
 Thus in Snellgrove v. Baily,(u} a bond for 1000J. was given by 
 B. to C. who delivered it to 1). saying, " in case I die, it is your's, 
 and then you have something." Lord Hardivicke determined that 
 D. was entitled to the bond as a donation mortis causa. 
 
 The above case was followed by that of Gardner v. Farker,(x) 
 in which Sir John Leach, V. C. made a similar decision. 
 
 Since it is settled that bonds are capable of passing as donations 
 mortis causa by delivery, it should seem that the same principle 
 would apply to the delivery of mortgage deeds by the mortgagee ; 
 
 (n) See sufira t p. 34. (o) 4 Barn Sc Aid. 9. (//) Ibid. 
 
 (<]} Collins v. Martin, 1 Bos. & Pull. 648-65K 
 
 ( r) Wookey v, Pole, 4 Barn. & Aid. 1. () See su/ira, p. 34. 
 
 (0 2 Ves. sen. 442. (u) 3 Atk. 214. (x) 3 Madd. 184, and stated supra, p. 27.
 
 SECT. II.] Donations mortis causa. 37 
 
 for they are specialties, and bona notabilia, and it can hardly be 
 contended that no property in the money secured passed by the de- 
 livery to the donee, when the contrary has been determined in instan- 
 ces of the delivery of bonds to the donees. That the delivery of 
 mortgage deeds mortis causa may be good, appears to be impliedly 
 admitted by Lord Hardwicke in Ward v. Turner,(y) for he said, 
 " Suppose the delivery had been of a mortgage, and a separate re- 
 ceipt had been taken for the money, not on the back of the deed, 
 and the mortgagee had delivered such receipt to the donee, that 
 would not have been a good delivery of the possession, nor given the 
 mortgage mortis causa by force of that act." Hence arises a natu- 
 ral inference from the case so put, that if the receipt had been in- 
 dorsed on the deed, and the deed delivered to the donee inprospectu 
 mortis, such a delivery would have entitled him to the money due on 
 the mortgage, and to call upon the legal representative of the donor 
 to clothe him with the legal title to empower him to recover the 
 money from the mortgagor. (z) 
 
 In Hassell v. Tynte,(a) Lord Hardwicke, who seldom doubted, 
 entertained scruples upon this point, and would not determine the 
 question. This doubt originated upon the Statute of Frauds,(&) for 
 he thought it uncertain whether an interest in lands could pass since 
 that Act by a parol gift. But in answer it may be observed, that it 
 is the property in the money (the principal) which passes by the gift 
 and delivery, and that the donee, being so entitled, the heir of the do- 
 nor is a trustee for him of the legal interest in the estate in mortgage. 
 
 It has been noticed that delivery of the thing given is indispensa- 
 ble to a valid donation mortis causd,(c) yet it may be inferred from 
 Lord Hardwicke' s reasoning in Ward v. Turner, (d) that when the 
 intended gift is incapable of delivery in specie from its size or quanti- 
 ty, delivery of the thing by which possession is to be obtained and 
 the thing used, will be considered such a delivery of the subject it- 
 self, as with the other requisites will constitute a complete donation 
 mortis causa ; for his lordship in distinguishing between the differ- 
 ent effects of actual and symbolic delivery, thus expressed himself: 
 " It never was imagined on the statute 21 James 1. (alluded to in the 
 argument) that delivery of a mere symbol in the name of the thing 
 would be sufficient to take it out of that act ; yet delivery of the 
 key of bulky goods, where wines, &c. are, has been allowed as de- 
 livery of the possession, because it is the way of coming at the pos- 
 session or to make use of the thing. The key therefore is not a 
 symbol, which would not do." 
 
 Since the preceding observations by the deceased author were 
 written, the point contended for by him has been otherwise deter- 
 mined. In the case of Duffield v. Elwes,(e) George Elwes was pos- 
 sessed of a bond for 2927Z. and had, also, a mortgage, created by a 
 deed of even date with the bond, for securing the sum mentioned in 
 the bond, and he had another mortgage for 30,OOOiL On the first of 
 
 (y) 2 Vcs. sen. 443. (z) See 3 Madd. 185. also Hurst v. Beach, 5 Madd. 351. 
 355, a case determined since the above observations "were written. 
 
 (a) Ambl. 318. (A) 29 Car. 2. c. 3. (c) See supra, p. 27. 
 
 (d) 2 Ves. sen. 443. and see the cases of Bryson'v. Bronunrigg, and Bunn v. 
 Markham, ante, pp. 27 5c 28. (e) Sim. Sc Stu. 1 v. p. 243.
 
 38 Donations mortis causa. [Cn. I. 
 
 September 1821, when he was on his death bed, so ill as to be un- 
 able to write, but of sound and disposing mind, in the presence of 
 three persons as witnesses, he declared that he gave the bond and 
 mortgages, and the money secured by them, to his daughter Mrs. 
 Dujfield ; a written statement of this declaration was forthwith made, 
 and signed by the three persons in whose presence the declaration 
 was made. Very soon afterwards, on the same day, and in presence 
 of the same persons, the mortgage deeds and bond were produced to 
 the testator, and he was told what they w T ere ; on which he desired 
 them to be delivered into the hands of "Mrs. Dujfield; they were ac- 
 cordingly delivered into her hand ; and, whilst she held the deeds, 
 he took her hands between his, in token of having completed the 
 gift, and expressed satisfaction when he had done so. He died on 
 the following day. 
 
 Arguments similar to those previously stated were urged in sup- 
 port of the gift. But the Vice Chancellor said, "The case of a bond 
 I consider to be an exception, and not a rule. Property may pass 
 without writing, either as a donatio mortis causa, or by a nuncupa- 
 tive will, according to the forms required by the statute. The dis- 
 tinction between a donatio mortis causa, and a nuncupative will is, 
 that the first is claimed against the executor, and the other from the 
 executor. Where delivery will not execute a complete gift inter 
 vivos, it cannot create a donatio mortis causa, because it will not 
 prevent the property from vesting in the executors ; and, as a court 
 of equity will not, inter vivos, compel a party to complete his gift, 
 so it will not compel the executor to complete the gift of his testa- 
 tor. The delivery of a mortgage deed cannot pass the property 
 inter vivos ; first, because the action for the money must still be in 
 the name of the donor ; and, secondly, because the mortgagor is not 
 compellable to pay the money without having back the mortgaged 
 estate, which can only pass by the deed of the mortgagee ; and no 
 court would compel the donor to complete his gift by executing 
 such a deed. 
 
 " As to the case where a bond accompanied the mortgage deed, 
 I was at first inclined to think that, as the bond alone, if it had been 
 the only security for the debt, would, under the decisions, have 
 passed as a donatio mortis causa, so it would draw after it the mort- 
 gage, as being a collateral security for the same debt ; but, upon 
 further consideration, I think that the delivery of the bond, where 
 there is also a mortgage, cannot be considered as a gift completed. 
 The mortgagor has a right to resist the payment of the bond, with- 
 out a re-conveyance of the estate ; and it cannot be maintained that 
 the donor of the bond would be compelled to complete his gift by 
 such re-conveyance. The case of the Duchess of Buccleuch v. 
 Hoare,(f] where I held, that a gift by will of an English bond was 
 a gift also of a Scotch heritable security for the same debt, does 
 not apply to this case. There the single question was, whether the 
 gift of the English bond was not, within the intention of the testa- 
 tor, a gift of the debt, and did not necessarily carry with it all secu- 
 rities for the debt. The question here is, not as to the intention to 
 give, but whether the gift be completed. I think the gifts were not 
 
 (/) 4 MadA 467.
 
 SECT. II.] Donations mortis causa. 39 
 
 completed ; and must declare, that there was no good donatio mortis 
 causa of these mortgages, even in the case where the mortgage was 
 accompanied by a bond." 
 
 The next subject proposed to be considered is 
 
 3. The Evidence admissible to prove the Donation, and the suffi- 
 ciency of such Evidence. 
 
 It is a rule that a person cannot be allowed to give evidence in 
 his own behalf; so that in general a gift mortis causa must be proved 
 by other evidence than that of the donee. 
 
 There is, however, an exception to this doctrine in instances 
 where the donee is executor or administrator of the donor ; for as a 
 person in the character of executor or administrator is examined 
 upon oath to charge himself with receipts of assets, he may so frame 
 his examination as to make it operate in his discharge, which neces- 
 sarily enables him to prove the manner of his becoming possessed 
 of the property delivered to him as a donation mortis causa. But 
 to entitle the donee to such a discharge, it and the charge must be 
 contained in the same sentence.(g) 
 
 Accordingly in Blount v. Burrow,(Ji) A. the donee was the exe- 
 cutor of B. the donor, and being examined upon oath before a Mas- 
 ter to charge himself with the receipt of four India bonds, he de- 
 posed to the following effect ; " But this examinant saith, that the 
 said testator on, &c. being about twelve days before his death, gave 
 and delivered to the examinant four India bonds for 100Z. each, for 
 his (examinant's) use, to enable him to carry on and maintain a suit, 
 &c. which was at the testator's death, and still is, depending, and 
 therefore he claims the same." And the Court was* of opinion that 
 the examination was good evidence in discharge of A. 
 
 In Tate v. Hilbert,(i) the plaintiffs (donees) were relations of the 
 testator. The defendant was the executor. The testimony of each 
 plaintiff for the other was admitted to prove the donations. But 
 Lord Rosslyn observed, " that to make a stretch to effect gifts made 
 by persons surrounded by relations who give evidence for each other, 
 would be attended with .great inconvenience." 
 
 With respect to evidence sufficient to prove the requisites of a do- 
 nation mortis causa, it may be observed in general, that it is neces- 
 sary to show the gift to have been made with a view to the death of 
 the donor of a particular illness, or in consequence of some imminent 
 peril, and also delivery of the subject to the donee. The necessity 
 of the first requisite appears from the case of Tate v. Hilbert,(k) and 
 of the second, from the cases below referred to. (I) 
 
 In Blount v. Burrow, as reported by Mr. Vesey,(m) Eyre, Ch. 
 Bar. expressed an opinion, that if it did not appear from the evidence 
 that the gift was made during the last illness of the donor, the dona- 
 tion, as one mortis causa, could not be supported. But Mr. Brown, 
 
 (g) Kirkfiatrick v. Love, Ambl. 589, and Talbot v. Rutledge, stated 4 Bro. C. 
 C. 74. 
 
 (A) 1 Ves. jun. 546. 4 Bro. C. C. 72. See also Hill v. Chapman, 2 Bro. C. C. 
 612, ante, p. 34. (i) 2 Ves. jun. 111. 
 
 ( ) Ibid. 546. and see Waller v. Hodge, 2 Swanst. 100. 
 
 (/) Bryson v. Brownrigg, 9 Ves. 1. Bunn v. Markham, 7 Taunt, 224. Ward 
 v. Turner, 2 Ves. sen. 431, and Miller v. Miller, 3. P. Will. 356. 
 
 (m) 1 Ves. jun. 546.
 
 40 Donations mortis causa. [Cn. I. 
 
 in his re port of the same case, does not make the Chief Baron utter 
 any such opinion. (n) The gift was made as we have seen, about 
 twelve days before the donor's death ; and because the written ex- 
 amination of the donjee omitted to state that the gift was made during 
 the last indisposition of the donor, the Court, according to Mr. f^esey, 
 expressed the opinion before mentioned; and directed an issue to 
 try whether the gift was a donation mortis causa. 
 
 It must 4>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. 
 (<?) 25 Geo. 2. chap. 6. 
 17 Ves. 508.
 
 SECT. I.] Description of Legatees. 45 
 
 nesses attesting the execution of " any will or codicil ;" terms em- 
 bracing within their import testaments disposing merely of personal 
 property. 
 
 An uncertificated bankrupt may be a legatee, but the beneficial 
 interest will belong to his assignees in trust for his creditors. (h) 
 
 A legacy of personal chattels to an alien friend is good since he 
 may retain an interest in that species of property though he cannot 
 hold real estates. (i) How far he may take money to arise by the sale 
 of, or charged upon real estate does not appear to be expressly de- 
 cided. A bequest of monies charged upon, or arising from the sale 
 of real estate is considered, in many points of view, a devise of land 
 itself; and in analogy to the decisions upon the mortmain acts and 
 the statute of frauds, it should seem that the subject of such a be- 
 quest to an alien friend would be forfeited to the king, who, upon 
 office found, would become entitled to recover it. If therefore lands 
 were devised to trustees upon trust to sell, and subject to certain 
 specific charges to pay the residue to an alien, the alien might; if 
 such a devise were good, insist upon paying off the antecedent 
 charges, and, that done, keep the estate itself; in such a case little 
 doubt can be entertained but that a forfeiture would take place ; but 
 if the lands were only charged, amongst others, with a specific sum 
 to an alien friend, or the trust of monies to arise by -sale of lands were 
 to pay such a sum to the alien friend so as not to entitle him to insist 
 upon holding the estate itself after satisfying the other charges 
 Qucere, whether the specific sum would be forfeited to the crown "? 
 See the analogy between the case above put and that of Roper v. 
 Radcliff"e,(k) and the marginal note to that case by the author of the 
 abridgment. 
 
 A legacy of a mere personal chattel to an alien enemy will be for- 
 feited to the king, and, as there must be an inquisition to entitle, if 
 before the inquisition, a peace take place, it will discharge the cause 
 of forfeiture and the alien may recover the legacy. (I) It should 
 seem that the law would be the same in the ca^e of a legacy to a 
 natural born subject residing in an enemy's country and in allegi- 
 ance with such enemies, for he would be considered as an alien 
 enemy.(rn) 
 
 SECOND, Of the description of Legatees. 
 
 SECT. I. Legacies to Legitimate children. 
 1. Where children living at the date of the Will are entitled in 
 
 exclusion of those afterwards born. 
 
 When it appears from express declaration, or a clear inference 
 arising upon the face of a will, that a testator in giving a legacy to a 
 class of individuals generally intended to apply the terms used by 
 him to such persons only as answered the description at the date of 
 the instrument, those individuals alone will be entitled, although if 
 no such intention had been expressed or appeared in the will, every 
 person falling within the class at the testator's death would have been 
 included in the terms of the bequest. 
 
 f h] Ex-parte Ansell, 19 Ves. 208. (i) Calvin's case, 7 Co. Rep. 17. 
 
 f XT) Cited in 5 Bacon, abt. title Papists, C. 7, last edition, p. 278. 
 
 (/) Attorney Gen. v. Weedon, Parker's Rep. 267. (m) 3 Bos. 8c Pul. 114.
 
 46 Description of Legatees. [Cn. II. 
 
 Accordingly in Christopherson v. Naylor,(n) the bequest was 
 " to each and every of the child and children of my brother and sis- 
 ters, John, Esther, Martha, and Tamar Turnbull, which shall be 
 living at the time of my decease, except my nephew F. F.;" for 
 whom he had otherwise provided: " But if any child or children of 
 my said brother and sisters, or any of them [besides the said F. F. 
 my nephew] shall happen to die in my lifetime, and leave any issue 
 living at, or born in due time after his, her, or their decease, then the 
 legacy or legacies intended for such child or children so dying, shall 
 be in trust for his, her, or their issue ; such issue taking only the lega- 
 cy or legacies which the parent or parents would have been entitled 
 to, if living at my decease." Martha died during the life of the tes- 
 tator, leaving three children, all of whom died before the testator 
 made his will, leaving issue, who claimed in right of their parents to 
 participate in the bequest. The validity of the demand depended 
 upon the question, whether the circumstance of the children not 
 having been alive at the date of the will excluded their issue from 
 any shares of the legacies. And it was determined by Sir William 
 Grant, M. R. that the issue were not entitled, as none but children of 
 the brother and sisters, who were living at the date of the will, had 
 any interest in the bequest. Those children alone were the primary 
 legatees, and the bequest to issue was merely intended in substitu- 
 tion of such children, an intention which necessarily excluded the 
 issue of children who were dead when the will was made. 
 
 It is to be remarked, that the last was a case in which the testator 
 did not stand in the relation of parent to the legatees ; for when a 
 testator is clothed with that character, it being his duty to provide 
 for his children at his death, a court of equity presumes that he in- 
 tended to do so by his testament; it will therefore give effect to the 
 supposed intention in laying hold of any general expressions which 
 include all children, notwithstanding it be apparent from the con- 
 text that only children in existence when the will was made were 
 within contemplation of the testator. Yet even between parent and 
 child, if it be evident that he really forgot that he might have other 
 children than those living at the date of his will, and has upon the 
 face of that instrument made provision for such of them as were then 
 in existence, and omits those to be born in future, it is impossible to 
 supply that defect and to give them any provision, however desirous 
 the court may be to do so.(o) i^MA^ 
 
 In Matchwick v. Cock,(p) James Mat chwick having one son and 
 two daughters, devised all his real personal estates to trustees, to ap- 
 ply at their discretion the whole or part of the annual produce of the 
 net surplus of both funds for the support of his wife, and the main- 
 tenance and education of his children until his wife's death or second 
 marriage, in which latter event, the provision for her support was to 
 cease, and the whole yearly produce to be applied for the maintenance 
 and education of his children. The testator then authorized his trus- 
 tees to advance a premium to apprentice his son Thomas, or to apply 
 part of the trust funds for the advancement of either of his daughters, 
 with a direction to convey, upon his wife's death, a house and lands 
 
 (n) 1 Meriv. 320. and see 3 Ves. 611. (o) 3 Ves. 611. (/i) 3 Ves. 609.
 
 SECT. I.] Description of Legatees. 47 
 
 to his said son in fee, and on the same event to pay to each and every 
 of his daughters who might be then living 1000L unless they or 
 either of them should have been previously advanced by the trustees, 
 and then only so much as would make the portion of either of his 
 daughters WOOL The trustees were also directed at the time last- 
 mentioned to deliver to his children all his household goods, &c. 
 and to assign and deliver to his said son all the rest of his property, 
 regard being paid to the minority of his children, so as not to invest 
 them with any of it before the age of twenty-one. In addition to the 
 three children in existence when the will was made, the testator left 
 two sons ; and the question was, whether they were entitled with their 
 brother and sisters to the provision of maintenance during the life of 
 the wife, which depended upon this, whether that provision was con- 
 fined to children in esse at the date of the will *? And Lord Mvanley^ 
 M. R. decided in favour of the after-born sons, upon the principle 
 before stated, and would not permit the general expression " his chil- 
 dren" to be narrowed by the context. He observed, that if it were 
 not the case of parent and child, the inference must be made that the 
 testator only intended to provide for his eldest son and two daugh- 
 ters ; and his Honour remarked the impossibility under the will to 
 admit after-born sons to a share of the residue, or to give them the 
 sums provided for daughters. 
 
 Next followed the case of Freemantle v. Taylor, (q) in which Sir 
 William Grant, upon the weight of the last authority, made a like 
 decree under similar circumstances. 
 
 If, however, the intention of a testator be clear to confine his 
 bounty to those children only who are living at the making of his 
 will, that intention must prevail (as before observed) to the exclusion 
 of children afterwards born. So that if A. bequeath 1000/. to the 
 children of B. now living ;(r) or to the three children of B. (who 
 has that number at the date of the will) and another child is born 
 to him before the death of the testator, it cannot participate in the 
 legacy ; because it is manifest that the three children in existence 
 ^vhen the will was made, were the only persons designed to take 
 the 1000Z. ;(s) and the fourth child does not answer the descrip- 
 tion in the will, so that if one of the three died shortly after .the date 
 of the instrument, the fourth child could not be permitted to stand 
 in his place. 
 
 Thus in Sherer v. Btehop,(t) Nicholas Fayting gave a legacy of 
 3000Z. stock to be divided between the six children of John Sherer 
 and Mary his wife, at their ages of twenty-one, &c. When the will 
 was made, there were six children living, and a seventh was born 
 during the life of the testator, of whom he took no notice in two 
 codicils which he afterwards added to his will. And it was determin- 
 ed against the claim of the after-born child, since it was apparent 
 that the testator meant only to provide for the six children of John 
 and Mary Sherer, who were in esse when he made his will, and lite- 
 rally answered the description of the bequest. 
 
 It is a consequence of the seventh child not answering the descrip- 
 tion in the will, that it could not be let in to take a share of the lega- 
 cy, although one of the six children should dip before the testa- 
 
 (y) 15 Ves. 363. (r) Ambl. 397. () 2 Cox, 191. (/) 4 Bro. C. C. 55.
 
 48 Description of Legatees. [Cn. II. 
 
 tor. (u) And for the same reason the re-publication of the will by 
 the codicils, could not remove the original objection, since, although 
 the will speaks as well from the dates of the codicils as from its 
 own date, yet the difficulty remains, viz. how a seventh child can 
 possibly take a share in a legacy given by will tq six only in exis- 
 tence at its date. 
 
 The case, however, would be different (as appears from that of 
 Sherer v. Bishop, before in part stated) if the bequest in the will had 
 been to the children of John and Mary Sherer, living at the date of 
 it, without mentioning any number, for then the will, being made to 
 speak from the making of the last codicil, and after the seventh child 
 was born, that child answers the description of the bequest, which 
 ought to be read, " to the children of John and Mary Sherer living 
 at the date of the codicil" 
 
 A Court of Equity, indeed, uses all possible ingenuity in constru- 
 ing testamentary expressions in such a manner as to include all chil- 
 dren in existence at the testator's death. To this practice may be 
 attributed the decision of the case next stated, in which the words 
 " to every child that Jl. hath by his wife," had the same effect given 
 to them as if the expressions had been " to every child that Jl. shall 
 have by his wife at my decease." In ordinary acceptation, the word 
 " hath," is applicable to objects in existence, but the Court thought 
 it might consistently with its habit, and the intention of the testator, 
 give a prospective sense to the term, in order to include the children 
 of A. living at the death of the testator. 
 
 The case alluded to is, v Ringrose v. Bramham,(x} in which the 
 testator bequeathed to Joseph Ringrose' s children 501. " to every 
 child he hath by his wife Elizabeth" to be paid at twenty-one, with in- 
 terest in the meantime. A legacy of 50i. was also given in similar 
 terms to Christopher Rhodes' s children. There were eleven children 
 of Ringrose and Rhodes's living at the date of the will ; other three 
 were afterwards born, and alive at the death of the testator. And it 
 was decided by the Master of the Rolls, that the three were entitled 
 with the eleven children to legacies of 50Z. each, his Honour remark- 
 ing, that he might fairly construe the word hath, so as to make it 
 speak at the time the will took effect, and let in the children born 
 between the making of the instrument and the death of the testator. 
 
 With the case last stated, we shall close the first subdivision, and 
 proceed to consider 
 
 2. When children living at the death of the testator, are entitled 
 to the fund bequeathed to children, in exclusion of those after-born. 
 
 Where a legacy is given to a descript class of individuals, as to 
 children, in general terms, and no period is appointed for the distri- 
 bution of it ; the legacy is due at the death of the testator ; the pay- 
 ment of it being merely postponed to the end of a year after that 
 event, for the convenience of the executor or administrator in ad- 
 ministering the assets. The rights therefore of legatees are finally 
 settled and determined at the testator's decease.(y) Upon this prin- 
 ciple is founded the well established rule, that children in existence 
 at that period, or legally considered so to be, are alone entitled to 
 participate in the bequest. As an example of this : 
 
 (u) 3 Bro. C. C. 148. (*) 2 Cox. 384. (y)l Ball & Beat. 459.
 
 SECT. I.] Description of Legatees. JO 
 
 The testator bequeathed his goods and chattels to two persons to 
 pay debts, and the residue to be employed for the benefit of their 
 children, by the testator's daughters, /2. and B. in equal shares. 
 The daughters had children born before the will was made, some 
 afterwards and before the testator's death ; and others after that 
 event. The question was, which of those children should take 1 
 And the Lord Chancellor determined that the division of .the pro- 
 perty was to take place at the death of the testator, and for that rea- 
 son all the children born during the testator's life, were entitled, in 
 exclusion of those born after his decease. (z) 
 
 So in Viner v. Francisco) the bequest was " to the children of 
 my late s\ster Mary Crowser, I give the sum of 10001. to be equally 
 divided among them." Mary had three children living when the 
 will was made, one of them named William, died before the testator; 
 so that if the terms of the bequest to children were to be construed 
 to include those children only who were living at the date of the 
 will, William's share would have lapsed. But if those terms were 
 to be construed to include children who should be living at the 
 death of the testator, the entire fund would belong to the two chil- 
 dren who were then in existence, and answered the description of 
 children of Mary. (6) In support of the first point, it was contend- 
 ed that the bequest to the children " of my late sister," was equiva- 
 lent to a gift to them, nominatim, or was the same as if the testa- 
 tor had used the words, " to the three children of my late sister 
 Mary." But the Master of the Rolls was of a different opinion, 
 and declared in favour of the two survivors, upon the principle, that 
 where a person bequeaths property among his own children gene- 
 rally, he is presumed to mean among such of them as shall be living 
 at Jiis death ; a presumption equally applicable in the present in- 
 stance. 
 
 It will make no difference as to the application of the rule, al- 
 though the terms of the bequest be prospective, and no particular 
 time of payment is mentioned ; for the fund will nevertheless be di- 
 visible at the testator's death, which necessarily excludes after-born 
 children. If then a legacy were given " to the children of my daugh- 
 ter Mary, begotten or to be begotten," as in the case of ' Sprackling 
 v. Rainer ;(c) children coming into existence after the death of the 
 testator would be excluded. 
 
 The last are cases of simple unqualified bequests to children : And 
 the rule which we have seen to apply to them, holds equally where 
 the gift is general to children, with a condition annexed to it dispo- 
 sing of a child's share upon its dying under the age of twenty-one. 
 The principle is this : The legacy being immediate to children, the 
 period of vesting and division unite at the same point ; viz. the 
 death of the testator ; whence it follows, that a child born after the 
 happening of such event, must be excluded. 
 
 Accordingly in Davidson v. Dallas, (d) the bequest was of 3000/. 
 to the children of the testator's brother Robert Davidson; and if 
 
 (z) Roberts v. Higman, 1 Bro. C. C. 532, in notes ; and see Heathe v. Heathe, 
 2 Atk. 122. Coleman v. Seymour, 1 Ves. sen. 209. 
 
 (a) 2 Bro. C. C. 658. 2 Cox, 190, S. C. (b) See infra, chap. 8, sect. 4. 
 (c) 1 Dick. 344. (rf) 14 Ves. 576, and see Scott, v. Norwood, 5 Madd. 332. 
 VOL. I. G
 
 50 Description of Legatees. [Cn. II. 
 
 either of them died under the age of twenty-one, the share was to go 
 to the survivors. Six children of Robert were living at the death of 
 the testator, and other two were afterwards born. The question was, 
 whether, as the eldest child had not attained twenty-one, (the sup- 
 posed period for division of the fund,) the two after-born children 
 were not entitled to parts of it. And Lord Eldon determined in the 
 negative- for the reason before-mentioned. 
 
 It is to be noticed in relation to the above case, that the distribution 
 of the legacy was not actually deferred until the children attained 
 twenty-one, a circumstance which makes it an exception to that class 
 of cases, after considered, in which children coming into esse between 
 the death of a testator, and the period of the eldest or youugest child 
 attaining twenty-one (the time when the fund was made divisible) 
 have been allowed to partake of it. 
 
 The principle which excludes children born after the testator's 
 death when the fund is distributable at that period, will also prevent 
 such children taking shares, notwithstanding the testatorhas direct- 
 ed part of it to be appropriated to secure the payment of annuities, 
 which for that reason cannot be divided at his decease with the re- 
 mainder. For although where the interest of a sum of money is be- 
 queathed to A. for life, and the capital at his death to the children 
 of B. all the children of the latter, born in the life-time of A. will 
 be entitled, (and not those only in existence at the death of the tes- 
 tator, as will afterwards appear ;) yet in the present case, as the ap- 
 propriation operates as a mere temporary separation of a part of the 
 fund to answer a particular object, and is no impediment to the divi- 
 sion of the remainder at the death of the testator, (the time when the 
 whole would unquestionably have been distributable if no such ap- 
 propriation of a portion of it had been directed,) the money, so set 
 apart to answer the particular purpose, must follow and belong to 
 the persons entitled to the property out of which it was taken, those 
 persons being such of the children of B. as were living at the death 
 of the testator. The following is an authority in confirmation jof 
 these remarks : 
 
 In Hill v. Chapman(e) the testator gave specific legacies in trust 
 for all the children of his daughter, Sarah by name, and then in ex- 
 istence, to sons at twenty-three, and to daughters at twenty-one, 
 with intermediate interest for their education, directing the surplus 
 to accumulate for the benefit of the legatees, until it became divi- 
 sible, with benefit of survivorship. He then proceeded to give the 
 residue of his estate in trust for all his grand-children by his said 
 daughter, to be applied for their benefit " as aforesaid." The tes- 
 tator afterwards gave by a codicil some annuities for life, directing 
 WOOL to be appropriated to answer them. A grand-child born after 
 the death of the testator, and in the life time of the annuitants, 
 claimed a share of the funds, which was attempted to be supported 
 on the circumstance of the 1000/. not being distributable while the 
 annuitants were alive ; whence it was contended that the effect of 
 the appropriation was to let in the after-born child not only to a share 
 of the WOOL but also to a share of the residue; and it was admitted 
 
 (e) 1 Ves. jun. 405. 3 Bro. C. C. 391. 5. C. ed. by Belt; and see Sineleton v. 
 Gilbert, 1 Cox, 68.
 
 SECT. I.] Description of Legatees. 51 
 
 on the part of the grand-child, that the phrase " as aforesaid," could 
 not by any thing to which it was applicable, have the effect of post- 
 poning the distribution of the residue to a period beyond the testa- 
 tor's death. And Lord Thurlow, C. decreed against the claim of 
 the grand-child, declaring that the whole residue was divisible at 
 the death of the testator; and that since grand-children only who 
 were living at that time were entitled, they alone could claim what- 
 ever should form part of it, as the 1000Z. would do upon the deaths 
 of the annuitants. And his Lordship observed, it would be repugnant 
 to say that one part of the residue so given should go one way, and 
 the other part (1000/.) another. 
 
 Although such be the general rule in regard to the exclusion of 
 children born after the testator's death, it is yet subject to alteration 
 from the intention of a testatqr appearing upon the face of his will. 
 If then the intention be manifest, (though not so directly expressed 
 in words) to include all the children of a particular person, that in- 
 tention will prevail, notwithstanding the terms of the gift would not 
 alone let in after-born children. The distribution, therefore, will in 
 such cases be deferred, in order, to let in all children, whensoever 
 born, to take shares of the fund. 
 
 An instance of this kind occurred under Mr. Shepherd's will(/) by 
 which he devised the residue of his real and personal estates to such 
 child or children as his daughter Frdnces Gibson should have, whe- 
 ther male or female, in equal shares, (a devise, which, as we have 
 seen, would not have permitted children coming in esse after the tes- 
 tator's death to have taken shares of the fund.) The testator then 
 declared, that if his daughter should die without such issue, the re- 
 sidue should go to C. Jefferson and Joseph Pike, in equal proportions. 
 By a codicil, he substituted Samuel Shepherd in the place of Mr. 
 Jefferson, and devised to them the residue in common for life, in the 
 event of his daughter's death, without leaving issue, but if she left 
 any child or children, he directed that as certain annuities he had 
 given by his will fell in, they should be divided among such children. 
 It appears to have been the opinions of Lords Hardwicke and Abr- 
 thington, that all the children of Mrs. Gibson which she might leave 
 at her death would be entitled. 
 
 The ground of their Lordships' opinions must have been, that since 
 the words of the bequest were sufficient to include all the children of 
 Mrs. Gibson, and his intention to do so was clear, from the ultimate 
 disposition of the fund upon the contingency of Mrs. Gibson's death 
 without leaving any child, that intention was to be performed, which 
 necessarily postponed the final distribution of the property until the 
 determination of Mrs. Gibson's life. If, indeed, it had been de- 
 cided that children coming in esse after the testator's death were ex- 
 cluded, this strange effect might have been produced; if Mrs. Gib- 
 son happened to have no child living when the testator died, but had 
 children at her decease, although they could not take any thing, yet 
 their existence would have prevented the limitation ever taking 
 effect, since it depended upon Mrs. Gibson's death without leaving a 
 
 (/) Shefiherd v. Ingram, AmbL 448. 1 Ves. sen. 485. by the names of Gibson v. 
 Rogers.
 
 52 Description of Legatees. [Cn. II. 
 
 child. Such a construction, therefore, would have made the tes- 
 tator die intestate. (g) 
 
 3. The question, whether a child in venire sa mere can take a share 
 in a fund bequeathed to children under a general description of 
 " children," or of " children living at the testator's death," does not 
 appear to have been finally settled previous to the decision of the 
 Court of Common Pleas in favour of the child, in the case of Doe v. 
 Clarke,(h) sent out of Chancery for the opinion of the Judges, and 
 "which case was to the following effect : 
 
 The testator devised the premises in question to his brother Henry 
 Clarke for life, remainder " to the use of all and every such child or 
 children, whether male or female, of his brother Henry as should be 
 living at the time of his decease, other than and except B. his (the 
 testator's) niece,- as tenants in commpn," &c. Henry Clarke, after 
 surviving the testator, left at his death three daughters, and his wife 
 pregnant with another daughter, who was born. The question was, 
 whether the daughter in venire sa mere at the death of- her father, 
 Henry Clarke, was entitled with her sisters, under the description in 
 the will, as a child living atHenry\s decease 1 ? And Eyre, C. J. said, 
 " I have no doubt on any view of this case. It is plain, from the 
 words of the will, that the testator. meant that all the children whom 
 his brother should leave behind him should be benefited: but inde- 
 pendent of this intention, I hold, that an infant in ventre sa mere, 
 who by the order and course of nature is living, comes clearly within 
 the description of" children living at the time of his decease." The 
 remarks of Buller, J. were, " In equity there are two classes of cases 
 upon the present subject: the first, where the bequest is in the 
 nature of a portion or provision for children, and there an after-born 
 child takes his share with the rest; of which class is the case of 
 Millar v. Turner.(i) The second, where the bequest arises from 
 some motives of personal affection; and there- it is confined to chil- 
 dren actually in existence. Of this second class was the case of 
 Cooper v. Forbes ;( k) which therefore makes a striking difference 
 between that and the present case. Here the bequest is not con- 
 fined to children living at the death of the testator, but it is kept 
 open till the death of his brother.. It seems, indeed, now settled, 
 that an infant en ventre sa mere shall be considered, generally speak- 
 ing, as born for all purposes for its own benefit."(l) In reply, the 
 Chief Justice observed, that the two-classes of cases in equity pro- 
 ceeded on a distinction which had always appeared to him extremely 
 unsatisfactory, and unfit to be the ground of any decision whatever. 
 
 It seems that the above decision of the Court of Common PUas, 
 and the approval of it by the Court of Chancery, have shaken the 
 authority of the second class of cases referred to. It was truly ob- 
 served, that the distinction made by the cases in equity, when a lega- 
 
 te) See the cases of Mills v, Abrra, 5 Ves. 335, and Defflis v. Goldschmidt, 
 1 Meriv. 417. stated infra, p. 59. 
 
 jun. 673. 5. C. 
 
 , .. Strange, 1 P. Will. 
 
 244. 341. 
 
 (*) 2 Bro. C. C. 63; and seeJEllison v. Airey, 1 Ves. sen. 111. Bennett v. JJonfy- 
 ivoocL, Ambl. 708. 711. and Pierson v. Garnet, 2 Bro. C. C. 38. 
 (0 See Doe v. Lancashire. S T. R. 49.
 
 SECT. I.] Description of Legatees. 53 
 
 cy is given to children as a portion, and when as a bounty., in re- 
 gard to the admission or non-admission of a posthumous child to a 
 share in the bequest, is too subtle and unsatisfactory. For when it 
 is considered how very inconsistent with probability it is, that when 
 a person bequeaths a legacy in such general terms as to " children," 
 or " to the children of #. living at JFs death," he should intend 
 those only to take who might be actually born at Jl's decease, and 
 that a child in ventre sa mere should be excluded merely because it 
 happened not to come into existence until a few days or weeks after 
 JFs death, it becomes a subject of surprise, how such a distinction as 
 we find in the cases should have ever prevailed. Besides, the con- 
 struction that a child en venire sa mere might take under so gene- 
 ral a description, was offering no violation to any rule of law, as in 
 most instances the law considers a posthumous child, the same as 
 if it had been born before the death of its father. A devise to it is 
 good.(m) It may be vouched in a recovery, although for the pur- 
 pose of answering over in value .(n] It may be the subject of mur- 
 der.(o) It may take under the statute of distribution as a child 
 living at the intestate's death. (jj) It may be entitled to the bene- 
 fit of a charge for raising portions for children living at the death of 
 the testator.(qr) An injunction may be obtained on its behalf to 
 stop the commission of waste. (r) It will prevent a remainder from 
 taking effect which depends upon the death of its father without 
 leaving issue. (s) A limitation to it for life, with remainder to its 
 first and other sons successively in tail, will, as.it seems, be a good 
 limitation ; which could not be so, unless a posthumous child were 
 considered in law a child in esse.(t) Upon the whole it appears to 
 be a right conclusion, that there is no solid reason why a child in 
 ventre sa mere should not be considered generally as in existence. 
 Modern authorities, and the solemn declarations of Judges in them, 
 and in other cases, are sufficient to authorize the proposition, " that 
 posthumous children are entitled to all the privileges and advanta- 
 ges which they would have enjoyed if they had been actually born 
 at the time their rights accrued." 
 
 In accordance with such proposition, the case of Rawlins v. Raw- 
 lins,(u) was determined. There the testator, after providing for his 
 daughter, bequeathed " to each and every of his other children then 
 born, or thereafter to be born, and who should be living at the time 
 of his decease, 5000JL a piece, &.c. The only question was, whether 
 a child en ventre sa mere at the death of the testator, and born seven 
 months afterwards was entitled ^ And the Chancellor decided in 
 the affirmative upon the authority of the before stated case of Doe v. 
 Clarke. 
 
 Since the preceding obseryations were written, it has been deci- 
 ded, that a child en ventre sa mere is entitled under the description 
 of a child born at the testator's death. In the case alluded to, the 
 testator bequeathed a legacy upon trust for all the children of A. 
 
 m) Scatterwoodv. Edge, iSalkt 229. (n) 1 Inst. 390, k (o) 3 Inst. 50, 51. 
 /z) Edwards v. Freeman, 2 P. Will. 446. Wallis v. Hodson, 2 Atk. 114. 
 y) Hale v. Hale, Pre. ch. 50. (r)Musgrave v. Perry, 2 Vern. 710. 
 } Burdet v. Hofiegood, 1 P. Will. 487. 
 
 (n Long v. Blackall, 3 Ves. 486. 7 Term Rep. 100. & C. and per Buller, 
 J. Thdlusson v. Woodjord, 4 Ves. 322. (u) 2 Cox, 425.
 
 54 Description of Legatees. [Cn. II. 
 
 " born in my life-time." And his Honour the Vice Chancellor de- 
 cided, that a child of which Jl. was enceinte at the testator's death, 
 was entitled to a share, (x) 
 
 The right of a posthumous child in a fund bequeathed to " chil- 
 dren" cannot be disputed, when the period of division is deferred 
 beyond the testator's death, and the child is born before that time 
 arrives. We shall therefore next consider 
 
 4. When children living at the time the fund becomes distributa- 
 ble after the testator's death, are and are not entitled in exclusion of 
 those born subsequently to that event. 
 
 It is now settled, that when legacies are given to a class of indivi- 
 duals generally, payable at a future period, as to the children of B. 
 when the youngest shall attain the age of twenty-one; or to be divided 
 among them upon the death of C. any child who can entitle itself 
 under the description at the time when the fund is to be divided, 
 may claim a share, viz. as well children living at the period of dis- 
 tribution, although not born till after the testator's death, as those 
 born before, and living at the happening of that event. This rule 
 is founded upon the anxiety of a Court of Equity, to effectuate the 
 intention of testators in providing for as many children as possible 
 with convenience. It therefore does not unalterably confine the 
 number to the time when the interests vest, which in general is at 
 the death of the testator, but prolongs the period to the happening of 
 an event upon which a determinate share of the fund becomes pay- 
 able.^) The following cases will confirm the preceding remarks ; 
 but which it will be convenient to consider under the following 
 heads : First, when the division is postponed until the children at- 
 tain a particular age ; and Secondly, when the distribution is defer- 
 red till the death of a particular person. And, 
 
 FIRST, when the division of 'the fund is postponed until a child or 
 children attain a particular age. 
 
 If a legacy be given to the children of A. at the age of twenty- 
 one, in that case, so soon as the eldest arrives at that period, the 
 fund is distributable among so many as are in existence at that time ; 
 and no child born afterwards can be admitted to a share, because 
 the period of division fixes 1 the number of the legatees. Distribu- 
 tion is then made, and nothing remains for future partition. (z) 
 
 In Gilmore v. Severn,(a) the testator bequeathed to the children 
 of his sister Jane, 350J. with interest, to be paid equally amongst 
 them as they severally attained twenty-one, with benefit of survivor- 
 ship. Jane had two children at the testator's death ; another child 
 was afterwards born during the infancy of the other two ; and the 
 Court was of opinion that since the after-born child came into exis- 
 tence before the eldest attained twenty-one, it was entitled to a share 
 of the legacy. 
 
 And in Prescott \.-Long,(b) the Court ordered the share of a child 
 to be paid who had attained the age of twenty-one, the rest being 
 
 (x) Trower v. Butts, 1 Sim. & Stu. 181. For cases of real estate, see White- 
 lock v. Heddon, 1 B. & P. 243. and Lancashire v. Lancashire, 5 T. R. 49. 
 
 (t/) 1 Ball & Beat, 459. 
 
 Ball & Beat. 459-483. Andrews v. Partington, 3 Bro. C. C. 402. See 
 also, Curtis v. Curtis, 6 Mad. 14. 
 (a) 1 Bro. C. C. 582, ed. by Belt. () 2 Yes. jun. 690.
 
 SECT. I.] Description of Legatees. 55 
 
 infants ; the effect of which would be to exclude after-born children. 
 In that case, the bequest was to trustees of 15,OOOZ. for the testa- 
 tor's grandsons George, Charles, and Thomas, and his grand-daugh- 
 ters, Augusta and Sophia, (the five children of his son Thomas Pres- 
 cott) and all the children of his said son equally. The shares of 
 sons to be paid at twenty-one, and of daughters at that age or mar- 
 riage, with consent: George having attained the age required, the 
 Court at his suit ordered his share to be immediately paid to him, 
 the period for the final division of the fund having arrived. 
 
 So in Hoste v. Pratt,(c) the testator, after directing a sale of his 
 real and personal estates, and payment of debts, &c. gave the re- 
 mainder of the proceeds and money to trustees, to place at interest 
 and apply a sufficient part of it for the maintenance and education 
 of all the children of Dixon Hoste and wife, until they attained 
 the ages of sixteen, at which times they were to receive the capital 
 equally. There were nine children, some of whom were born af- 
 ter the eldest child attained his age of sixteen. And the Court de- 
 termined that those after-born children were excluded from partici- 
 pating in the residue, since they were not in esse when the fund was 
 to be divided, viz. when the eldest child attained the age of sixteen ; 
 and the Chancellor remarked, that such construction was an ex- 
 tremely convenient one. 
 
 If, however, the period appointed by a testator for the distribu- 
 tion of the fund, be such as to admit of all children, whenever born, 
 that a particular person may have, they will be entitled ; for the 
 rule before stated, is not infringed upon in this instance. Thus, if 
 the bequest be to all the children of B. to be paid when the youngest 
 attains the age of twenty-one ; the period of distribution being post- 
 poned until the youngest child which B. may ever have, shall arrive 
 at that age, necessarily and properly lets in all the children of B. 
 
 This was determined in the cse of Hughes v. Hughes,(d) in which 
 the testator devised the residue of the rents and interest of his real 
 and personal estates, in trust, for the maintenance and education of 
 all the children of his three -daughters, Rebecca, Susanna, and De- 
 vereux, equally until the youngest of his said grand-children attain- 
 ed twenty-one ; and in the event of any of them dying before that 
 period, leaving legitimate children, such children were to be entitled 
 to the shares of their parents. And when such youngest grand- 
 child attained twenty-one, the testator gave a share of the capital to 
 such his grand-children as should be then living, and to the children 
 of such as should be then dead. At the testator's death, Devereux 
 had six children, and another child was afterwards born. Rebecca 
 had only one when the testator died ; but another afterwards. And 
 Susanna had four children at the testator's death, and two more 
 after that event. The question was, whether the children born af- 
 ter the decease of the testator, should participate in the fund with 
 those in esse at that period *? And Lord Thurlow decreed in the af- 
 firmative, upon the principle that the fund was to be kept entire un- 
 til the youngest child of the testator's three daughters attained the 
 age of twenty-one. 
 
 The following case is an authority that a child of a second mar- 
 
 (c) 3 Ves. 730. (rf) 3 Bro, C. C. 352. ed. by Belt, 14 Ves, 256.
 
 56 Description of Legatees. [Cn. II. 
 
 riage may take with children of a prior, although the first husband 
 were living when the will was made. So that if a legacy were given 
 to the children of Jl. to be paid at their ages of twenty-one, and Jl. 
 married again after the testator's death, and had a child by that mar- 
 riage, before the eldest of the first marriage attained twenty-one, 
 such child would be entitled to share the legacy with the children of 
 the former marriage. The case also proves, that in order to confine 
 the generality of the word "children," to those of the first marriage, 
 it must clearly appear/e) that the testator meant by the term " chil- 
 dren," those only of that marriage ; and that conjecture or private 
 opinion or belief of his intention to use the word in such a restricted 
 sense will be ineffectual. 
 
 Thus in Barrington v. Tristram,(f) Admiral Barrington be- 
 queathed 5000Z. three per cent, consols, in trust for all the children 
 of his niece, Mrs. Tristram, the wife of Thomas Tristram, in equal 
 shares ; to be vested interests in, and transferred to such of them as 
 should be sons, at twenty-one, and to daughters at that age, or on 
 marriage with consent, with benefit of survivorship, directing a suffi- 
 cient part of the dividends to be applied for their maintenance, 
 without any regard to the ability of their father ; but if any of them 
 died before their interests vested, leaving issue, it was to stand in the 
 place of its parent. And if all the children of Mrs. Tristram died 
 before they became entitled as aforesaid, and without leaving issue, 
 the 5000J. annuities were to be in trust for all the children of Bar- 
 rington Price, who should be living at the death of the surviving 
 child of Mrs. Tristram. The testator died soon after the date of his 
 will. Thomas Tristram died about a year before him, leaving six 
 children. Mrs. Tristram married again, and had one child, Louisa 
 Cooke, who claimed a share of the annuities. Against that demand 
 it was urged, if the construction were extended to a child coming in- 
 to esse after the death of the testator^it must also be extended under 
 the will, so as to give to the children of that child a proportion of the 
 fund, at the age of twenty-one, which would be prolonging the vest- 
 ing to a period beyond that allowed by law ; a difficulty which could 
 not occur if it were understood, children living at the testator's 
 death. To that argument, LordEldon answered,, that the rule being 
 long settled which lets in all children born before a share of the fund 
 is payable, the objection taken in this case, was no more than that of 
 a testator having given property to persons whom the law ascertains, 
 with a limitation over, which could not take effect; instances of 
 which occurred every day. And although his Lordship expressed, 
 as his private opinion, that the admiral never contemplated his 
 niece's second marriage, and that the objects of his bounty were her 
 children by Mr. Tristram, yet he considered that intention not to be 
 sufficiently clear upon which to found a judicial opinion against the 
 general words in the will. He, therefore, after expressing a strong 
 conjecture against that opinion in a judicial sense, declared, that 
 every child of Mrs. Tristram (then Cooke) should take, who might 
 come into existence before any of her sons attained twenty-one, or 
 any of her daughters attained that age or married, or any child mar- 
 ried and died under twenty-one, leaving issue, 
 
 (e) As in Salkdd v. Vernon, I Eden, 64. 71. (/) 6 Ves. 345.
 
 SECT. I.] Description of Legatees, 57 
 
 Besides the objection taken to the rule itself (before stated,) it is 
 obvious that there are circumstances in the last case affording strong 
 presumption, that the testator merely intended to provide for the 
 children of his niece by Mr. Tristram. It is tvue that in making the 
 gift to the children of his niece, he calls her " the wife of the Reve- 
 rend Thomas Tristram" which are words of mere description, and 
 from whence no inference whatever arises ; but a very probable con- 
 jecture results from the clause of maintenance directed to be allowed 
 the children without regard to the ability of " their father" that by 
 the term " father" Mr. Tristram then living was personally alluded 
 to, and consequently that the niece's children by him were alone in- 
 tended to take the provision. Lord Eldon, however, repelled the 
 presumption in observing, that there were no words to the above ef- 
 fect, and that the word " father" in the passage was insufficient to 
 prevent the application of the general rule. It may be also observ- 
 ed, that in the gift over of the fund, the exclusion of the children of 
 Barrington Price who should not be living at the death of the sur- 
 viving child of Mrs. Tristram, might induce a presumption that the 
 testator only meant children by Mr. Tristram, and so thought Lord 
 Eldon; but his Lordship remarked, it would be very difficult to 
 make out the title of the children of Barrington Price against those 
 of Mrs. Tristramby any other husband. 
 
 Since the rule excluding children from a participation in the pro- 
 perty, who are not in being when an eldest child attains twenty-one, 
 and then entitled to call for his share, is founded upon convenience 
 and necessity ; slight circumstances of intention to include all chil- 
 dren generally will not be permitted to form exceptions out of it. 
 If then a testator not only give a legacy to the children of A. at 
 twenty-one, but add the expressions " born or to be born," still a 
 child coming into esse after the eldest has attained the above age, 
 will be excluded. 
 
 Accordingly in Whitbread v. Lord St. John,(g) the bequest was 
 of 12,0001. to trustees, to apply the interest towards the education 
 of all the children of the testator's daughter, Lady St. John, during 
 their minorities, or until marriage with consent ; and the trustees 
 were directed to pay the principal " unto and among the child and 
 children of his said daughter by Lord St. John, born or to be born, 
 a* many as there might be, in equal shares," when and as they 
 should attain their ages of twenty-one, or be married with consent, 
 &c. ; with benefit of survivorship, and a limitation over, in the event 
 of all dying before twenty-one, or marriage, &c. There were four 
 children of Lord and Lady St. John, two of whom having attained 
 twenty-one, petitioned for their shares ; a request which could not 
 have been granted, if all the children that Lord and Lady St. John 
 might in future have were entitled to portions of the legacy. And 
 Lord Eldon ordered payment of two-fourths to the adult legatees 
 upon the foundation of the rule before mentioned. 
 
 Upon the authority of the last was decided the case of Gilbert v. 
 Boorman,(h) in which a residue was bequeathed to the plaintiff, 
 norninatim, and " all the other children hereafter to be born" of a 
 child of the testator, at their ages of twenty-one. The plaintiffhav- 
 
 ($0 10 Ves. 152. (A) 11 Ves. 238. 
 
 VOL. I. H
 
 58 Description of Legatees. [Cn. II. 
 
 ing attained that age, applied for the fund, which Sir William Grant 
 ordered to be paid, observing, that children born afterwards are 
 excluded of necessity when a partial distribution is to take place ; 
 though, if that circumstance did not prevent it, all would be entitled. 
 
 But as a testator may manifest his intention to include all the chil- 
 dren that an individual may ever have, where no period for division 
 of the fund is expressly appointed by him, and such intent will be 
 executed ;(i) so he may do in instances where, although the shares of 
 children are directed by him to be paid at twenty-one, the whole con- 
 text of his will shews distinctly, that he meant to provide for all the 
 children such individual might ever have : and upon this principle ; 
 that where the great object of a testator appears to be to include with- 
 in the terms of his bounty all the children of A. which is consistent 
 with a particular direction in the will, that would have the effect, if 
 followed, of excluding children born after the eldest child attained 
 twenty-one, as also defeat pther provisions in it, the latter must give 
 place to the former. (k) 
 
 It seems to have been upon such grounds that Lord Rosslyn de- 
 termined the case of Mills v. Norris ;(l) in which Mr. Moffat devised 
 his residuary real and personal estates, and their rents and interest, 
 equally among the children of his two daughters ; to be paid to sons 
 at twenty-one, and to daughters at that age, or upon marriage. (Here 
 we perceive the testator expressly declares that the fund is to be di- 
 vided when the children attain twenty-one, or marry ; a direction 
 which, if nothing more appeared, would, as we have seen, exclude all 
 children born after the marriage of a daughter, or the arrival of a 
 son at the age of twenty-one.) The will then declared, that if any 
 child married, and died before their mothers, leaving issue, they 
 should stand in the places of their parents ; and in case his daugh- 
 ters died without issue, or, having had such, they should die without 
 issue in the life-time of his daughters, the residuary fund should go to 
 the testator's brothers, James and Aaron Mojfat, absolutely. The 
 daughters had two children, who after the death of the testator at- 
 tained their ages of twenty-one. And Lord Rosslyn decided upon 
 the authority of Shepherd v. Ingham,(m) before stated, that all the 
 children which the daughters should have would be entitled, and that 
 a child that came in esse after the two children attained twenty-one, 
 was not excluded from a share of the capital. 
 
 It is obvious that the testator meant to provide for all children of 
 his daughters, and that the whole residue should go over to -his bro- 
 thers, if his daughters died without leaving a child, or the descendant 
 of a child. This great object would have been disappointed if the 
 fund became vested and distributable, upon the eldest child attaining 
 twenty-one, to the exclusion of after-born children ; for in such case, 
 if all the first class had died before their mothers, and they had left 
 the second class of children surviving them, then, although the 
 second description of children could take nothing, they would pre- 
 vent the fund going to the testator's brothers, and he would have died 
 intestate. 
 
 f i) Ante, p.51. (*) 1 Ball & Beat. 471. (/) 5 Ves. 335. 
 
 (m) Ambl. 448. and see observations sufira, p. 51 ; and the case of Huteheson 
 T. Jones, stated infra, p. 62.
 
 SECT. 1.3 Description of Legatees. 59 
 
 So also in Defflis v. Goldschmidt,(n) the testator bequeathed to all 
 the children of his sister Theobaldina, whether then born or there- 
 after to be born, 20001. each, payable at twenty-one ; directing the 
 shares of daughters marrying under that age to be properly settled, 
 and the interest, until the children's shares became payable, to be 
 paid to his said sister, for her separate use. He then requested his 
 executors to set apart a sufficient fund for paying the legacies to his 
 sister's children as they became due, and the intermediate interest to 
 his sister. And if his sister died before all her sons attained twenty- 
 one, or before all her daughters arrived at that age or marrried, the 
 testator directed a sufficient part of the interest to be applied for their 
 education and maintenance, and the remainder to be added to the 
 capital, &c. It was admitted that the terms of the bequest were 
 sufficient to include all the children of the sister, whether born be- 
 fore or after the testator's death ; and the difficulty of making an ap- 
 propriation to answer legacies given to an uncertain number of per- 
 sons, viz. all the children the sister might ever have, was urged 
 against the admission of children born after the death of the testa- 
 tor. But Sir William Grant, M. R. declaredthat such difficulty, if 
 it even amounted to positive impracticability, could not control the 
 express words of the testator's declaration ; and that his intention 
 not to exclude any of his sister's children must be complied with, even, 
 were it necessary, to the extent of impounding the whole residue. 
 
 SECOND. When the distribution of the fund is deferred during the 
 life of a person in esse. 
 
 The cases under this head are numerous, but they all agrae in es- 
 tablishing the general rule before stated, viz. when the enjoyment 
 of the thing given, is by the testator's express declaration not to be 
 immediate by those, among whom it is to be finally divided, but is 
 postponed to a particular period, as the death of A. then children or 
 individuals who answer the general description at that time, when 
 the distribution is to be made, are entitled to take, in exclusion of 
 those afterwards coming in esse. 
 
 Thus in Ellison v. Airey,(o) a woman bequeathed 3001. to Eliza- 
 beth Paxton, to be paid at her age of twenty-one or marriage ; but 
 if she died before the happening of either of these events, then to 
 the younger children of Francis Ellison equally. Some of Ellison's 
 children having been born before, others at the date of the will, and 
 the rest after the death of the testatrix, the question was, which of 
 the above classes were entitled to the legacy *? And Lord Hard- 
 ivicke was of opinion that all who should be younger children at 
 the death of Elizabeth before twenty-one or marriage, would be en- 
 titled to the 3001. 
 
 The principle which governed the decision was, that the legacy, 
 being contingent, and the fund not divisible before Elizabeth's 
 death before marriage or under twenty-one, there was no inconve- 
 nience in letting in the younger children of Mr. Ellison, who should 
 be born in the intermediate time. 
 
 So in the case of the Attorney General v. Crispin,(p) the testa- 
 trix, after giving several annuities, bequeathed, after the death of 
 
 n) 1 Meriv. 417. 19 Ves. 566. S. C. (o) 1 Ves. sen. 111. 
 
 ' ) 1 Bro. C. C. 386.
 
 60 Description of Legatees. [Cu. II. 
 
 the annuitants, 50Z. a piece to the children of D. Riviere. D. Ri- 
 viere then had seven children, six of whom died in the life of the 
 surviving annuitant. He also had a. daughter born after the death 
 of the testatrix, and during the life of that annuitant. One of the 
 questions was, whether the daughter born after, the testatrix's death 
 was entitled to a legacy of 50l}l And it was determined in her fa- 
 vour. 
 
 Also in Congreve v. Congreve,(q) Jinn Nicholls devised her real 
 estates to trustees in trust for her nephew T. Congrfve for life, and 
 to sell them after his death, and divide the proceeds among all his 
 children at the ages of twenty-one. The testatrix then gave her 
 personal estate to the same trustees to distribute among all the chil- 
 dren of her -said nephew equally at the same ages. The question 
 was, whether a child born after the testatrix's death, and who had 
 attained twenty-one, was entitled to a share *? And it was decided 
 in the affirmative. 
 
 The child, in the last case, must be supposed to have been born 
 before any other had attained the age of twenty-one ; for in regard to 
 the personal estate, the bequest is immediate to all the nephew's 
 children at that age, so that when the eldest arrived at that period 
 of life, the fund became distributable, to the exclusion of after-born 
 children, except of such as might then be in venire sa mere. And 
 with respect to the proceeds from the sale directed of the real estate, 
 there could be no doubt of the child's right to participate in them, 
 since it was in esse at the death of its father, the time appointed for 
 the distribution, all the children having attained their ages of twen- 
 ty-one. 
 
 The next is a case of frequent reference and of general authority 
 on this subject. In Devisme v. Mello,(r) Mr. Devisme made be- 
 quests by a codicil to the following effect : " I give a further sum of 
 5000Z. to purchase stock, and the interest to be paid to my mother 
 Marianne Devisme. At her death the interest to be paid to my 
 brother William Devisme, and at his demise to my godson Stephen; 
 at his decease, if before he be of age, to be divided among his bro- 
 thers equally." Again, " I give to my brother Lewis Devisme, 40001. 
 to buy stock, to enjoy the income during life, and if he do not marry 
 and leave children, to revert to my brother William's children in 
 equal parts." The testator died in November 1770. Stephen, his 
 godson and son of William, died an infant before his father, on the 
 26th of February 1770 ; and before the making of the codicil, leav- 
 ing William and James his two brothers ; and who were his only 
 brothers living at the date of the codicil, and at the testator's death. 
 Stephen had also two sisters, Elizabeth and Sophia, living at the two 
 last mentioned periods; but Sophia died in January 1774. Lewis 
 Devisme, the testator's brother, died in September 1776, unmarried 
 and without issue, at which time William his brother, had no chil- 
 dren living, except William, James, and Elizabeth. Marianne De- 
 visme, the mother, died in February 1779 ; and William Devisme 
 the brother, in February 1781, leaving children, William, James, and 
 
 (9) 1 Bro. C. C. 530. and see Bartlett v. Hollister, in a note to the last case, S. 
 P. and Gilmore v, Severn, 1 Bro. C. C. 582. 
 (r) 1 Bro. C. C. 537. ed. by Belt.
 
 SECT. I.] Description of Legatees. 61 
 
 Elizabeth, and another son Andrew, who was born in October 1778, 
 after the testator's death, and after the death of Lewis Devisme, the 
 brother. The questions appear to have been two ; first, whether 
 Andrew was entitled with his brothers to a share of the legacy of 
 5000/. given to his brother Stephen, although not born till after the 
 deaths of the testator and of Stephen. And Lord Thurlow decided 
 in the affirmative, upon the principle, that as Andrew was born be- 
 fore the distribution of the fund, the division not being to take place 
 during the life of his father William, he wa's entitled to a part of it. 
 The' second question seems to have been, whether Elizabeth, the 
 sister and personal representative of Sophia, the daughter of the tes- 
 tator's brother, William Devisme, was entitled to any part of the 
 legacy of 40001. bequeathed to William's children at the death of 
 Lewis, as Sophia died during the life of Lewis ? And his Lordship 
 determined in Elizabeth's favour. 
 
 It may be inferred from the silence of the report in regard to any 
 supposed interests of Stephen and Andrew in the 40001. that it was 
 considered they had none, since both of therrt were born after the 
 death of Lewis, the tenant for life. And this case is an authority 
 that, if a child come in esse previous to the death of a tenant for life 
 of the fund, it takes a vested interest ; which, in the event of its dy- 
 ing before such tenant, will entitle its personal representative to a 
 portion when the property becomes distributable. 
 
 It follows from the preceding authorities, that if the bequest be 
 not to children generally, but to a child to be born, particularly de- 
 scribed, and intended to take the legacy upon the death of a per- 
 son to whom it is previously given for life, or for a determinate pe- 
 riod, it must not only answer the description, but be in existence 
 when the event, upon which it is to take, happens. For if a legacy 
 be given to B. for life, and then to the eldest child of C. and if he 
 have none, then to D. should C. have no child at the death of B. 
 but one is afterwards born, it will be excluded, and D. will be enti- 
 tled to the money. As an example of this : 
 
 John Cree, after bequeathing several annuities, proceeded, " And 
 the first annuities of the great ones which falls in, I desire may de- 
 volve upon the eldest child, male or female, of William Harwood for 
 life." He then gives directions relative to the interest of his pro- 
 perty in the event of its sufficiency or insufficiency to answer the an- 
 nuities ; and bequeathed the annuities as they fell in, except two, to 
 the surviving annuitants. Upon the death of the survivor he gave 
 the whole property to the heirs male of Philip Francis, and in de- 
 fault of issue, to the female branch of the family of Philip Francis. 
 Two annuitants of 2001. and 3001. died a few years after the testa- 
 tor ; and Clara, the only legitimate child of William Harwood, 
 claimed the latter annuity, though not born till after the death of 
 the first annuitant ; but her claim was disa^lowed(s) upon the au- 
 thority of the case of Devisme v. Mello, before stated. 
 
 The principle which founded the last decision seems to be this ; 
 that if a child, not in esse when the will is made, be described and in- 
 tended to take a testamentary gift, upon the death of a person, and 
 there are subsequent executory limitations of the property, and the 
 
 () Godfrey V.JJavis, 6 Ves. 43. 48.
 
 62 Description of Legatees. [Cn. II. 
 
 child should not be born till after the person's decease, he will not be 
 permitted to claim the legacy ; for the policy of law is in favour of 
 vested interests ; and the law will not in this case suspend the rights 
 of subsequent legatees on account of the possibility of a prior legatee 
 coming into existence who would be entitled, but who, by not being 
 in esse to take in succession, was incapable of accepting the bequests 
 at the period intended by the testator. 
 
 The cases which have been stated are sufficient to establish the 
 rule before mentioned in regard to the admission or exclusion of after- 
 born children. And the authorities which have been determined in 
 conformity with them, are referred to in note(). 
 
 But here we may remark, as in the instances before produced, that 
 where a testator's intention is clear, that all the children, a specified 
 individual may ever have, shall participate in a legacy given to them, 
 upon the contingency of some third person dying before a particular 
 period, and that contingency happens ; in such a case not only the 
 children in existence at the happening of the contingency shall be 
 entitled, but those also who come into esse during the life of their 
 parent, but after the happening of such contingency. 
 
 Thus in the case ofHutcheson v. Jones,(u) in which Edith Hutche- 
 son, being entitled to the reversion of a moiety of freehold estates, 
 expectant on the death of William her father, bequeathed 500Z. out 
 of that estate (which she devised to her sister Jinn Jones] to her niece 
 Maria Hutcheson, daughter of her brother Robert ; to be paid when 
 convenient to Jinn Jones, with interest from three months after the 
 testatrix's death. And after such payment she directed the money to 
 be placed at interest and paid to Maria Hutcheson upon her marriage, 
 or at the age of twenty-one. " And should Maria not survive either of 
 those periods, and there be no child orchildren of Robert Hutcheson, 
 then the testatrix would have the 500/. revert to Jinn Jones ; but in 
 case of other children of Robert Hutcheson, she would have the 
 said sum equally divided, share and share alike." Upon the death of 
 William Hutcheson, the tenant for life, Philip Jones and his wife 
 Jinn entered into possession of the estates. Afterwards Maria Hut- 
 cheson, died under age, and without ever having been married. Then 
 Robert Hutcheson died, leaving a son William, born after Maria's 
 death, and the plaintiff, B. Hutcheson, a child of a second mar- 
 riage. The question was, whether William, the son, and the plain- 
 tiff, were entitled to the 500/. they not being in esse at the death of 
 Maria Hutcheson^ And Sir Thomas Plumer, V. C. determined in 
 the affirmative. 
 
 His Honour, in detailing the reasons for his decree, observed, that 
 the fund was reversionary, which was a strong circumstance : that it 
 appeared to have been the testatrix's intention, that Mrs. Jones 
 should not take, unless, according to the words of the will, " there 
 should be no child or children of Robert Hutcheson;" that he could 
 not declare the fund to revert to her on the death of Maria, unless 
 
 (0 Graves v. Boyle, 1 Atk. 509. Haughton v. Harrison, 2 Atk. 329. Middle- 
 ton v. Messenger, 5 Ves. 136. Pulsford v. Hunter, 3 Bro. C. C. 417. Ay ton v. 
 Ayton, 1 Cox. 327. Paul v. Comfiton, 8 Ves. 375. Walker v. Shore, 15 Ves. 
 122. Tebbs v. Carpenter, I Mad. 290. Crone v. Odell, 1 Ball & Beat. 449. 
 
 (M) 2 Madd. 124.
 
 SECT. I.] Description of Legatees. 63 
 
 he were to add the words " born at her death ;" and that if after-born 
 children were excluded, it must be against the express words of the 
 will, which only gave the money to Mrs. Jones, in the event of there 
 being no child or children of Robert Hutcheson. 
 
 We shall next consider 
 
 5. The instances where, in order to answer the occasions of fami- 
 lies, and the intent of parties, " younger children" have been con- 
 strued to mean, -such children only as were not entitled to the family 
 or real estate. Accordingly, in cases of provisions made by parents, 
 or persons in loco parentum, for younger children either by deed or 
 will, the family estate being limited to the eldest son and his issue, 
 remainder to his brothers and their issues successively, a younger bro- 
 ther eventually becoming entitled to the family estate before the por- 
 tions were payable, has been considered an eldest child, so as to 
 exclude him from the benefit of the provision for youngest children. 
 
 The leading case upon this subject is Chadwick v. Doleman;(x) 
 in which Sir Thorhas Doleman having a poweV by marriage settle- 
 ment to appoint portions among younger children, to be raised within 
 six months after his death, appointed 2600/. part of the aggregate sum 
 to Thomas, describing him as his second son. The eldest son after- 
 wards died without issue ; upon which event Thomas becoming the 
 eldest, and succeeding to the estate, hi& father made a new appoint- 
 ment of the 2600Z. among his then younger children ; and the only 
 question was, whether the first or second appointment should stand ? 
 And it was determined in favour of the latter, upon the ground, that 
 Thomas's continuing a younger child up to the period of the pro- 
 vision taking effect in point of payment, was a tacit or implied con- 
 dition, going along with the appointment, and that as such condi- 
 tion failed, the first appointment to Thomas must be considered 
 nugatory, and that therefore the second appointment must be estab- 
 lished.^) 
 
 The last case was approved by Lord Hardwicke in that of Lord 
 Teynham v. Webb,(z) in which a grandmother, acting in loco pa- 
 rentis, provided portions for her younger grand-children to be raised 
 after the deaths of herself and daughter, Lady Dudley, and to be 
 subject, as to the proportions, to the appointment of Lord Teynham, 
 the father of those children ; but if he made no appointment, the 
 fund was to be divided among them equally. His Lordship had 
 three chiftlren, Philip, Mary, and the plaintiff, and he died without 
 making an appointment. Philip, the eldest son, afterwards died 
 during the life of his grandmother, and the plaintiff becoming the 
 eldest son, succeeded to the title and estate. The question was, 
 whether he was entitled to a share in the fund provided as portions 
 for younger children *? And Lord Hardwicke determined in the 
 negative ; observing, that the father's death without appointing 
 made no alteration in the rule prevailing in those cases ; but that 
 the same condition was to be implied in the direction in default of 
 appointment, as in the execution of the power, for " younger chil- 
 dren" could not be construed to mean one thing in case of default 
 of appointment, and another in the execution of the power. 
 
 The two last cases were followed by Hall v. Hewer,(a) Loder v. 
 
 (or) 2 Vern. 528. (t/)See 2 Ves. sen. 211. (z) Ibid. 198-210. (a) Ambl. 203.
 
 64 Description of Legatees. [Ca. II. 
 
 Loder,(b) before Lord Hardwicke ; by Broadmead v. Wood,(c] be- 
 fore Lord Thurlow; by Lady Lincoln v. Pelham,(d') before Lord 
 Eldon, a case resembling that of Lord Teynham v. Webb, in the 
 circumstance of a grandmother being the provider of the portions ; 
 by Bowles v. Bowles,(e) before the same Judge ; and by Matthews v. 
 Paul,(f) before Sir Thomas Plumer. In all these cases the deter- 
 minations agreed with the two last stated. 
 
 It is to be remarked, that the several authorities before-mentioned 
 and referred to, were cases where the change of character from a 
 younger to an eldest son occurred previous to the period when the 
 funds became distributable. This observation is important ; for if 
 the time of division arrive before a younger become an eldest child, 
 distribution will be considered as having been made at the appoint- 
 ed period, and then the change in the description of the younger 
 child will have happened too late to prejudice the interests which 
 he took while he continued in that character, (g) except under very 
 special circumstances, an instance of which occurred in Leake v. 
 Leake,(h) a case of great complexity. It appears that John, a 
 younger son, retained that description at the death of his father, and 
 as such, was entitled, with other younger children then living, under 
 the father's will and codicil (after bringing into hotchpot advance- 
 ments made to him and them by their father during his life, so as to 
 place all of them upon a perfect equality,) to a share of the father's 
 residuary estate, which was so given ad to be distributable among 
 younger children at the father's death, and which was accordingly 
 so divided by their mother. After this, and while the mother was in 
 existence, John became an eldest son, and succeeded to estates charg- 
 ed by marriage settlement with portions for younger children to be 
 raised after the mother's death, the amount of each child's share to 
 be regulated by advancements which might have been made to them 
 by their father, whilst living, as directed, in regard to his residuary 
 estate given by his will and codicil. John, notwithstanding his 
 change of character in the life-time of his mother, from a younger to 
 an eldest child, was directed by Lord Eldon to be considered as a 
 younger child in the account to be taken among the younger chil- 
 dren ; thus necessarily entitling him (though no longer a younger, 
 but the eldest) to a share of the money now to be raised for younger 
 children under the settlement, the mother being dead ; and also 
 bringing again into account the residuary estate long before distri- 
 butable, and distributed while John was one of the younger children : 
 two circumstances, which, taken in the abstract, would have shaken 
 the rules before considered to be established by preceding cases. 
 But Lord Eldon formed his opinion and judgment upon the father's 
 intention apparent in his settlement, will, and codicil, to provide and 
 make equal provision for all his younger children, as well those liv- 
 ing at his own as at his wife's death, and who, with that view, had 
 disposed of the whole of his property in relation to the portions to 
 be raised under the settlement ; an equality that could not be at- 
 
 () 2 Ves. 531. (c)'l Bro. C. C. 77. (d) 10 Ves. 166-172. 
 
 ! M 10 Ves. 177. and see Savage v. Carroll, 1 Ball & Beat. 265. 
 
 (/) 2 Wils. C. C. 64. (V) 1 Ball & Beat. 278. 2 Ves, sen. 211. IVindham. 
 
 v. Graham, 1 Russ. C. C. 331. (A) 10 Ves. 477.
 
 SECT. I.] Description of Legatees. 65 
 
 tained without John's accounting with the other younger children 
 for the share he received of his father's residuary estate, and the 
 advancements made to him as a younger child ; for if those ad- 
 vancements exceeded his portion by settlement, the difference was 
 either to be supplied to the other children out of his share of the 
 residue, or the perfect equality designed by the father must have 
 been disappointed. This case is therefore an exception only to the 
 general rules before stated ; and it was so considered by Lord Man- 
 ners, Chancellor of Ireland, in Savage v. Carrol.(i) 
 
 6. When an Eldest or only child considered a Younger. 
 
 Every child but the heir is looked upon as a younger child in a 
 Court of Equity. On which principle it is, that an " eldest daugh- 
 ter," destitute of a provision, has been considered a younger child, 
 to answer the general intention, although not literally falling within 
 the description. 
 
 Accordingly in Beale v. Beale,(k) A. being tenant for life of an 
 estate, remainder to such woman as he should marry, remainder to 
 his first and other sons in tail male, with remainder to B. his bro- 
 ther in fee, was empowered to charge the land with 2000Z, for the 
 portions of younger children living at his death. A. married, and 
 had issue two daughters, but no son, and the second daughter was 
 in venire sa mere at his death. He charged the estate by will with 
 2000Z. for those two children, payable at their ages of twenty-one. 
 And it was objected, that the eldest daughter could not claim any 
 part of the money, because she was not a younger child ; and that 
 the other had no title, as she was not born at her father's death. 
 But Lord Harcourt, C. determined in favour of both of them, on the 
 ground that the estate being the property of B. the remainder-man, 
 the daughters were unprovided for, and in such a case the eldest 
 daughter was to be considered in equity a younger child ; and her 
 sister being in ventre sa mere at her father's death was to be regard^ 
 ed as a child living at that period. 
 
 So in Butler v. Duncombe,(l) Lord Parker, C. decided where the 
 only issue of the marriage was a daughter, that she was entitled to a 
 portion provided for younger children, as otherwise she would have 
 been left destitute, the real estate descending in another channel. 
 
 Lord Hardwicke made a similar decree in Heneage v. Hunloke,(m) 
 a case attended with this particularity, that a settlement was made 
 of freehold houses to uses, which, according to articles preceding 
 the marriage, ought to have been trusts. By them, 13001. were 
 directed to be invested in South Sea annuities, in trust after the 
 death of the surviving parent for the younger child or children. The 
 only issue of the marriage were a son and daughter; and his Lord- 
 ship observed, that the present case differed from preceding autho- 
 rities in this particular, that the limitations were legal, and his re- 
 collection furnished him with no instance where a Court of Equity, 
 under such a circumstance, adopted the construction of an eldest 
 daughter or child being considered a younger. For the limitation 
 being legal, must, as he conceived, receive the same construction in 
 equity as in a court of law ; and since at law, he doubted whether 
 
 (0 1 Ball & Beat. 279. (*) 1 P. Will. 244. (/) 1 P. Will. 449-451. 
 
 (m) 2 Atk. 456. and see Pierson v. Garnet, 2 Bro. C. C. 38-47. S. P. 
 VOL. I. I
 
 66 Description of Legatees. [Cn. II. 
 
 an eldest child would be permitted to recover under a limitation to a 
 younger; his opinion seems to have been, that had the question 
 rested upon the settlement alone, a Court of Equity could not have 
 applied its rule, before mentioned, where the property was equitable, 
 so as to give the houses to the eldest child under a limitation to a 
 younger. But Lord Hardwicke surmounted this objection by re- 
 ferring to the articles, which were executory, and ought to be per- 
 formed according to the intention of the parties, which was to pro- 
 vide for all the children, except an eldest son ; a construction which 
 entitled the daughter, though in seniority the eldest child, and his 
 Lordship added, that the Court would rectify the mistake in prepa- 
 ration of the settlement. 
 
 7. The principle which entitles a daughter, who is the eldest 
 child, to a portion provided for a younger, will enable an " eldest 
 son" to claim a portion as a younger child, when the family estate 
 is given from him, or he is otherwise unprovided for. 
 
 Thus in Emery v. England,(n) John England bequeathed to his 
 brother and sister, Joseph and Sarah, all his effects, if his sister 
 Mary had no child at his death, or within a year afterwards; but if 
 she had any, such child or children at either of those periods, he 
 gave one-third of his property to the youngest. The other two- 
 thirds he gave to Joseph and Sarah equally, with benefit of survivor- 
 ship, between them, if either died before him, unless Sarah had a 
 child or children, in which event, her third was to belong to her 
 youngest child, otherwise to her; and Joseph's third was to be 
 divided between Sarah or her youngest child, and Mary's youngest 
 child. John was the only child of Mary living at the testator's 
 death. She had other children, but none of them were born within 
 a year after the decease of the testator, and were therefore excluded. 
 The question was, whether John, though the eldest child, could 
 claim the third bequeathed to the youngest child of Mary. And 
 Lord Rosslyn, without argument, decided in the affirmative. 
 
 The last is a case in which the provision was made by a collateral 
 relation, intending to provide for all the members of his family, and 
 therefore to be considered as placing himself in loco parentis. Such 
 also was the case next to be stated, and *the Court alluded to the 
 distinction to be attended to when the provisions are made by a 
 stranger for younger children, and by parents or collateral relations, 
 whose duty and intentions are to provide for the several branches of 
 their families. 
 
 The case alluded to is, Duke v. Doidge,(o) in which Richard 
 Doidge the elder, and Richard his eldest son, created a term of 
 1500 years in an estate, to commence from their deaths without 
 issue male, in trust, if Thomas (Richard the elder's brother) then 
 had one or more children, to raise portions for them, not exceeding 
 1500Z., as the surviving Richard should direct, and in default of 
 appointment, to raise that sum for such children in equal shares, 
 payable at the end of six months after the term began ; but if no 
 such younger children were living at the commencement of the 
 term, &c. it was to be surrendered. The estate was limited upon 
 
 (n) 3 Ves. 232. (o) 2 Ves. sen. 203. in a note.
 
 SECT. I.] Description of Legatees. 67 
 
 the determination of the term to the use of such son of Thomas as 
 the two Richards or the survivor should appoint; and in default of 
 such issue or appointment, to the first and other sons of Thomas 
 successively in tail male; remainder to the right heirs of Richard 
 the elder. The last-named Richard and his brother Thomas, died 
 before Richard the younger, who limited the estate after the deter- 
 mination of the term to Richard, Thomas's third son, in tail male, 
 and then 'died without issue, or appointing any sum to be raised 
 under the term for the younger children of Thomas. The children 
 of Thomas, when the term commenced, were four ; George, Robert, 
 Richard (the third son to whom the estate was limited,) and Ann. 
 George, although the eldest son, claimed a share of the 1500Z. as a 
 younger child, and the validity of his title was the only question. 
 The Court determined in his favour. 
 
 In the last case the Court said, it did not, as between parent and 
 child, consider the words " elder," or " younger," and that an eldest 
 child unprovided for, should take as a younger' Also, that there 
 was no difference in this respect when the provision proceeded from 
 a collateral relation intending to provide for all the branches of his 
 family, as Richard the elder clearly meant to do in the present in- 
 stance. 
 
 It appears from th PRSPS which have been stated and referred to, 
 that the persons settling or bequeathing to younger children, were 
 either their parents or relations, who may be considered in loco pa- 
 rentis, and intending to provide for all the children of the person 
 described. The Court, therefore, rejected the words " younger" or 
 " youngest," " elder" or eldest," for the purpose of letting in a 
 child not answering the description, who would otherwise have been 
 unprovided for, contrary to the intention of the person whose duty 
 it was to have left it a maintenance, or of the person who had taken 
 upon himself the performance of that obligation. But when there is 
 no such relation between the donor or devisor and the children, either 
 real or assumed, it may be inferred from several of the following 
 cases, that a Court of Equity will require a child claiming part of a 
 sum bequeathed to younger children to answer the description. Such 
 was the opinion of Lord Hardwicke in Hall v. Hewer,(p) after the 
 case had been argued before him, and which was to the following 
 effect : Robert Hewer devised lands to trustees for a term of years, 
 to raise G,OOOZ. which, by a codicil, he directed to be paid to the 
 younger children of a Mr. Hall, if his brother John Heiver died with- 
 out children. He devised his real estate to John Hewer for life, re- 
 mainder to John's first and other sons in tail male, remainder 
 to daughters in tail, with remainder to Humphrey, second son of 
 John Hall, in fee. James the eldest son of Hall, died before 
 John Hewer, who also died without children, so that Humphrey 
 became the eldest son of Hall; and he nevertheless claimed a 
 part of the 6,OOOZ. bequeathed to Hall's younger children. But 
 Lord Hardwicke determined, that as Humphrey became an eldest 
 son before the 60001. were distributable, he was excluded. And 
 upon it being urged at the bar, that Humphrey was to be con- 
 
 (p) AmbL 203.
 
 68 Description of Legatees. [Cii. II. 
 
 sidcred as an eldest son, quoad hoc, because the testator had given 
 to him the inheritance of the estate, his Lordship said, " there was 
 no case where the Court had considered a younger child as an 
 eldest ; but between parent and child, or persons who stood in loco 
 parentis." His Lordship's observation in regard to preceding cases 
 seems to be correct; and it does not appear that any subsequent 
 authority has impeached his opinion upon this subject. 
 
 The same principle which leads a Court of Equity to consider a 
 younger child an eldest, or an eldest child a younger, also induces 
 it to overlook other descriptions applied to children which they ac- 
 cidentally do not answer, where a parent intends to provide for all 
 his offspring. If then a father bequeath a portion to a child in ventre 
 sa mere, by the terms " posthumous child," and he happen to sur- 
 vive its birth, the accident will not deprive the infant of the intend- 
 ed provision. 
 
 This was determined in Jaggard v. Jaggard,(q) where a testator 
 being indisposed, and his wife enceinte, made his will, and gave to 
 a daughter then living, 15001. but if his wife should have a.posthu- 
 mous daughter, it was to receive 5001. of the 1500i. The wife 
 having been delivered of a daughter during the life of the testator, 
 which prevented the child from answering the description of posthu- 
 mous, the question was, whether she was entitled to the 500J. 1 ? And 
 Lord Somers declared, that the second daughter, although bora 
 during the life of her father, was to be considered a posthumous 
 child within the meaning of the will. 
 
 But in general no rule is better settled, than that legatees must 
 answer the description and character given of them in the will ; so 
 that a bequest to the seventh child of B. will not entitle an eighth, 
 who, by the death of the seventh child before the testator, becomes 
 the seventh. 
 
 This was carried to a great extent in the case of West v. The 
 Lord Primate of Ireland,(r) in which the testator bequeathed by 
 codicil in these words ; " I desire that my executor would at his 
 decease bequeath 100 guineas to Lord Cantalupe for the use of his 
 seventh or youngest child, in case he should not have a seventh 
 living." His Lordship had six children at the date of the codicil, 
 and another, born previous to the codicil, was then dead. Two 
 months after the testator's death, Lord C. had another son born, 
 whom he named Septimus, and afterwards other children came into 
 esse, the youngest of which was called Matilda. The question was, 
 whether Septimus, or Matilda, the youngest child of Lord C. was 
 entitled to the legacy? And Lord Thurlow was of opinion, that as 
 Septimus was in fact the eighth child, he could not take by the de- 
 scription of seventh. He therefore decreed the money to Matilda; 
 a decree which he affirmed upon a re-hearing. 
 
 It is presumed that the last must be considered an exceedingly 
 strong case, when the number of children Lord Cantalupe had at 
 the date of the codicil, and the prospective nature of the bequest, 
 are contemplated. The sense in which the testator used the word 
 seventh cannot be doubted. It was not in relation to the number of 
 
 (?) Pre. Ch. 177. (r) 3 Bro. C. C. 148. 2 Cox. 258. & C.
 
 SECT. I.] Description of Legatees. 69 
 
 children his Lordship might have had previously to the codicil, but 
 a seventh in reference to the number living when that instrument was 
 made, which were six. Septimus, therefore, appears to have been 
 the person designated and intended by the testator ; and in this view 
 of the case he answered the description of seventh child of Lord C. 
 if he should have one. If these remarks be just, probably a similar 
 case would at present receive a different determination. 
 
 Of such importance is it for a legatee to answer the terms of the 
 bequest, that if he do so, he may even make a good title to the 
 legacy or portion, notwithstanding it may appear contradictory to the 
 testator's intention. An instance of this occurred in the following 
 case : 
 
 In Trqfford v. Jlshton,(s] Mr. Vavasor devised all his estate in 
 trust for his daughter for life, remainder to her second son to be be- 
 gotten in tail male, and so to every younger son ; remainder to her 
 eldest daughter, and the first son of her body ; the testator apologizing 
 for omitting the eldest son from the expectation he entertained of his 
 daughter marrying so prudently as to ensure a provision for such 
 son. The daughter married Sir Ralph Jlshton, and had children, 
 Edmund, the eldest, Richard and Ann Trafford. Edmund died 
 shortly after his birth, and then Richard was born, who was the only 
 and eldest son of Lady Jlshton. The question was, whether he was 
 entitled, under the description " second son," to Mr. Vavasor's 
 estate ^ And it was determined in the affirmative ; the Chancellor 
 observing, that second son was second in the order of birth : Richard 
 therefore answering that description, was entitled, although it was 
 contrary to the testator's intention. ^_VJ^L^^J^. X- 
 
 We shall proceed in the next place t6 consider 
 
 8. When grand-children, &c. may and may not take under the 
 word " children." 
 
 The word " children" does not, ordinarily and properly speaking, 
 comprehend grand-children, or issue generally. Their being in- 
 cluded in that term is only permitted in two cases, viz. from necessity, 
 which occurs where the will would remain inoperative, unless the 
 sense of the word " children" were extended beyond its natural im- 
 port : and where the testator has clearly shown by other words, that 
 he did not intend to use the term " children" in its proper actual 
 meaning, but in a more extensive sense. By these tests questions 
 upon the present subject are to be examined and determined. It 
 will therefore be convenient, for the sake of perspicuity, to begin 
 with considering 
 
 FIRST, where the word " children" was extended beyond its natural 
 import from necessity. 
 
 Referrible to this head is Wylde's case,() where, upon a devise to 
 a man and his children, it was held, if there were no children at the 
 date of the will, the father would take an estate tail; and children 
 would mean issue ; for it was- evident something was intended for 
 children : but none being in esse, they could take nothing except 
 through the father ; and he could transmit to them nothing, unless 
 he had an estate of inheritance. It was necessary, therefore, to con- 
 
 (s) 2 Vern. 660. 1 Eq. Ca, Abr. 213, pi. 8. 5. C. (/) 6 Rep. 16.
 
 70 Description of Legatees. [Cn. II. 
 
 strue the word " children" issue, on account of the general apparent 
 intention, (w) 
 
 It was necessity, therefore, that in the last case converted the 
 word " children" into a word of limitation ; a construction never to 
 be put upon that term except for the purpose of giving operation to 
 the will, and effectuating the testator's intention ; for the word 
 " children" is naturally one of purchase, as observed by Lord Hard- 
 wicke in Bujfarv. Bradford,(x) and so he determined in that case, in 
 declaring that a bequest made to a mother and her children (she 
 having a child after the? date of the will, who survived the testator) 
 did not lapse by the mother's death in the life-time of the devisor, but 
 belonged to the child ; upon the principle, that the legatees took as 
 purchasers in joint tenancy ;(y] a judgment which could not have 
 been pronounced if the child had taken by representation through its 
 mother. 
 
 SECONDLY, instances where a testator, by using the words " chil- 
 dren" and " issue" indiscriminately, showed his intention to use the 
 former term in the sense of issue, so as to entitle grand-children, &c. 
 to take under it. 
 
 In Wythe v. Blackman,(z) Colonel Thurston, by a voluntary deed, 
 limited real estate after the death of himself and nephew John, and 
 failure of estates in tail male to John's first and other sons, to four 
 persons, Lady Chacy, Mrs. Wythe, and Mrs. Blackman (his three 
 sisters,) and the fourth was his niece (daughter of a deceased bro- 
 ther,) to sell and divide the money and mesne profits among them- 
 selves (naming them,) or the respective issues of their bodies, if they 
 or any of them should be dead, upon the failure of such issue male of 
 John, viz. to each of them, or their respective children, a fourth part. 
 But if any of them should be dead without issue, on such failure of 
 issue of John, then to the survivors or their respective children equal- 
 ly, if any of them should be dead leaving issue. John survived the 
 testator, and died after being in possession of the estate, and without 
 issue. The three sisters and niece died before John, the niece leav- 
 ing no issue ; but at the death of John, Lady Chacy had three chil- 
 dren, Mrs. Wythe both children and great grand-children, and Mrs. 
 Blackman grand-children only. One of the questions was, whether 
 the children of Lady Chacy and of Mrs. Wythe were entitled to have 
 the whole estate divided among them in two shares ; or whether the 
 grand-children of Mrs. Blackman, and the great grand-children of 
 Mrs. Wythe, were entitled to participate with them l A question 
 turning upon the point, whether the import of the word " issue" was 
 to be restrained by that of " children," or the import of the word 
 " children" was to be enlarged by that of " issue" *? And Lord Hard- 
 wicke determined, that children, grand-children, and great grand- 
 children, were collectively entitled. 
 
 His Lordship founded his decree upon the special circumstances 
 of the case. He commented upon the great length of time which 
 
 () 10 Ves. 201. (x) 2 Atk. 221. 
 
 (y) See chap. 8. on lapsed legacies, and title "Joint Tenants." 
 
 (z) 1 Ves. sen. 196. reported in Ambl. 555. by the names of Wythe v. Thurls- 
 
 ton, and stated by Lord Mvanley from Reg. Lib. in Davenport v. Hanbury. 3 
 
 Ves. 258.
 
 SECT. I.] Description of Legatees. 71 
 
 might have elapsed before the trust fund became divisible, and on 
 the apparent intention of the settler, not only to provide for his sis- 
 ters and niece, if living, when the issue male of John failed, but if 
 dead, then for their respective descendants however remote, who 
 should be in existence at that time. Besides the first limitation to 
 the sisters and niece was not to children, but issue as corresponded 
 with the intention. The subsequent adoption of the word " chil- 
 dren," was used in the same sense as " issue," which appeared from 
 the limitation to survivors ; that being made to depend upon any of 
 the sister's dying without leaving issue, the very word used in des- 
 cribing the failure of the lineal descendants of John; a circum- 
 stance showing the settler's acquaintance with the usual import of 
 the word " issue ;" and that he annexed to it the same meaning 
 when he applied it to John's descendant's and to those of his sisters. 
 Hence it appears that the present case cannot be adduced to prove, 
 that the word " children" of its own proper import includes grand- 
 children, &c. as well as children of the persons described.(a) It is 
 only authority that when the words " children" and " issue" are 
 mentioned promiscuously, and the contents of the instrument show, 
 that the term " children" was used in the sense of " issue," its natu- 
 ral import will be enlarged to the comprehending of all such indivi- 
 duals as are entitled under the latter word. 
 
 The case which next followed, so far differs from the preceding, 
 that the first and direct bequest was made to children and not to is- 
 sue ; but they agree in the circumstance of the limitation over be- 
 ing made dependant upon the death of persons without issue ; liv- 
 ing at the happening of a particular contingency : a limitation clear- 
 ly indicating the testator's intention to annex to the word " chil- 
 dren" the same sense as he had given to the word " issue." 
 
 The case alluded to is Gale v. Bennett,(b) in which Mr. Merttews 
 having four daughters, Hester, Clara, Mary, and Elizabeth, devised 
 real and personal estates to Hester for life, remainder to all the chil- 
 dren of her body, sons and daughters as tenants in common in fee, 
 with benefit of survivorship if any of the sons died under twenty- 
 one, or daughters before at that age or marriage : and in default of 
 such issue, then to all his other daughters living at the death and 
 failure of issue of Hester, and .the child or children of his other 
 daughters who should be then dead, as tenants in common in fee : 
 but if none of his daughters, nor any issue of them should be living 
 at the before mentioned period, he limited the property to his own 
 right heirs. Hester, the tenant for life, died without issue. Clara, 
 died before her, and there were only grand-children of Clara living 
 at the death of Hester, Mary survived Hester ; and Elizabeth died 
 before Hester, leaving two children, who were living at Hester's de- 
 cease. Lord Camden decided upon the authority of the last case, 
 that grand-children were entitled under the terms in the will ;(c) 
 which was equivalent to a declaration, that the testator used the 
 word " children" in the same sense as the term " issue," a term suf- 
 ficiently comprehensive to include grand-children. 
 
 The case next in succession, was determined by Lord Mvanley, 
 
 a) See 3 Ves. & Bea. 68. () Ambl. 681. 
 
 c) See Sir William Grant's comments upon this case, 3 Ves. 8c Bea. 69.
 
 72 Description of Legatees. [Cn. II. 
 
 and arose upon a very obscure will. His Lordship was probably 
 guided by the first mentioned authority of Wythe v. Blackman, foun- 
 ding his decision upon the indiscriminate use of the words " issue" 
 and " children," and the intention collected from the context of the 
 will, that the term " children" was used in the same sense as " issue." 
 
 This case is Royle v. Hamilton ;(d) there Mr. Hunter gave the 
 following legacies : " I give to the children of William Hunter, late 
 of, &c. that is to say, to Captain John Hunter, of &c. 20001. and to 
 his issue; to his sisters or their issue 1000?. each, (viz.) the issue of 
 his sister Mable, deceased, Mrs. Elizabeth Holt, wife of John Holt, 
 now of, &c. : if Mr. Holt should survive her, I will that he have the 
 interest of that share for life ; at his death, to the surviving children 
 of the said William Hunter ; Mrs. Mary Davenport, wife of the Rev. 
 Mr. Davenport, in &c. ; and to Mrs. Rosana Dixon, wife to Mr. 
 Dixon, printer, in &c. The whole sum to the said Captain John 
 Hunter and his issue, and to his sisters and their issue, amounting to 
 60001. ; if any lapse to be divided among the survivors." Mrs. Holt, 
 after surviving her husband, died without issue, before the testator. 
 Mrs. Dixon also died during the testator's life, leaving five children, 
 grand-children of William Hunter. And it was one of the ques- 
 tions, whether those grand-children were entitled to a share of the 
 legacy intended for Mrs. Holt, although not the children of William 
 Hunter, in the strict and literal sense of the word 9 And Lord Jll- 
 vanley decided in the affirmative ; expressing his opinion to be 
 founded upon the words " the whole sum to the said Captain John 
 Hunter and his issue, and to his sisters and their issue." 
 
 His Lordship in pronouncing judgment in the last case, remarked 
 that the word " children" would not mean grand-children, unless 
 their parent, the object of the description were dead.(e) We must 
 also except these instances, where the will shows a clear intention 
 to embrace issue beyond the first generation, as in the several authori- 
 ties before stated. The authorities on the present subject which 
 which remain to be considered, are 
 
 THIRDLY, those cases wherein it was determined, that grand-chil- 
 dren, &c. were not comprehended in the word " children." 
 
 Since the term " children" does not, according to its proper signi- 
 fication, extend farther than to immediate descendants of the person 
 named, and since as a general rule, it is necessary that legatees 
 should accurately answer the description of the bequest, it follows, 
 that if there be a child or children, a grand-child cannot be admit- 
 ted to participate in a fund bequeathed to " children." In the Earl 
 of Orford v. Churchill, it was said by Sir William Grant, that " he 
 never knew an instance where there were children, to answer the 
 proper description, grand-children were permitted to share along 
 with them." A proposition undoubtedly correct, when understood 
 with the qualifications before mentioned, as appears from the fol- 
 lowing case : 
 
 In Crook v. Brooking,(f} the testator vested 1500/. in trustees, in 
 trust to allow Jinn Crew a maintenance out of the interest during 
 her husband's life, with the absolute disposal of the principal, if she 
 survived her husband, but if he were the survivor, the money was 
 
 (d) 4 Ves. 437. (<?) See 3 Ves. & Bea. 69. 2 Vern. 108. (/) 2 Vern. 107.
 
 SECT. I.] Description of Legatees. 73 
 
 to go to her sister's children, as she should advise. Jinn died be- 
 fore her husband, without giving any direction as to the 15001. 
 leaving Grace, her only sister, who at Ann's death had one child, 
 and several grand-children in existence. And although Lord Jef- 
 feries directed the fund to be divided between the only child and the 
 grand-children, yet the Lords Commissioners, upon rehearing the 
 cause, reversed the decree, declaring, that where a bequest was made 
 to children, grand-children could not participate with them. 
 
 The last case, which must have been considered with great atten- 
 tion, has established the legal sense of the word " children," when 
 standing unexplained by any thing in the will, and there are chil- 
 dren in existence to take under it. This authority has been refer- 
 red to and acknowledged in subsequent cases, and its principle was 
 acted upon by Lord Alvanley, M. R. in the following instance : 
 
 In Reeves v. Brymer,(g) Michael Forster bequeathed to his wife 
 the interest of certain bank annuities for life, directing the capital 
 to remain in the same stock for the benefit of his children equally, who 
 should be living at the death of his wife. He also made a similar 
 disposition of a leasehold house. The wife and four daughters, 
 Sarah, Mary, Ann, and Elizabeth, all married and having children, 
 survived the testator ; but Mary died before the wife, leaving a 
 child, grand-child of the testator, who was living at the death of the 
 wife, an event which had happened. The question was, whether 
 the grand-child was entitled with the testator's surviving children, 
 Sarah, Ann, and Elizabeth ? And Lord Alvanley determined in the 
 negative, remarking, that "children may mean grand children where 
 there can be no other construction, but not otherwise *?" 
 
 Consistently with the two preceding authorities, Sir William 
 Grant decided the case of Radcliffe v. Buckley. (h) 
 
 There James Buckley bequeathed his residuary personal estate 
 unto all the legitimate children of William, Henry, John, and Tho- 
 mas Buckley, and Ann Shaw, his late brothers and sister, in equal 
 shares per stirpes. When the will was made there were children 
 and grand-children of all the brothers. Ann Shaw had no children 
 then living, but three of them had left several children, one of 
 whom died before the date of the will, leaving children, so that at 
 the death of the testator the claimants were children, grand-children, 
 and great grand-children ; but his Honour rejected the claims of 
 the two latter classes upon the principle and authorities before 
 stated. 
 
 It is observable, that the last case differs from the preceding au- 
 thorities in the particular of Ann Shaw having had only grandchil- 
 dren and great grand-children in existence at the date of the will. 
 It was therefore contended with great plausibility, that the testator 
 must have used the term " children" in the enlarged sense of" issue ;" 
 and parol evidence was produced to show his acquaintance with the 
 state of Ann's family when he made the will ; but Sir William Grant 
 paid no regard to such testimony, since it alone was inadmissible 
 to alter the construction which properly belonged to the word "chil- 
 dren." And with respect to the will itself he said, that as there was 
 
 () 4 Ves. 692. (A) 10 Ves. 195. 
 
 VOL. I. K
 
 74 Description of Legatees. [Cn. II, 
 
 no expression explanatory of the term " children," indicating the 
 testator's meaning to enlarge tjie legal import of that word, and since 
 it would be inconsistent, in the absence of clear intention, to con- 
 strue " children," (a word only once used) in two different senses 
 when applied to children of the four brothers, and when to children 
 of the sister, he should adhere to the proper construction of the 
 word throughout, for to depart from it, he ought to be perfectly 
 certain he was executing the testator's intention, a certainty that 
 the present case did not afford. 
 
 The next case that occurs upon the present subject, was deter- 
 mined by the same Judge who decided the last. It is an instance 
 of the words " children and grand-children" not being enlarged by 
 the mere mention of the term, " issue" by introduction or simple re- 
 cital, and not repeated in the gift or in the limitation over. of the 
 property ; the Court preferring to adhere to the operative part of the 
 instrument expressing the gift to be made to children and grand- 
 children, than to indulge in speculating upon the intention founded 
 merely on inference from the word " issue" being inserted by way of 
 recital or introduction to the gift, and never afterwards resumed. 
 Under such circumstances, the proper meaning of the word children 
 or grand-children will not be extended by that of issue, but the lat- 
 ter will be considered to have been used in the same sense as chil- 
 dren or grand-children. 
 
 The case alluded to is the Earl of Orford v. Churchill,(i) in which 
 Charles Churchill, under the will of his father had, in the event " of 
 having or having had any child or children who should be living, or 
 who should have left issue living at his death," a power to appoint 
 the testator's residuary real and personal estate, " to and for all or 
 any of his (Charles's) children and grand-children that should be so 
 living, with benefit of survivorship, and limitations over (for the 
 benefit of such children or grand-children as he should direct by 
 deed or will ;" and in default of appointment, the property was 
 limited over to Harriet Churchill, in the event of Charles dying 
 without leaving a child or grand-child. Upon the marriage of 
 Charles (after the testator's death) with Lady Walpole, he, by deed 
 of appointment, reciting an intention to provide for their children 
 and issue, directed 13,000f. to be paid out of the estates for the por- 
 tions of younger " children, sons and daughters," at the usual ages 
 and times, with benefit of survivorship among such " children, sons 
 or daughters," as should die before their shares became payable. 
 And if there were an eldest son, and other " children, sons or daugh- 
 ters," such eldest son was to have 30,0001. out of the said funds. 
 " Provided, if any child or children, to whom any sum of money was 
 appointed by the deed, happened to die before Charles, leaving any 
 child or children then living, the portion or portions before appointed 
 for such child or children so dying during the life of Charles, should 
 go to such of his and their children, as should be living at the de- 
 cease of the said Charles." There were seven children of the mar- 
 riage, of whom a son named Charles was the eldest, and had he 
 lived, would have been entitled to the 30,0002. ; but he died before 
 his father, leaving three children, Henry, William and Helen. Hen- 
 
 (i)3Ves. &Bea.59.
 
 SECT. I.] Description of Legatees. 75 
 
 ry died before his grandfather, leaving Charles Henry his only son, 
 and great grand-child of the testator. William also died, a bache- 
 lor, during the life of his grandfather, and Helen was the only grand- 
 child who survived her father Charles. The question was, whether 
 Helen, as such only grand-child living at the death of her father 
 Charles, was alone entitled to the 30,OOOZ. or whether Charles Hen- 
 ry, the great grand-child, was entitled to share with her that sum, 
 which depended on the previous fact, whether in the terms of the 
 will and appointment, great grand-children were comprehended ; 
 and that could only be from the effect of the word " issue" introduc- 
 torily inserted in both instruments. Sir William Grant decided 
 against the right and claim of the great grand-child, for the reasons 
 before detailed. 
 
 It must be obvious to every reader of the last case, that the testator 
 and his son had only the children and grand-children of the latter 
 in contemplation when the will and appointment were made. Both 
 instruments expressly provide for those two classes only; and al- 
 though " issue" be once mentioned in each, it is manifest that it was 
 used in the sense of children and grand-children ; for if the intention 
 had been to make provisions for all the descendants of the son, it 
 cannot be supposed that the testator, in the passage of the will which 
 gives the power of making such provision, and the son, in the passage 
 of the instrument which exercises that power, should omit the word 
 ".issue," and expressly confine the portions to children and grand- 
 children. 
 
 9. The case last stated is an authority over-ruling the apparent 
 opinion of Lord Northington in Hussey v. Berkeley ^(k} that the 
 word grand-children, would, without further explanation, compre- 
 hend great grand-children. And it seems but reasonable, that if 
 the word " children" do not include grand-children, as we have seen, 
 the term "grand-children" will not comprise children next to them 
 in descent. The several distinctions which have been mentioned 
 in regard to the enlargement of the word " children" seem applica- 
 ble to a bequest to grand-children ; so that if it appear from the 
 will, that the word " grand-children," was not used in its proper 
 sense, but for the purpose of embracing all the descendants of all 
 the persons described, it will have the effect. An instance of this 
 occurred in the following case : 
 
 In Hussey v. Berkeley,(l) Lady Tyrconnel having several grand- 
 children and great grand-children, bequeathed to Lady Netterville 
 and Mrs. Hussey, two of her grand-children, IQOl. each, to buy rings ; 
 and directed her executor to give her residuary personal estate, as 
 she should afterwards appoint. She by a codicil gave legacies to 
 several of her great grand-children, and to Lady Dillon, the widow 
 of her grandson. She also gave to Miss Hussey (who was her great 
 grand-daughter) by the description of grand-daughter, specific lega- 
 cies ; directing the residue to be divided among her grand-children 
 named therein. Two of the questions were, whether great grand- 
 
 () 2 Eden. 196. 
 
 (/) Ibid, and reported in Ambl. 603, under the title of Hussey v. Lady Dillon. 
 See Shelley v. Bryer, 1 Jacob. 207, as to grand nieces not being included in the 
 word niece.
 
 76 Description of Legatees. [Ce. II. 
 
 children should take a share of the residue with, and under the de- 
 scription of grand-children, and whether Lady Dillon, who was only 
 a grand-child by marriage, was entitled under the description 1 ? Lord 
 Northington determined in favour of the great grand-children, since 
 the testatrix had shown the sense in which she used the word grand- 
 children, in giving the specific legacies to her great grand-child 
 Miss Hussey, by the description of grand-child. But with respect 
 to the claim of Lady Dillon as a grand-child by marriage, his Lord- 
 ship said it had no foundation ; as the testatrix intended such grand- 
 children only who were related to her by blood. 
 
 The next subject for consideration is 
 
 II. Legacies to Natural Children. 
 
 It is a maxim of the common law, that qui ex damnato coitu nas- 
 cuntur inter liberos non computentur. The relation of a natural 
 child to its father is not acknowledged before its birth, for the law 
 considers him quasi nullius filius. The above maxim is founded in 
 general convenience, the law overlooking a particular hardship 
 when in competition with the public good; and the wisdom of the 
 rule appears from the very great inconvenience and indelicacy there 
 would be in permitting evidence of the children being really begot- 
 ten by the same individual. Hence, 
 
 1. Natural children unborn at the date of the will, cannot take 
 under a bequest to the children generally, or to the illegitimate 
 children of A. B. by Mary D. 
 
 The difficulty which occurs in such a case as that last supposed, 
 is, how the indentity of the father can be ascertained. That he was 
 the father, decency will not admit the proof; consequently there is 
 no method by which such children can bring themselves within the 
 description of the bequest, (m) 
 
 In Metham v. the Duke of Devon,(ri) the then late Earl of Devon, 
 bequeathed 3000Z. to " all the natural children of his son the late 
 duke, by Mrs. Heneage" The question was, whether natural chil- 
 dren, born after the will, should!partake of the legacy ? And Lord 
 Parker, C. decided in the negative ; adopting the rule laid down by 
 Lord Coke in his Cornmentary,(o) that a natural child cannot take 
 as the issue of a particular person, until it has acquired the reputa- 
 tion of being the child of that person, which cannot be before its 
 birth. 
 
 The last case was followed by Sir William Grant, M. R. in Earle 
 v. Wil8on.(p) The bequest was : " I give to such child, or children, 
 if more than one, which Mary Mackarel may happen to be enceinte 
 of by me," such sum or sums, &,c. Mary had a daughter born 
 shortly after the testator's death, who claimed under the above be- 
 quest ; but his Honour disallowed the claim, because the law would 
 not permit a natural child, unborn at the date of the will, to take 
 under the description of a child. 
 
 2. Sir William Grant remarked, in deciding the case just stated, 
 that if the bequest had been to the natural child of which a particular 
 
 (z) 1 Meriv. 148. J Ves. & Bea. 446. 
 
 (n) 1 P. Will. 529, &nd see Arnold v. freston, 18 Ves. 288. 
 
 (o) Co. Litt. 3, b. (/z) 1 Ves. & Bea. 528.
 
 SECT. II.] Description of Legatees. 77 
 
 woman was enceinte, without reference to any person as the father ; 
 as there would be no uncertainty in that bequest, it would probably 
 be supported. 
 
 His Honour's opinion has been since established by a decision 
 of Lord Eldon, in the case of Gordon v. Gordon.(q) There the 
 form of bequest was, " As I have reason to believe that Jldrienne 
 Maillet is pregnant by me, I give to her 501. sterling yearly, &c. I 
 wish the child of which she is now pregnant, to be sent to England 
 and educated, as George Louis (a natural child of the testator, to 
 whom by a former codicil he gave an annuity of 1001. from the time 
 of such child's arrival in England) the expense of which is to be paid 
 for by a like annuity of 1001. to commence from the arrival of the 
 child in England." JLdrienne was delivered of a daughter, who com- 
 menced the present suit for the annuity, but which demand was re- 
 sisted on the ground of her not having been born when the bequest 
 was made ; yet Lord Eldon determined in her favour, upon the prin- 
 ciple, that it was possible to hold, consistently with the doctrine of 
 Lord Coke, that if an illegitimate child, enventre sa mere, be describ- 
 ed in such a manner as to ascertain the object, it might take under 
 the description : and his Lordship said, that the words " the child 
 with which Jldrienne is now pregnant," were description sufficient 
 for the purpose. 
 
 Such were the words upon which alone his Lordship founded his 
 judgment ; but he gave a very strong opinion, that the first expres- 
 sions would have been sufficient to entitle the after-born daughter. 
 The words were these ; " As I have reason to believe that Jldrienne 
 is pregnant by me," &c. Lord Eldon marked the distinction be- 
 tween the assertion of the fact of pregnancy by the testator ; and 
 the declaration of his belief that the woman was enceinte by him ; 
 and his acting upon such belief, whether right or wrong. In the 
 first case, as the law would not admit proof of that fact, as before 
 observed, the child could not take ; but in the second, since the 
 testator chose to assume the fact, and to act upon the foundation 
 of his belief, there is no uncertainty in the object, since, whether it 
 was or was not the child of the testator, he meant to provide for it 
 as the child of the mother described. His Lordship thus expressed 
 himself: " If the words had been these, whereas A. is now pregnant 
 by me, that would imply a positive assertion of a fact, the truth of 
 which, it cannot, on the grounds of public policy, be suffered to 
 sustain by evidence. But a man may most conscientiously make use 
 of the terms adopted by this testator to denote his belief of a fact, 
 and his intention to proceed, not upon the fact itself, but upon such 
 his belief of it. No doubt, where a man assigns certain positive 
 reasons for giving a legacy, if those reasons fail, the legacy may be 
 taken away. But here the testator has expressed the grounds upon 
 which he acts to be these : I believe that I am the father of the child, 
 with which this woman is now enceinte. I may be mistaken ; but I 
 had rather run the risk of providing for a child that is not my own, 
 than of incurring the guilt of leaving a child of mine without a pro- 
 vision." (r) 
 
 (y) 1 Meriv. 141, and see Blunddlv. Dunn, cited 1 Mad. 442, and stated infra 
 p. 83. (r) 1 Meriv. 148-152.
 
 78 Description of Legatees. [Cu. II. 
 
 In the late case of Evans v. Massey,(s] a testator by will, dated 
 the 14th of August 1810, after the words " having two natural chil- 
 dren, and the mother supposed to be carrying a third" gave all his 
 property in England to be equally divided between them, " that is 
 to say, if another child should be born by the mother of the other 
 two in the proper time, that such child to have one-third of such 
 property in England." In another part of the will the testator adds, 
 " I bequeath the whole of my remaining property, after paying my 
 natural children as aforesaid, to my two nephews" (naming them) 
 &c. The testator died on the 16th, and the child, of which the 
 mother was enceinte at the date of the will, was born in about seven 
 months after. The question was, whether the after-born child, who 
 died shortly after its birth, took the interest intended under the will. 
 Chief Baron Richards, after adverting to the cases of Earle \. Wil- 
 son and Gordon v. Gordon, decided that it did, upon the principle 
 adopted in those cases, that the object of the bequest was described 
 with sufficient certainty. In the course of his judgment the Chief 
 Baron observed, that there was nothing in the terms of the above 
 bequest, to show that the testator meant the child, en venire sa mere, 
 to take only in case of its being his. Had there been such a condi- 
 tion annexed to the bequest, we have seen that the bequest would 
 have failed, as evidence aliunde, in proof of that fact, would not 
 have been admissible. 
 
 The following propositions appear to be the result of the cases 
 which have been cited : 
 
 FIRST, That natural children, unborn at the date of the will, and 
 described as children of the testator or another man, to be born of a 
 particular woman, cannot take under such a description. 
 
 SECONDLY, That a legacy to an illegitimate child en ventre sa 
 mere, described as the child of the testator or of another man, will 
 also fail, since, whether in truth the testator, or such person were or 
 were not the real father, is a fact which can only be ascertained by 
 evidence, that public policy forbids to be admitted ; consequently, 
 such child is unable to make out its title as child to the testator or to 
 the person described. But, 
 
 THIRDLY, If the child en ventre sa mere be merely described as a 
 child, with which its mother is enceinte, without mentioning its puta- 
 tive father ; or, if the testator express his belief that the child is his 
 own, and provide for it under that impression, regardless of the chance 
 of being mistaken ; then the child will, in the first case, be capable 
 of taking; and in the second, it will, as presumed, be also entitled, 
 in consequence of the testator's intent to provide for it, whether he 
 be the father or not. 
 
 The next subject which regularly follows is 
 3. The capacity of illegitimate children to take under the de- 
 scription of " children," when they are in existence at the date of the 
 will. 
 
 It is settled, that natural children having acquired by reputation, 
 the name and character of children of a particular person prior to 
 the date of his will, are capable of taking under the description 
 of children, (t) But the term child, son, issue, and every word of that 
 
 () 8 Price's Ex. R. 22. (0 1 P. Will 529. 1 Ves. 8c Bea. 467.
 
 SECT. II.] Description of Legatees'. 79 
 
 species, is to be considered as prima facie to mean legitimate child, 
 son, or issue ;(w) so that if a testator merely bequeath to his own chil- 
 dren, or to the children of another person, or to one or more of them, 
 and nothing appears from the will sufficient to show that he intended 
 natural children then in existence, that class of children will be ex- 
 cluded. (a;) It seems, indeed, necessary to enable illegitimate chil- 
 dren to take as children, that they should be persona designate, 
 either by express gift nominatim, .or by manifest and incontroverti- 
 ble intention apparent upon the face of the will, that they were 
 meant to be included in the term " children." That intention, how- 
 ever, can only be shown from the will, for evidence cannot be re- 
 ceived to prove that they were intended by the testator to be includ- 
 ed in that description. (y) The only testimony admissible in those 
 cases is, that the children had acquired the name and character of 
 children by reputation 5(2) and when that charaoter is so established, 
 it remains for the will to show whether they were designated to take 
 under the description of children, the prima fade intention and legal 
 construction being to their disadvantage, as before noticed. And, 
 
 FIRST, We shall consider some of the instances in which the 
 will was deemed to afford insufficient evidence of the testator's in- 
 tention to include natural children in the term " children." 
 
 Cartwright v. bawdry, (a) a case before Lord Rosslyn, was parti- 
 cular in this respect, that the testator had an illegitimate daughter 
 Mary, by his wife before their marriage; and they had three illegiti- 
 mate daughters afterwards, all of whom survived him. His Lordship is 
 reported to have said, " It was impossible to hold in a court of justice, 
 that an illegitimate child could take equally with lawful children upon 
 a devise to children :" a declaration unquestionably correct in the 
 absence of manifest intention in the will to include such child, as 
 was the case before him. But where clear unequivocal intention 
 appears in the context of a will, that natural children are meant to 
 be included in the term children ; then, although legitimate children 
 will not be excluded without a special intent, because they answer 
 the description, and are entitled by law to take under it, such their 
 privilege will not prevent the illegitimate children from partici- 
 pating with them, since their claims are founded upon the clear in- 
 tention of their common parent, to place them in the same condition 
 as lawful children. (b) 
 
 In Cartwright v. Vawdry, just referred to, the testator having a 
 natural daughter and three legitimate daughters when he made his 
 will, devised his real and personal estates to his executors in trust, 
 to apply a reasonable part of the produce in the maintenance and 
 education of all such children as he might have at his death, in equal 
 shares, until they attained twenty-one or married, and then to pay 
 to such of them attaining that age or marrying, one-fourth of the 
 whole income. The testator in different parts of his will used the 
 words, she, her, and daughters, which, when coupled with the divi- 
 sion of the property into fourths, appeared to raise a presumption 
 that he had in view not only his three legitimate daughters, but also 
 his natural daughter Mary, a circumstance that seems to have 
 
 () Ibid. 462. (x) Ibid. 465. (u) 1 Ves. & Bea. 462, 463. 470. 
 
 (z) Ibid. 466. (a) 5 Ves. 530. (b) 1 Ves. & Bea, 454.
 
 80 Description of Legatees. [Cn. II. 
 
 escaped Lord Eldon's observation in his comments upon this case, 
 and after mentioned. Mary claimed one-fourth of the property, and 
 proved that the testator always treated her as a legitimate daughter, 
 and intended to provide for her equally with his other children : (a 
 species of evidence which was before noticed to foe inadmissible to 
 explain a will.) But Lord Rosslyri's opinion was against her claim. 
 
 Lord Eldon, in commenting upon this case,(c) considered the de- 
 termination as solely founded upon the effect of the will, and ap- 
 proved of the decision, on the principle, that the will did not suffi- 
 ciently indicate the testator's intention to include Mary, his natural 
 daughter, in the term " children." His Lordship observed, that the 
 direction to apply the income in fourths only afforded a conjecture 
 of such intention, since, if between the date of the will and the tes- 
 tator's death, one or two of the four children had died, the division 
 by fourths would have been just as inapplicable as that in thirds, ex- 
 cluding Mary. Besides the terms of bequest would not only have 
 included the three legitimate daughters, but all others who might 
 have been born between its date and the testator's death ; it was 
 clear therefore that he could not necessarily mean the natural daugh- 
 ter in the general description, it being impossible to say that he 
 meant the three legitimate children, the will providing for children 
 living at his death, although not in existence at the date of it. Under 
 those circumstances his Lordship observed, that the will could not 
 be understood to describe two classes of children, legitimate and 
 illegitimate, and that, in his opinion, the case was rightly decided. 
 
 The case which followed was Godfrey v. Davis, (rf) determined by 
 Lord Alvanley, M. R. and is a powerful authority in support of what 
 has been noticed, that the intention to entitle a natural child to take 
 under the description of child, must be collected entirely in the will, 
 and not shown from extrinsic evidence. 
 
 In Godfrey v. Davis, just mentioned, the bequest was in re- 
 mainder to the " eldest child, male or female, of William Harwood." 
 At that time Harwood was a single man, and had illegitimate 
 children, the eldest of whom claimed the legacy under the above 
 description. It was proved on her behalf, that the testator was very 
 intimate with Harwood and his family, and knew that he had no 
 legitimate child; also that the claimant, and all his other children, 
 were treated by him as children. Yet the Master of the Rolls de- 
 cided against the claim, upon the ground that the natural daughter 
 was not particularly designated by the testator, and manifestly and 
 incontrovertibly intended to take. His Honour determined the case 
 upon the will alone, in which, as nothing appeared of any intention 
 in the testator to describe a natural child by the word " child," he 
 could not supply the omission by parol evidence. (e) 
 
 The case next in succession is Kenebel v. Scrafton,(f) in which 
 James Pierson, being unmarried, and having a natural child by 
 Mary Simpson, bequeathed his personal estate to her, and an annuity 
 out of the rents of his real estate ; and proceeded, " in case I shall 
 have any child or children by her, who shall be living at my decease, 
 I order," &c. first, maintenance for them till twenty-one ; and 
 
 (c) In Wilkinson v. Mam, I Ves. & Bea. 464. (0 6 Ves. 43-48. 
 
 (e) 10 Ves. 203. (/) 2 East, 530. 542.
 
 SECT. II.] Description of Legatees. 81 
 
 secondly, payment to them equally of 3000J. when they shall attain 
 that age. The testator afterwards married Mary Simpson; before 
 which event the child died. There were three legitimate children 
 of the marriage; and the point immediately before the Court of 
 King's Bench was, whether the will of a single man was revoked by 
 his marriage, and the subsequent birth of children'? The opinion of 
 the Court, in consistency with former authorities, was, that as mar- 
 riage alone will not revoke a will, although, when connected with 
 the birth of a child, it will generally have that effect, yet those two 
 circumstances would not so operate in the present instance, since 
 the will contained a provision for children, if there should be any. 
 
 It is obvious, from the decision of the Court, that it considered 
 natural children could not in general take with legitimate under the 
 word children, and that the latter were to have the preference. 
 Since, therefore, the terms of bequest in the will just mentioned did 
 not authorize a construction which would let in natural where there 
 were legitimate children, it was a necessary consequence, that as 
 the latter class were provided for by the will, the marriage of their 
 parents, and their birth after the date of the will, could not be a re- 
 vocation. The Judges, in their remarks upon this case in Wilkin- 
 son v. Adam,(g) observed, it might have been well decided upon 
 the facts, that it did not sufficiently appear that the testator intended 
 to include illegitimate children in the term " children;" (an inten- 
 tion which we have seen to be necessary to appear upon the face of 
 a will, and in the absence of which natural children could not take 
 under the description of " children.") And that such were the sen- 
 timents of the Court, appears from the judgment, for the reason be- 
 fore stated. Lord Eldon, in his comments upon this case in Wilkin- 
 son v. Jldam,(h) said, " We may conjecture that the testator meant 
 illegitimate children, if he did not marry : yet notwithstanding that 
 may be conjectured, the opinion of the Court was, as mine is, that 
 where an unmarried man, describing a single woman as dearly be- 
 loved by him, does no more than make a provision for her and chil- 
 dren, he must be considered as intending legitimate children ; since 
 there is not sufficient upon the will itself to show that he meant ille- 
 gitimate ; and it is my opinion that such intention must appear by 
 necessary implication upon the will" The import of the expres- 
 sion, " necessary implication," his Lordship thus defined : " It does 
 not mean natural necessity, but so strong a probability of intention, 
 that an intention contrary to it, which is imputed to a testator, can- 
 not be supposed." 
 
 The last case that will be produced under this head is Swaine v. 
 Kennerley, which is an express decision by Lord Eldon, that where 
 there are legitimate and illegitimate children at the date of the will, 
 the latter cannot take with the former under the mere description of 
 children, where the witt itself does not show that natural children 
 were intended : and his Lordship declared that such proof of inten- 
 tion must be supplied by the will only ; extrinsic evidence, except 
 to prove the illegitimate children having, at the date of that instru- 
 ment, acquired the reputation of children of the testator, or of the 
 
 far) 1 Ves. &Bea. 456. (A) Ibid. 465. 
 
 VOL. i. L
 
 82 Description of Legatees. [Cn. II. 
 
 person named in it, being inadmissible ; and by no means to be re- 
 ceived for the purpose of raising a construction by circumstances. 
 
 In Swaine \. Kennerley,(i] the case just referred to, the bequest 
 was of 21007. to be invested in land to be settled to the use "of all 
 and every the child and children of his (the testator's) late son Tho- 
 mas," as tenants in common in tail. At the date of the will, the 
 children of Thomas were three in number ; one legitimate, and two 
 illegitimate : and it was determined that the natural children could 
 not take with the lawful child, because the will itself did not prove 
 that the testator meant an illegitimate child. 
 
 We shall now proceed 
 
 SECONDLY, to consider instances in which a will was deemed to 
 afford sufficient evidence of the testator's intention to include na- 
 tural children in the expression " children." 
 
 Two propositions have been proved by the preceding authorities : 
 first, that the will itself must show the testator's intention to include 
 natural children in the term " children," either by express designa- 
 tion, or a necessary implication, collected from the instrument itself: 
 and secondly, that evidence is inadmissible to show such intention, 
 when it is not to be clearly discovered in the will. 
 
 It has been decided by great authority, that where a man (married 
 at the date of his will, and without having had a legitimate child) 
 provided by his will for his wife, who he considered would survive 
 him ; and also made provision, to commence after his wife's death, 
 for another woman with whom he cohabited, and by whom he had, 
 when the will was made, natural children, reputed to be his own, 
 and provided for by him as his children by that woman, such chil- 
 dren were capable of taking that provision ; upon the ground that 
 the above circumstances raised so strong a probability of the testa- 
 tor's intent to provide for them, that it would be absurd to suppose 
 the contrary. 
 
 Such was the case of Wilkinson v. Jldam,(k} determined by Lord 
 Eldon, assisted by three Judges. The form of bequest was, " to the 
 children which I may have by Ann Lewis, and living at my de- 
 cease," &c. The testator had provided for his wife, and for Jinn 
 Lewis after his wife's death ; and the only children he ever had were 
 three illegitimates by Jinn Lewis, all of whom were living when the 
 wili was made, and had at that period acquired the character and 
 reputation of being his natural children, as appeared from the de- 
 positions in the cause. Under those circumstances, and the inten- 
 tion collected from the will, it was decided that the three illegiti- 
 mate children were entitled under the terms of the description in the 
 wilh(J) 
 
 The last determination was founded upon the will alone, and the 
 depositions establishing the reputation acquired by the illegitimate 
 children of being children of the testator. Certain memoranda en- 
 tered by him in a book, proved in the Ecclesiastical Court, as ex- 
 planatory of the will, were rejected, (part of the subject of disposi- 
 tion being freehold estate,) on the ground that the contents of the 
 book were not to be considered as incorporated in the will. Upon the 
 
 (0 1 Ves. & Bea. 469. () Ibid. 422. 
 
 (/) See also Bay ley v. Snelham, 1 Sim. & Stuart, 78.
 
 SECT. II.]] Description of Legatees. 83 
 
 subject of evidence admissible in those cases, Lord Eldon expressly 
 confines it to the fact of the children having obtained by reputation 
 the name and character of the testator's children. His Lordship 
 expressed himself to the following effect: " In alLthe cases I have seen 
 in relation to this question, illegitimate children, if they were to 
 take, must have done so, not by any demonstration arising out of 
 the will itself, but by the eifect of evidence dehors read or attempted 
 to be read with a view to establish, not out of the contents of the 
 will, but by something extrinsic, who were intended to be the de- 
 visees ; and if my judgment upon this case is supposed to rest upon 
 any evidence out of the will, except that which establishes the fact, 
 of there being individuals who had gained by reputation the name 
 and character of the testator's children, the conclusion is drawn 
 without sufficient attention to the grounds upon which the judg- 
 ment is formed : my opinion being, that, taking the fact as estab- 
 lished, of there being children who had gained the reputation of being 
 his children, it does necessarily appear upon the will itself, that he 
 intended those children. "(m) 
 
 In a case of Blundell v. Dunn,(n) decided at the Rolls a short 
 time before the last, the testator vested stock in trustees upon the fol- 
 lowing trusts : " to pay my wife or reputed wife Sarah 4(jl. a year for 
 life, and to educate my children, &c." The trust of his residuary 
 estate was declared : " to divide the interest among my children 
 that are now living, and also the child or children that my wife is now 
 enceinte with," at their ages of twenty-one ; and to divide the prin- 
 cipal among them at those periods. When the will was made, the 
 testator had two children by Sarah, to whom he was not married ; 
 and she was then enceinte with another, which was born after the tes- 
 tator's death. His Honour decreed the residue to be distributed into 
 three parts corresponding with the number of children, declaring 
 the share of one of them, who died, to be vested in the Crown. 
 
 It is apparent from the whole context of the will, that the testator 
 intended to make provision for persons then in existence, and a 
 child en ventre sa mere. He describes the mother as his reputed 
 wife, and having none but illegitimate children, he refers to them 
 as then living ; so that the will clearly showed the intention of the 
 testator to provide for his two natural children then in esse. And 
 with respect to the child en ventre sa mere, it is observable that the 
 testator does not bequeath to it as his child by Sarah, but as the 
 child of Sarah, a description, by which, as we have seen, an illegiti- 
 mate child unborn is capable of taking. 
 
 In the following case, Sir Thoinas Plumer, V. C. expressed a 
 strong opinion that the words, " to my children," contained in the 
 will of a bachelor, then having illegitimate children, reputed to be 
 his own, would include them ; the terms being sufficient to mark 
 them as personte designates. But the case was not solely determined 
 upon that point, as the will in other parts afforded evidence in con- 
 junction with those words sufficient to show that those natural chil- 
 dren were meant to take under them. 
 
 The case alluded to is Beachcroft v. Beachcrqft.(6) There a sin- 
 gle man resident in India, having five natural children at the time of 
 
 (m) 1 Ves. & Bea. 462. (n) Cited in 1 Mad. 433. (o) 1 Mad. 430.
 
 84 Description of Legatees. [Cn. II. 
 
 making his will ; (three of whom he had acknowledged to be his chil- 
 dren, given his name to, and sent to this country to be educated,) 
 bequeathed in this manner ; " to my children 5000/. sterling each ; 
 and to the mother of my children 6000 sicca rupees;" then giving 
 the residue to his brothers and sisters. Sir Thomas Plwner declared, 
 that the illegitimate children were entitled to the legacies, as being 
 sufficiently designated by the will. He concluded his judgment in 
 these words ; " After examining this case according to established 
 principles and authorities, I think exvisceribus of the will, the lega- 
 tees whom this testator must have intended to describe, were not the 
 possible progeny of a future marriage, but existing persons children 
 already born, uniformly designated and recognized by him in that 
 character." 
 
 The grounds of his Honour's decree appear to have been these : 
 that the words " my children" explained by the subsequent gift to 
 " the mother of my children," and the portions of 5000Z. bequeathed 
 to each child, showed distinctly that the testator could only mean 
 children then in existence, which he had by the person described as 
 their mother, and for whom individually he intended first to provide 
 portions, after which he designed the residue of his property for his 
 legitimate relations. 
 
 In the last case the intention of the testator prevailed, notwith- 
 standing the possibility of his subsequent marriage, and his having 
 legitimate issue. It follows, therefore, if there be no possibility of 
 the person described having lawful children, and a legacy be given 
 to his children generally, all those born at the date of the testament, 
 although illegitimate, will be entitled ; because it is manifest that 
 they were intended, since there never were any lawful children to 
 which the words of the will could be applied. Suppose then a be- 
 quest to be made to the children of A. by a will noticing JTs death, 
 and evidence be given that he never had any lawful child, but left at 
 his decease natural children ; those children w r ould take upon esta- 
 blishing by proof their title by reputation as children of A., and that 
 he never had any legitimate children to whom the term children 
 could apply. 
 
 Such was the case of Lord Woodhouselee v. Dalrymple,(p) deter- 
 mined by Sir William Grant, M. R. There Sir James Craig be- 
 queathed " to the children of the late Charles Kerr who should be 
 living at his (the testator's) death, 2000Z. in equal shares." It ap- 
 peared, in evidence that Charles was married, had five children by 
 his wife before marriage, but no child after that event : that the five 
 were baptized as the children of Charles and Mary Kerr, and the 
 testator, acquainted with the circumstances of Charles's family, well 
 knew the claimants, three of those children who survived him, the 
 testator, and were the persons intended in the bequest made " to 
 the children of the late Charles Kerr," and that Charles never had a 
 legitimate child. His Honour decided in favour of the three natural 
 children, upon the principle that the death of Charles being noticed 
 in the will, and it being proved that previously to his decease he 
 never had any but the five illegitimate children, who had acquired 
 the reputation of being his children, it clearly appeared from the 
 
 (/OSMeriv. 419.
 
 SECT. III.] Description of Legatees. 85 
 
 will, (the above collateral points being established) that the testator 
 meant to designate the natural children of Charles living when the 
 will was made ; for there never were nor could be any children of 
 Charles to whom the words of the will could be applied at its mak- 
 ing or afterwards, except to those five natural children. 
 
 SECT. III. The construction of the word " HEIRS," when 
 applied to personal Estate. 
 
 1. A legacy to A. and his heirs, is an absolute bequest to A. and 
 the whole interest in the money vests in him for his own use.(^) But 
 when no property in the bequest is given to A. and the money is be- 
 queathed to his heirs, or to him, with a limitation to his heirs, if he 
 die before the testator, and the contingency happens, then if there 
 be nothing in the will showing the sense in which the testator made 
 use of the word heirs, the next of kin of A. are entitled to claim under 
 the description, as the only persons appointed by the law to succeed 
 to personal property. 
 
 We accordingly find Lord Alvariley in Holloway v. Holloway,(r) 
 expressing an opinion, (although it was unnecessary for him to decide 
 the point) that the word " heirs," when applied by testament to per- 
 sonal estate, must be understood to mean next of kin, for the reason 
 before mentioned. 
 
 So in the case of Lowndes v. Stone,(s) the residuary bequest 
 was to the testator's next of kin or " heir at law," whom he appoint- 
 ed executor. The Court determined that the next of kin were en- 
 titled to it. 
 
 And in Vaux v. Henderson,(t) Alexander Coutts bequeathed 
 200J. to Edward J^aux; but if he died before the testator, then'to 
 Edward's " heirs." Edward did not survive the testator, but by 
 will disposed of all his personal estate, appointed executors and left 
 a widow and seven children. Sir William Grant, M. R. determined 
 that the legacy belonged to the next of kin of Edward who were 
 living at the death of the testator Alexander Coutts. 
 
 2. The above authorities are sufficient to establish the proposition, 
 that a bequest to the heirs of an individual, without addition or ex- 
 planation, will belong to his next of kin. The rule however is sub- 
 ject to alteration by the intention of testators. If then the con- 
 tents of the will show, that by the jvord " heirs" the testator meant 
 other persons than next of kin, those persons will be entitled. Chil- 
 dren, therefore, may take under the word " heirs," as in the follow- 
 ing case : 
 
 Elizabeth Letheuillier bequeathed in the following manner : " I 
 give to my sister Loveday's heirs 6000Z. I give to my sister Brady's 
 children 1000J. equally." Mrs. Loveday had two daughters only, 
 and both were living when the will was made. One of them died 
 before the testatrix, leaving three children, and the other survived 
 her and claimed the whole 6000Z. The question was, whether the 
 children of the deceased daughter should participate with the sur- 
 viving daughter, which depended upon the construction of the word 
 " heirs." And Sir Thomas Clarke, M. R. was of opinion that the 
 
 (?) Crawford v. Trotter, 4 Mad. 361. (r) 5 Ves. 403. 
 
 () 4 Ves. 649. (r) 1 Jac. & Walk. 388.
 
 86 Description of Legatees. [Cn. II. 
 
 testatrix had explained that word by the term " children" in the be- 
 quest which immediately followed. So that the word " heirs" was 
 to have the same and only meaning as "children," a construction 
 that entitled the surviving daughter to the whole GOOOZ.(tt) 
 
 The intention of testators to use the term " heirs" in the sense of 
 " children" equally appears in instances where the direction as to the 
 distribution of the property is inconsistent with construing that word 
 in its usual acceptation, viz. as a word of limitation. 
 
 Suppose then A. to give a legacy to B. for life, and then " to the 
 heirs, or the heirs of the body of B. to be divided among them as 
 B, shall appoint by deed or will ;" this delegated authority of dis- 
 tribution shows that the word " heirs" was substituted for children ; 
 for it was the obvious intention that the legatees were to take dis- 
 tributively and as purchasers, not in succession as heirs, but toge- 
 ther as children. A contrary construction of the words would defeat 
 that intention ; for if the expression " heirs" was considered a word 
 of limitation, IPs life-estate must necessarily be enlarged ; it would 
 give him the absolute interest in the fund, to the disappointment of 
 his children, and in contradiction to the power of appointment, 
 which would be rejected, and struck out of the will. (a?) 
 
 The construction will be the same if a bequest be made to a per- 
 son for life, and afterwards "to the heirs or heirs male of his body 
 as tenants in common" In such a case, " heirs" must be considered 
 synonimous with " children ;" because it appears to be the intention 
 of the testator to give the legatees interests distinct and independent 
 of that bequeathed to their parents, and in a class, and not succes- 
 sively, as is the manner in which heirs take. Besides, were the 
 word " heirs" interpreted in its natural sense, it would defeat the 
 testator's intention by vesting the absolute interest in the person 
 whom he only intended to take the property for Yife.(y) 
 
 So also, if the bequest were to A. for life, -and to the " heirs or 
 heirs male of his body, their executors, administrators, and assigns;" 
 the inconsistency between the natural import of the word " heirs," 
 and the expressions grafted upon them, so clearly shows the testa- 
 tor's meaning by that term to be children, (individuals to take per 
 capita in their own rights, and not as heirs successively and by de- 
 scent) that the word " heirs" wi]l ft be considered the same as if the 
 testator had used the word children. (z) 
 
 It is to be remarked, that in the three last instances the bequests 
 to " heirs" were preceded by interests for lives expressly given to 
 the parents ; yet the construction of " heirs" to mean children will 
 equally prevail, although that term be not preceded by an express 
 limitation to the parent for life, if sufficient appear from the will to 
 show that the word " heirs" was used in the sense of children. And 
 such is the effect of the term " heirs," where it appears to have been 
 used in that sense, whether it be so explained by the testator in 
 words, or the intention be inferentially collected from the context, 
 that the word ex vi termini will give by implication an estate for 
 
 (u) Loveday v. Hopkins, Ambl. 273. 
 
 (.r) Target v. Gaunt, 1 P. Will. 432. and see 5 Maule & Sehv. 100. 
 
 (z/} Jacobs v. Amyatt, 4 Bro. C. C. 542. Doe v. Wright, 5 Maule & Selw. 95. 
 
 (z] Donne v. Merrefield, cited Forrest, 56. Hodgeson v. Bussey, 2 Atk. 89.
 
 SECT. III.] Description of Legatees. 87 
 
 life to the parent, with remainder to the children ; though, accord- 
 ing to the case of Bvffar v. Bradford, before stated, (a) under a be- 
 quest to A. and her children, the parent and children would take as 
 joint-tenants, if A. had any children living either at the date of the 
 will, or at the death of the testator ; the law marking a distinction 
 between the use of the terms " heirs" and " children." 
 
 The following are authorities in support of the above observations : 
 
 In Law v. Davis,(b) A. bequeathed property "to B. and his heirs 
 male, equally to be divided between them, share and share alike." 
 B. had four children; and although the limitation was not to him 
 for life, yet the Court thought the true construction was to give B. 
 the interest only, and the principal among the heirs male equally, 
 i. e. to his children being sons, who alone answered the description. 
 
 The case of Wilson v. Vansittart,(c] seems to class under this 
 head, although there were collateral circumstances confirmatory of 
 the intention. that children should not take in prcesenti with their 
 parent, which did not occur in the last authority. 
 
 In that case, James Wilson bequeathed " to his brother John, and 
 to his heirs male, equally to be divided among them," his residuary 
 personal estate ; excepting out of it 100Z. for his nephew John (who 
 was the son of his brother John ;) and another 100?. for his nephew 
 William Stephenson; and 800/. to be divided among the other 
 grand-children of his father's first marriage. Lords Commissioners 
 Smyth and Bathurst were clearly of opinion, that according to the 
 construction of the will, the testator's brother John took the whole 
 for life, with remainder to his sons equally. 
 
 The division of the fund equally among heirs male, clearly show- 
 ed, for the reasons before detailed, that the testator used the words 
 " heirs male" in the sense of male children, the construction being 
 ""so settled; the case of Law v. Davis is an authority for their taking 
 in remainder, aftec the death of their father, to whom a life-interest 
 in the fund was impliedly given ; an interpretation confirmed by the 
 circumstance of the legacy taken out of the residue for the son of 
 John, since that immediate gift to a child of John is inconsistent 
 with an intention in the testator for the other male children of John 
 to take with him the residue in prcesenti but quite reconcileable 
 with the construction, that John was meant to enjoy the residue for 
 life, and the male children the capital after his decease. 
 
 The last case which will be produced .upon the present subject, 
 is a decision on the simple question of a legacy to A. and to her 
 heirs ; the testator declaring that by the word " heirs," he meant 
 children, and which fully establishes the distinction before noticed, 
 when the word " children," or the word " heirs," explained to mean 
 children, is the term used in the bequest. 
 
 The case alluded to is, Crawford v. Trotter,(d] in which the form 
 of a bequest was to this effect : " To Lady Scott and to her heirs, 
 (say children) I give 1000Z. three per cent, reduced annuities. At 
 the date of the will, Lady Scott had children living ; and Sir John 
 Leach, V. C. was of opinion, that her ladyship was entitled for life, 
 with remainder to her children, and for the following reason : the 
 
 (a) Ante, fi. 70. (*) Cited 1 Ves. jun. 145. from Reg, Lib. 
 
 (c) Ambl. 562. (rf) 4 M^d. 361.
 
 88 Description of Legatees. [Cn. II. 
 
 word " heirs," which was used as synonimous with children, imparted 
 that the latter were to take after death. 
 
 3. It being always a question of intention as to the meaning of a 
 testator in the use of the word " heirs ;" if it appear that the intent 
 was for the heir, properly and technically such, to take the person- 
 al estate, there can be no objection to his title. An instance of that 
 intention may occur when a testator blends his real and personal 
 estates together ; and, after giving the fund to a person for life, di- 
 rects that his next heir at law shall afterwards succeed to it. In 
 this case, the intention that both estates should be enjoyed together, 
 is apparent ; and to divide them by giving the one to the next of kin 
 would be contrary to the words ; consequently, a court of equity 
 has no alternative but to adhere to the description in the will, and 
 to permit the person answering that description, viz. the heir at law 
 to enjoy the whole. 
 
 Accordingly in Gwynne v. Muddock,(e) Mr. Morgan bequeathed 
 to his daughter, Ann Williams, all his real and personal estates, to 
 enjoy during her life, and to be enjoyed after her death, by hiy 
 " next heir." Sir William Grant determined in favour of the testa- 
 tor's co-heirs, for the reasons before stated. 
 
 The subject which next regularly presents itself for considera- 
 tion is : 
 
 SECT. IV. The persons entitled under Bequests made to 
 
 "ISSUE." 
 
 1. The term "Issue" is of very extensive import, and when used 
 as a word of purchase, and unconfined by any indication of intention, 
 will comprise all persons who can claim as descendants from or 
 through the person to whose issue the bequest is made ; and in or- 
 der to restrain the legal sense of the term, a clear intention must . 
 appear upon the will. 
 
 In Davenport v. Hanbury,(f) the bequest was " to Mary Daven- 
 port or her issue." Mary died before the testator, leaving a son 
 and two grand-children, the descendants from a deceased daughter. 
 Lord Alvanhy decided that the grand-children were entitled with 
 the son, observing, there was no doubt that the word " issue" had 
 ever been considered as embracing other objects than children. He 
 also determined, that they took in joint-tenancy. 
 
 And in Freeman v. Parsley, (g] Lord Rosslyn made a similar de- 
 cree. There the testator devised a moiety of his real and personal 
 estates, in trust for his half-sister Elizabeth Rogers, and in case of 
 her death, to be divided among her lawful issue. The other moiety 
 he gave in trust for his five cousins equally, naming them, and in 
 case of any of their deaths, in trust as to their shares for their lawful 
 issue equally, and in default of such issue, for the survivors in equal 
 shares. Elizabeth and two of the cousins died before the testator, 
 leaving children and grand-children. Some of the parents of the 
 grand-children were living and others dead ; of the latter, part died 
 before, and the remainder after, the death of the testator ; but all 
 the grand-children were born during his life. They therefore being 
 
 (0 14 Ves. 488. (/) 3 Ves. 257. 
 
 (SO 3 Ves, 421, and see Leigh v. Worbury, 13 Yes. 340. 344. S. P.
 
 SECT. IV.] Description of Legatees. 89 
 
 in existence when the funds were distributable, claimed under the 
 description of issue of the original legatees, in the following manner : 
 grand-children, whose parents died during the life of the testator, 
 claimed the proportions their respective grandmothers would have 
 been entitled to, if they had survived him. Those grand-children, 
 whose parents out-lived the testators, (some of whom were living 
 and others dead,) and consequently took vested interests, claim- 
 ed equal shares with their parents in the proportions of the trust 
 funds which their grandmothers would have been entitled to, 
 had they been in existence. And Lord Rosslyn was of opinion, that 
 the claims of the grand-children were well founded, and decreed 
 accordingly. 
 
 So also in Bernard v. Montague,(h} portions were provided by 
 will for the testator's daughters, to be vested at a future and uncer- 
 tain period ; with a proviso, that if any of them previously died, leav- 
 ing issue, such issue were to take their parents shares. All the 
 daughters died during the life of the testator, except one named 
 Margaret, who was married, and when she died, which was shortly 
 after the testator, it was doubtful whether the event had happened, 
 upon which her portion was to vest ; so that an inquiry was direct- 
 ed. She left three children, two of whom died in infancy, and the 
 third, called Rebecca, died, leaving four children, grand-children of 
 Margaret. And with respect to their interests, supposing the re- 
 sult of the inquiry to be, that the portion did not vest in Margaret, 
 Sir William Grant said, " I am of opinion, that there is nothing 
 in the clause, directing the portion to go over in that event, which 
 should confine its operation ; but that the grand-children, as well 
 as the children, will be entitled under the general description of 
 " issue." 
 
 2. The preceding cases show the sense in which the word "issue" 
 is to be understood, when unexplained. And it may be proper to 
 observe, that when it appears clearly to be a testator's meaning to 
 provide for a class of individuals living at the date of his will, and 
 he provides against a lapse by the death of any of them in his life- 
 time, by substitution of their issue; in such a case, although that 
 word will include all the descendants of the designated legatees, 
 yet if any person, who would have answered the description of an 
 original legatee, when the will was made, be then dead, leaving 
 issue, that issue will be excluded, because the issue of those indivi- 
 duals only who were capable "dt taking original shares at the date 
 of the will, were intended to take by substitution; so that as the per- 
 son who was dead when the will was made, could never have taken 
 an original share, there is nothing for his issue to claim in his place. 
 To exemplify this : 
 
 Suppose A. to-.-bequeath a legacy to the children of B. which he 
 now has by C. his wife, but if any of them die before A. their shares 
 shall go to their lawful issue. Should a child of B. happen to be 
 dead when the will was made, leaving issue, that issue can take 
 nothing for the reason before mentioned. (i) 
 
 3. Although " issue," when abstractedly considered, is of so exten- 
 
 I 1 Meriv. 424-434. 
 
 See Christofiherson v. Miylor, 1 Meriv. 320. stated ante, p. 46. 
 VOL. I. M
 
 90 Description of Legatees. [Cn. II. 
 
 sive an import, as to include all the descendants of the object de- 
 scribed, yet when it can be collected from the will, that a testator 
 in using the word, did not intend it should be understood in its com- 
 mon acceptation, the import of it will be confined to the persons 
 whom it was intended to comprehend. Or, in the words of Lord 
 Eldon, " if upon fair reasoning, deduced from the words of the will, 
 all the contents and the design and tenor of it, as manifested by its 
 contents, show the word " issue" to be meant in a more restrained 
 sense, that sense may be given to it. "(A;) From these remarks, it 
 appears not only that the intent to restrain the legal import of the 
 term " issue" must be clear, but also that evidence of such inten- 
 tion, independent of the will, is inadmissible. With respect to au- 
 thorities, in support of the above observations : 
 
 In Horsepool v. Watson,(l) lands were devised to James Horsepool 
 and his wife Mary for life, remainder, after the death of the sur- 
 vivor, to trustees, to sell, and apply the produce among all the issue, 
 child or children, male or female, of James by his wife Mary, and 
 their representatives, equally. At the death of the survivor of James 
 and Mary, there were several children, one of whom, a daughter, 
 having survived the testatrix, died during the life of the survivor of 
 her parents, having first married, and left children. There were 
 also other grand-children of James and Mary; and the question was 
 between the surviving children, the grand-children, and the husband 
 of the deceased child, who claimed as her administrator. The 
 Chancellor determined two points: first, that the testatrix had re- 
 strained the general import of the word " issue" by the terms " child 
 or children" immediately 'following, so that grand-children, whose 
 parents were living, could not take with their parents under the ori- 
 ginal bequest. And secondly, that the grand-children whose mother 
 died before the survivor of James and Mary Horsepool, were entitled 
 in preference to their father, claiming as the mother's administrator ; 
 because the testatrix had shown her sense of the word " represen- 
 tatives" by the term " issue," viz. representatives, being issue. 
 
 In the following case ofSibley v. Perry, (m) Lord Eldon consider- 
 ed the contents of the will as affording that species of evidence of 
 the testator's meaning, which was sufficient to restrain the word 
 "issue" to the sense of children. 
 
 That case consisted of a variety of legacies ; the first of which 
 was a bequest of 1000Z. in the three per cent, consols to each of the 
 testator's relations, John, Robert aim Mary Dixon, if living at his 
 death ; but in the event of all or any of them previously dying, he 
 willed " that the lawful issue of every one of them so dying should 
 equally have and enjoy the 1000Z. stock, which their respective 
 parents, if living, would have had." And Lord Eldon said, that as 
 the word " parents" must be understood father or mother, which 
 more clearly appeared from the next legacy, the correlative term 
 " issue" must be taken in the sense of children. 
 
 The second bequest just referred to, was of a like sum of money 
 given to John Dixon, " if living at the testator's death, and to his 
 lawful issue equally, if he the parent should then be dead." His 
 
 (A-) 7Ves. 53L (/) 3 Ves. 383. (m) 7 Ves, 522.
 
 SECT. IV.] Description of Legatees. 91 
 
 Lordship observed, it was certain that the testator did not mean 
 grandfather by the word " parent." By referring to John Dixon as 
 parent, he showed his sense of the expression to be the father, and 
 that he intended by the term " issue" the children of John. 
 
 And thirdly, the testator proceeded to give three legacies to the 
 " issue" of persons whom he supposed to be dead. The first was 
 bequeathed " to each lawful issue who might be alive at his death 
 of his father's sisters, whose names were Martha, Mary and Rebecca, 
 to each of them living, and lawful issue 1401. stock." The second 
 was " to each of the lawful issue, and also to the widow of the late 
 Thomas Denson, 130Z. stock, if living at my decease." And the 
 third was given in similar terms to the issue of the late Robert Den- 
 son. Next followed legacies to parents and their children, to a 
 widow and her daughter, to a son whose parents were dead ; and to 
 the daughters of the defendant Sibley. Lord Eldon considered the 
 three legacies given to " issue" as well as the preceding to be in- 
 tended for children only; because the clauses in the will by which 
 the prior bequests were made, showed that the testator meant the 
 word " issue" in the sense of children alone. Added to which, the 
 whole tenor and design of the instrument confirmed that intention, 
 for the testator appeared from it to have designed to give to children 
 generally under different descriptions: 1st, by the word "issue;" 
 and 2dly, by the words "children" and "daughters;" by which the 
 general term " issue" was explained and restricted, as in the before 
 stated case of Horsepool v. Watson. His Lordship finally declared, 
 that upon the true construction of the will, and the whole of it taken to- 
 gether, the testator, by the words " lawful issue," meant " children ;" 
 according to which the distribution ought to be made. 
 
 The distinctions noticed in the las); section upon the subject of 
 the word " heirs, "> 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.(</) The principle then, 
 upon which a Court of Equity resorts to the Statute of Distributions 
 to ascertain the legatees, is necessity, in consequence of particular 
 objects not having been pointed out by testators. In all such in- 
 stances, the statute regulates the degree as also the proportions in 
 which the legatees are to take, subject as to the latter, to this modi- 
 fication : that if the will specify the shares into which the fund is to 
 be divided, so far the statute will be superseded, and the division 
 must be made according to the will, among the legatees, either per 
 capita, or per stirpes and capita, as will appear from the cases which 
 will be afterwards produced. But that relations more remote than 
 those included within the statute were intended, cannot be shown 
 by parol evidence ; for the sense of words as fixed by legal authority, 
 is not to be altered by language held on any occasion by testators, 
 or by their behaviour. (r) We shall proceed to consider, 
 
 1. The authorities by which it was established, that under a be- 
 quest to " relations," none were entitled but those who, in case of 
 intestacy, could have claimed by the Statute of Distributions. 
 
 In Roach v. Hammond,(s) the testator devised his real and per- 
 sonal estates to the defendant " for the use of his relations ;" and the 
 Court decided that the persons to take, and the proportions, were 
 to be determined by the Statute of Distributions ; the Chancellor 
 remarking, that he thought it the best measure for setting bounds to 
 such general words. Again, 
 
 In Thomas v. Hole,(t) the testator bequeathed 500Z. " to the 
 relations of Elizabeth Hole, to be equally divided between them." 
 When the testator died, Elizabeth had two brothers living, and 
 several nephews and nieces, the children of a deceased brother. 
 Lord King determined two points. First, that no relations should 
 take under the above description, who were excluded by the Statute 
 
 (o) 22 & 23 Car. II. chap. 10, explained by 29 Car. II. chap. 30. 
 (/O Cotton v. Scarancke, 1 Mad. 45. (y) 1 Bro. C. C. 33. 
 
 (r) 1 Bro. C. C. 33. ( s ) p re . Ch. 401 
 
 (0 Forrest, 251. and see Masters v. Hoofier, 4 Bro. C. C. 207. 5. P.
 
 SECT. V.] Description of Legatees. 93 
 
 of Distributions ; and, secondly, that the distribution should be equal 
 among the persons included in the statute per capita as directed by 
 the will ; so that each of the nephews and nieces was entitled to the 
 same share as each brother ; a division contrary to the statute, which 
 directs that the children of deceased brothers and sisters shall only 
 succeed to the shares of their parents. 
 
 And in Green v. Howard,(u) the testator gave 4000Z. to his wife 
 for life, remainder " to his own relations, who should be then alive." 
 There were several legacies in the will to first and second cousins ; 
 and it was in evidence, that the testator was accustomed to receive 
 his second cousins with equal kindness as the first. The second 
 cousins therefore claimed to participate with the first in the legacy 
 of 4000Z. But Lord Thurlow, C. decided against the claim, and re- 
 jected the evidence to explain the legal sense of the word relations. 
 
 The last case appears to be an authority for the proposition, that 
 the gift of the legacies to relations in a degree farther removed than 
 those entitled under the Statute of Distributions, will not be suffi- 
 cient to include them in a bequest to " relations" upon the ground 
 of presumptive intention. The principle seems to be this: that when 
 a rule has once been established, it is most eligible to adhere to it, 
 and not to permit exceptions upon mere conjecture or refined specu- 
 lation. Lord Thurlow, acting upon that principle in the next case, 
 as in the last, determined, that although the testator excepted, out of 
 a bequest to relations, a nephew, whose mother was living, such 
 circumstance was insufficient, upon presumed intention to let in 
 other nephews and nieces of living parents to take with the testator's 
 surviving sisters and the children of his deceased brother. 
 
 Thomas Mowbray(x] devised his real estate in trust for his wife 
 for life, directing his trustee to sell the lands after his wife's death, 
 and " fo divide and pay the proceeds to and among all and every 
 such person and persons who should appear to be related to him (the 
 testator) only" in equal shares (except his nephew, John Wood.) 
 The question was, whether any persons could take shares of the 
 property but those who were entitled under the Statute of Distribu- 
 tion 1 The claimants were surviving sisters of the testator, children 
 of a deceased brother, and children of surviving sisters ; and it was 
 insisted for the latter children, that the testator, in excluding the ne- 
 phew, whose mother was living, and who consequently was not one 
 of the next of kin of the testator, clearly intended to comprise indi- 
 viduals in the term relations, who were allied to him in the same de- 
 gree as the excluded nephew. But Lord Thurlow was of a different 
 opinion, for the reasons before mentioned. 
 
 Lord Rosslyn also adhered to the rule in Devisme v. Mellish,(y) in 
 which the testator bequeathed 501. for a mourning ring " to each of 
 his relations by blood or marriage." The question was, what rela- 
 tions were entitled'? It was contended, that the. word "relations" 
 must be confined to the Statute of Distributions, and to persons who 
 had married relatives entitled under that Act. And so his Lordship 
 decreed. 
 
 It may be proper to notice, that the rule has not been confined to 
 a court of equity, but has been adopted by a court of law in regard 
 
 () 1 Bro. C. C. 31. (x) Rayner v. Mo-wbray, 3 Bro. C. C. 234. (y) 5 Ves. 529.
 
 94 Description of Legatees. [Cn. II. 
 
 to freehold estates. Mansfield, C. J. of the Court of Common Pleas, 
 observing, that since the word " relations" was held to mean in a 
 court of equity, those persons who were entitled under the Statute of 
 Distributions, he did not see why it should riot receive the same con- 
 struction in a court of law.(2) 
 
 As the same uncertainty in the description exists in the words " to 
 my, or who are, my near relations ;" the generality of the expres- 
 sions will be restrained to persons entitled under the Statute of Dis- 
 tribution. 
 
 Thus, in Whithorw v. Harris,(a) Mrs. Withorne bequeathed in 
 these words : " I give to all and every person and persons who are 
 near relations to me, if any such there be, 250Z. to be paid within a 
 year after my decease ; but if there be any such person or persons 
 who are related to me, and do not apply for payment within that 
 time, then I give the said sum to my executors." No nearer relations 
 than first cousins applied within the year, yet a question arose 
 whether second cousins were not included as " near relations'?" And 
 Lord Hardwicke declared, that the testatrix's next of kin were alone 
 entitled, and ordered the legacy to be paid to the first cousins. 
 
 The particular objects intended by a testator, are rendered a little 
 more certain by his prefixing the word "poor" to that of" relations." 
 The Court, therefore, has not implicitly followed the Statute of Dis- 
 tributions in this instance ; but as Lord Thurlmo observed in Green 
 v. Howard,(b) it has shown particular favour to one or more relations, 
 according to their greater need. Suppose then, a legacy be given 
 to the testator's " poor" or "necessitous" relations, the Court would 
 so far adhere to the statute, as to limit the number to his next of 
 kin, and depart from it in distributing the property among such of 
 that number as were poor, and in want of assistance in exclusion of 
 the rest. 
 
 In an anonymous case,(c) a testator bequeathed the surplus of his 
 personal estate to his " poor relations." The question seems to have 
 been, whether the Countess of Winchelsea, who was one of the 
 next of kin, and whose circumstances were greatly inadequate to the 
 support of her rank, was entitled to a share of the residue under the 
 description of a poor relation, and it was determined in the affirma- 
 tive. 
 
 Notwithstanding the observation of the reporter at the foot of 
 the case, it would 'seem that the decision is perfectly correct. The 
 objects were to be poor relations. The countess not only answered 
 the description, but was also one of the testator's next of kin. There 
 appears, therefore, to have been no good reason to exclude her from 
 a share of the residue. 
 
 The last case was followed by Sir Thomas Sewell, M. R. in 
 Brunsden v. Woolredge,(d) in which the testator directed, that after 
 the death of his two brothers, without having children, a sum of 500Z. 
 " should be equally distributed among his mother's poor relations." 
 The brothers died without children ; and the mother's next of kin 
 
 (z) See Doe v. Overt I Taunt. 263-269. Sfiring ex dem. Titcher v. Biles, 1 
 Term Rep. 435. 438. in a note. (a) 2 Ves, sen. 527. and see 19 Ves. 403. 
 
 (b) 1 Bro. C. C. 31. and see 2 Ves. sen. 87-110. (c) 1 P. Will. 327. 
 
 (rf) Ambl. 507. 1 Dick. 380. S. C.
 
 SECT. V.] Description of Legatees. 95 
 
 were nephews and nieces. There were also great nephews, &c. 
 And the question was, who were entitled under the above descrip- 
 tion *? It appears from Dickens, whose report corrects that of Am- 
 bler, that Sir Thomas Sewell limited the number of relations accord- 
 ing to the Statute of Distributions, and divided the fund among the 
 poor of that class ; consequently, grand-nephews, &c. (not being 
 within the statute) were excluded. Mr. Dickens thus reports the 
 words of that Judge : " The question in the cause is, who are poor 
 relations l Relations must be confined to next of kin ; and poor re- 
 lations must be such as want assistance, and are next of kin according 
 to the statute. "(e) 
 
 Since it appears to be the sole intention of the testator to make 
 provision for his poor relations, it necessarily follows that claimants 
 to be successful must answer that description when the fund is to be 
 distributed ; for if a relation who was poor, become rich before the 
 period of division, he will be excluded. (f) 
 
 The same "rules of construction seem to apply when the terms of 
 bequest are " to my most necessitous" or " poorest" relations, as to 
 " my poor relations." It appears convenient to adopt the statute in 
 fixing the number of relatives, and then to divide the fund among 
 the most indigent individuals in that number, when there are more 
 persons than one answering the description of next of kin ; for it 
 would seem from the case next stated, that if the next of kin were 
 only one individual, he would take the whole. 
 
 In Widmore v. Woodroffe,(g) the testator Widmore directed a third 
 part of his residuary personal estate " to be distributed among the 
 most necessitous of his relations by the father and mother's side." 
 The" question was; whether Mary Woodrojfe, the sole next of kin 
 of the testator, should take the whole third ; or whether two 
 other persons in a more remote degree of kindred should partici- 
 pate with her *? For the two latter persons, the word necessitous 
 was relied upon, together with the direction for a distribution of 
 the fund. But Lord Hardwicke was of opinion, that the statute 
 was to be adhered to, and that Mary, being sole next of kin, was 
 alone entitled. 
 
 It is observable in the last, as the former case of Woolredge v. 
 Brunsden, the legacies were to be distributed among " poor," and 
 " most necessitous" relations, but by whom is not mentioned ; so 
 that no special confidence was placed in any particular person to 
 make a selection of the objects, an omission which distinguishes the 
 two cases from those to be afterwards stated. Since therefore the 
 relations to take under the above descriptions were to be ascertained 
 by a court of equity, it, as usual, called in the assistance of the 
 Statute of Distributions. 
 
 The term " relations" will be equally confined to the limits of the 
 statute, where a power is delegated to a person to fix the amount of 
 the share that each relation is to take, without entrusting him with a 
 selection^of the objects ; for in such a case, the act appoints the per- 
 sons, viz. " the next of kin" in existence at the death of the testator. 
 They then take vested interests, subject only to be altered in amount 
 
 (e) See distinction by Sir William Grant, 17 Ves. 374. 
 
 (/) 1 Scho. & Lefroy, 111. (#) Ambl. 636.
 
 96 Description of Legatees. [Cn. II. 
 
 by an exercise of the power, which if not at all, or not, legally exe- 
 cuted, a court of equity will direct the property to be divided among 
 them according to the statute, in exclusion of such of them as may 
 afterwards happen to answer the description, at the death of the 
 donee of the power. 
 
 Thus in Pope \. Whitcombe,(h) James Childe bequeathed his resi- 
 duary estate to his wife for life, remainder to his son absolutely, if 
 he attained the age of twenty-one, but if he died before that period, 
 and without issue, the testator, after giving some legacies, directed 
 his wife to dispose of the residue " among his relations, in such 
 manner as she should think proper." The contingencies happened 
 upon which the power was to arise, and the wife not having made a*" 
 good appointment in consequence of distributing the fund among 
 persons not within the statute, Sir W, Grant, ordered it to be divid- 
 ed among the next of kin of the testator at his death. 
 
 We shall next consider : 
 
 2. When the indefinite term " relations," will be permitted to com- 
 prise relatives more distant than those mentioned in the Statute of 
 Distributions. 
 
 In treating of the subjects belonging to this sub-division, we shall 
 consider them as exceptions to the general rule, that in bequests to 
 relations, none but next of kin are entitled; and the exception with 
 which we commence, shall be^ 
 
 FIRST, where the terms of bequest are to "poor relations." 
 
 It appears from the cases before stated, that a legacy to " poor re- 
 lations" is to be regulated by the Statute of Distributions ; but the 
 authority about to be produced is an instance of an apparently simi- 
 lar bequest, which was holden to comprehend relatives more remote 
 in degree than those within the limits of the Statute of Distributions. 
 To reconcile this with the former cases, recourse must be had to a 
 distinction which exists, when a legacy is given to " poor relations," 
 as a charity to be continued and enjoyed by persons in succession 
 answering the description, and when it is given among individuals, 
 required at the period of distribution, to be " poor relatives," and 
 that distribution is to be once only and final. In -the latter case, it 
 has been shown, that the statute regulates the number and degrees 
 of relations to take under such a description ; but in the former, un- 
 less a court of equity were to consider the bequest in the class of 
 charitable dispositions, it would be void, as preventing the circulation 
 of personal property beyond the limits allowed by law. When 
 therefore it appears from the will, that a testator intended to appro- 
 priate a sum of money not only for his then existing poor relations, 
 but for those to succeed without limitation as to time, a court of 
 equity will support the bequest as a charity ; and admit, without re- 
 gard to the Statute of Distributions, all the testator's poor relations 
 of his own blood, to be ascertained by a master of the Court, upon 
 a plan or scheme laid before jjim. 
 
 Thus, in White v. White,(i) the legacy was of 3000Z. stock, for the 
 purpose of putting out " our poor relations" apprentices. Sir Wil~ 
 
 (A) SMeriv. 689. 
 
 (t) 7 Yes. 423, and see Isaac v. De Friez, in a note, 17 Ves. 373, incorrectly re- 
 ported in Ambl. 595.
 
 SECT. V.] Description of Legatees. 97 
 
 Ham Grant, M. R. supported the bequest as a charity, which would 
 otherwise have been void for the reason before mentioned. 
 
 His Honour also made a similar decision, and for the same reason, 
 in the Attorney General v. Price,(k) upon the following bequest : 
 " Also that at what time soever the possession of the same premises 
 shall come to him by virtue of this my will, yearly from thenceforth 
 he, the said EvanJohnes, and his heirs shall for ever divide and dis- 
 tribute according to his and their discretion, among my poor kinsr 
 men and kinswomen, and among their offspring and issue, which 
 shall dwell within the county of Brecon, the sum of 201. by the 
 year, without fraud and collusion." An inquiry was directed after 
 all the testator's poor relations within that county. 
 
 SECOND. Another exception to the general rule will happen when 
 a testator has delegated a power to an individual to distribute the 
 fund among his (the testator's) relations, according to his discretion, 
 In such an instance* whether the bequest be made to " relations" 
 generally, or to " poor," or " poorest," or " most necessitous" rela- 
 tions, the person may exercise his discretion in distributing the pro- 
 perty among the testator's kindred, although they be not within the 
 Statute of Distributions. 
 
 Accordingly, in Mahon v. Savage,(l) the testator gave to his exe~ 
 cutor Savage 10001. to be distributed among his poor relations, or 
 such other objects of charity as should be mentioned in his private 
 instructions to his executors ; but of which there was no appearance. 
 Upon a reference to the Master to inquire who were the testator's 
 poor relations, he reported a number exceeding fifty, many of whom 
 were related to him beyond the degree prescribed by the Statute of 
 Distributions. Lord Redesdale held, that the intention was charity, 
 and the gift, not to relations merely, but to relations as objects of 
 charity; and that the executors had a discretionary power of ap- 
 pointment, so as not to be under the necessity of including all the 
 testator's poor relatives ; and it appears from the decree referring to 
 the Master's report, that the executors were not restrained, in the 
 exercise of their discretion, to relations within the Statute of Dis- 
 tributions ; for they were to be at liberty to lay before the Master a 
 plan for distributing the fund among the poor relations named in the 
 report, according to their discretion. 
 
 So in Spring on the demise of Titcher v. Biles,(m] the testator 
 empowered his wife to dispose of his residuary real and personal 
 estates by will " to and among such of his relations as should be 
 living at his death, in such shares -as she should think proper." The 
 wife appointed the lessor of the plaintiff, who was a relation of the 
 testator, but not within the Statute of Distributions ; for which rea- 
 son it was contended that the appointment was void. But the Court 
 of King's Bench were of a different opinion ; holding that the power 
 was discretionary, and might be exercised in favour of any one re- 
 lation. 
 
 And if a suit in Chancery be instituted for tho administration of 
 assets under the direction of that Court, it will ascertain the num- 
 ber of relations, and order the property intended for them to be dis- 
 
 f) 17 Ves. 371. (/) 1 Scho. & Lefroy, 111, and see 16 Ves, 43, 
 
 (m) 1 Term Rep. 435, 8va ed. in notes, 
 VOL. I. N
 
 98 Description of Legatees. [Cn. II. 
 
 tributed among such of them, and in the proportions the executors 
 or other persons entrusted with the selection shall propose, in a plan 
 approved of by a Master. This was .done in the case of Mahon v. 
 Savage, before stated. 
 
 So in Bennett v. Honeywood,(n) the testator bequeathed 20,0001. 
 by a codicil to his executors, in trust to distribute and dispose of, 
 " among such of his relations by consanguinity, and not by mar- 
 riage, as should not appear to them to be worth, each person more 
 than 20001. and who should apply for shares within two years after 
 his death : the distribution to be made among such of his relations 
 as aforesaid, at the times, and in the manner and proportions, or 
 disproportions, as his executors in their discretion should judge to 
 be most proper :" those circumstances being referred entirely to 
 the judgment and discretion of his executors. There were many 
 claimants : and Lord Camden, C. ordered a Master to ascertain the 
 number of relations entitled under the codicil, and then directed the 
 distribution of the legacy to be made by the executors according to 
 their own judgment and discretion, provided they allotted some 
 share to each person entitled to the money. 
 
 This power and discretion to executors or trustees is a personal 
 trust or confidence reposed in them as individuals, and not a minis- 
 terial duty flowing from that office, and therefore cannot be dele- 
 gated to another. When the authority, therefore, is given to two 
 or more persons, without mentioning the survivors, and one of them 
 dies or declines to act, it cannot be exercised by those who remain, 
 either alone or even with the concurrence of a new trustee appointed 
 by the Court of Chancery in the place of the deceased. (o) And if 
 the power be given to the survivor of two executors or trustees, 
 without naming his executors, and he die before exercising it, the 
 authority will determine, since his executors are not entrusted with 
 the execution of the power ;(p) which being personal, the persons 
 to exercise it must be quasi persona designate of the testator, as 
 the executors of a surviving executor or trustee may be when nomi- 
 nated by the original testator. But the representatives so desig- 
 nated must precisely answer the description and intention of the 
 will, or the power will fail. To illustrate this : Suppose a testator 
 to appoint A,, B. andC. his executors and trustees, with a power for 
 them, and the survivors, and the heirs, executors, and administrators 
 of the survivor, to distribute his real and personal estates among 
 such of his relations as they in their discretion shall think proper : 
 that A., B. and C. died without executing the power, and that C. 
 the survivor passed the trust-property by will to trustees for the only 
 and express purposes of the will of the original testator, nominating 
 them also executors for those objects, and appointing other exe- 
 cutors of his own property. In such a case the power would be 
 extinct by the death of C. ; because it having been at first given to 
 the same persons uniting in themselves the offices of executors and 
 trustees, to whom were given both funds for the sake of discre- 
 tionary distribution, it is required that those who succeed them for 
 
 (n) Ambl. 708. 
 
 (o) Dot/ley v. the Attorney General, 4 Vin. Abr. 485. pi. 16. 7 Ves. 58. in 
 note, S. C. (/z) Flanders v. Clark, 1 Ves. sen. 9.
 
 SECT. V.] Description of Legatees. 99 
 
 the purpose of executing the power should be both heir and exe- 
 cutors, and not that the land should go to one as heir, and the per- 
 sonal estate to others as executors ; so that in the case supposed the 
 trustees of C. could not execute the power, because it was inca- 
 pable of delegation, and none of them was the heir of C. : neither 
 could it be exercised by the heir of C. for he was not also executor ; 
 nor could it be executed by the executors of C. because no one of 
 them was his heir. When the power fails under such or any other 
 circumstances, the object of the devise will not be disappointed ; 
 for the disposition is a mixture of trust and power, and the extinc- 
 tion of the latter does not affect the former. A court of equity, 
 therefore, will perform the trust expressed to be for relations, and 
 distribute the funds in the degrees and proportions mentioned in the 
 Statute of Distributions, among the testator's next of kin in exist- 
 ence at the death of the donee of the power, and not of the testator ; 
 because, until appointment or the death of the donee of the power, 
 no relatives take vested interests in the property, but the whole is 
 contingent ; and who may be the persons entitled, whether those 
 included or hot included within the Statute of Distributions, or both, 
 is a point of absolute uncertainty. In Cruwys v. Coleman,(q] Sir 
 William Grant observed, that " according to Harding v. Glyn 
 (after stated), where a power of selection is given in favour of the 
 testator's own relations, and that power is not executed, the pro- 
 perty undisposed of, will go to the next of kin, at tlie death of the 
 party who had the power. 
 
 All these points were considered in the recent case of Cole v. 
 Wade,(r} where the testator Booth gave all his real and personal 
 estates to Messrs. Ruddle fy Wade, whom he appointed executors of 
 his will, their executors, administrators and assigns, upon the trusts 
 of it, and particularly as to all the residue of his real and personal 
 estates, to dispose of them for the benefit of " such relations and 
 kindred a* they should think proper" And after they were ascer- 
 tained by sufficient evidence, he ordered his trustees and executors 
 to convey and dispose of both funds " unto and among such of his 
 relations and kindred, in the proportions, manner, and form as his 
 said executors should think proper ;" at the same time recommend- 
 ing the greatest share to be given to the persons whom they should 
 think to be his nearest relations ; but he declared that he did not 
 mean by such recommendation to control the discretion of his exe- 
 cutors and trustees, it being his intention that such discretion " in 
 his said trustees and executors, and the heirs, executors and adminis- 
 trators of the survivor of them," should be absolute in every partic- 
 ular relating to that disposition, as well to decide who were re- 
 lations, as the proportions they should be respectively entitled to in 
 the residue. Wade survived his co-executor and trustee, and devi- 
 sed all the property to Messrs. Bray, two trustees, for the purposes 
 expressed in the will of Mr. Booth, and whom he made executors for 
 those objects solely. Under these circumstances, Sir W. Grant de- 
 cided 1. That the power being confidential and personal, was 
 gone by the death of the surviving execufor and trustee. 2. That it 
 could not be delegated, and consequently the will of the surviving 
 
 (y) 9 Ves, 325. (r) 16 Ves . 2r-43.
 
 100 Description of Legatees. [Cn.il. 
 
 executor and trustee was so far inoperative. 3. That the defect was 
 not remedied by the original testator declaring the discretionary 
 power to belong to the " heirs, executors and administrators" of the 
 surviving trustee, because he intended the heirs and executors or ad- 
 ministrators of such trustee to be the same person or persons, which 
 appeared from the original trustees and executors being the same 
 individuals, their interests and powers being co-equal and co-exten- 
 sive ; so that the trustees in the will of the surviving executor and 
 trustee of Mr. Sooth, not being his heir, did not answer the descrip- 
 tion in Mr. Booth's will, and could not execute the power. 4. That 
 the distribution of the property should be made by the Court : and 
 lastly, That the objects of distribution were " next of kin" living at 
 the testator's death. 
 
 The decision upon the last point can only be reconciled with pre- 
 ceding determinations, and his Honour's own declaration in Cruwys 
 V. Coleman before mentioned, under the supposition that the trus- 
 tees and executors had not the power of selecting the objects, but 
 merely of apportioning the shares, a construction which it may be 
 thought difficult to support upon the will last stated. 
 
 The case of Harding v. Glyn,(s) is a principal authority upon the 
 subject of the present exception. The bequest after the death of the 
 testator's wife, (to whom he gave a leasehold house, and several arti- 
 cles of personal estate for life,) was, " unto and among such of his 
 own relations as she should think most deserving and approve of." 
 The wife appointed the house by will, to a Mr. Swindell, who was 
 related to the testator, but not within the Statute of Distributions, 
 and she made no appointment of some parts of the personalty. The 
 " Master of the Rolls" determined first, that the appointment of the 
 house was valid, although the appointee was not one of the testa- 
 tor's next of kin : secondly, that the personalty undisposed of was 
 to be distributed by the Court under the Act ; and lastly, that the 
 objects of distribution were next of kin of the testator, at the death 
 of his wife, the donee of the power. 
 
 The next case of Gower v. Mainwaring,(t) shows that there is no 
 distinction between a will and a deed upon this subject. 
 
 There Mr. Mainwaring by deed, directed his trustees (three in 
 number,) to give his residuary real and personal estates " among 
 his friends and relations, where they should see most necessary, and 
 as they should think most equitable and just." Two of the trustees 
 died, and the third declined to act. Lord Hardwicke ordered the 
 fund to be divided between a brother and nephew of Mr. Main- 
 waring, according to their necessities and circumstances with the 
 approval of a Master of the Court. 
 
 THIRD. It is presumed that a further exception to the rule which 
 confines the word " relations" to next kin, may occur where a tes- 
 tator has fixed a certain test, by which the number of relatives in- 
 tended by him to participate in his property, can be ascertained. 
 In such a case, as there exists no impracticability to execute the 
 intention, it should seem that a court of equity would distribute the 
 
 (*) 1 Atk. 469. and stated from Reg. Lib. 1738; A. 5 Ves. 501. and see JDoyley 
 v. Att. ten. 4 Vin. Abr. 485. pi. 16. & P. 
 (0 2 Ves. sen, 87. 110.
 
 SECT. V.] Description of Legatees. 101 
 
 funds among all the testator's relatives answering the description, 
 although some of them might happen not to be within the degree 
 of the Statute of Distributions. 
 
 Suppose, then, a legacy to be given to such relations of the tes- 
 tator as should not be worth 500Z. It is inferred from the case of 
 Bennett v. Honey wood,(u) and for the reasons before mentioned, that 
 the kindred of the testator, establishing before a Master, that their 
 property is within the standard sum, will be entitled to shares of 
 the bequest, without regard to the limits prescribed by the Statute 
 of Distributions. 
 
 FOURTH. 'The principle of the last exception, establishes ano- 
 ther, viz. where a testator has shown an intention in his will, (for it 
 cannot be done by parol evidence)(x) to comprehend relations more 
 remote than those entitled under the statute ; in that case his inten- 
 tion will prevail, because the statute is only substituted from neces- 
 sity, as before noticed. 
 
 Thus in Greenwood v. Greenwood,(y) a testatrix bequeathed her 
 residuary estate to be divided between her relations, i. e. the Green- 
 woods, the Everits, and the Dows. The Everits, although not re- 
 lated to the testatrix within the statute, were permitted to take joint- 
 ly with her next of kin, the Greenwoods and the Dows, for the term 
 relations is explained by the context of the will, and extended be- 
 yond the confines of the statute. 
 We proceed to consider 
 
 3. When the word " relations" or " relation" may be so qualified 
 as to exclude some of the next of kin from participating in the be- 
 quest ; and this will happen when the terms of bequest are to " near- 
 est relations." The only ambiguity of those words arises from the 
 omission of the testator to name the individuals who answer the des- 
 cription ; but this obscurity is removed with the same facility as in 
 discovering who are next of kin in cases of intestacy. There is, 
 therefore, no necessity for a court of equity to resort to the statute, 
 to give partial effect to the intention of the testator ; so that, whoso- 
 ever is the nearest relation will be entitled to the legacy, in prefer- 
 ence to all others, although some of them would have been admit- 
 ted under the statute, if there had been an intestacy. As an ex- 
 ample : 
 
 In Smith v. Campbell,(z) Mr. Smith while stationed in India, be- 
 queathed that his residuary property should be " equally distributed 
 among his nearest surviving relations." He left at his death a bro- 
 ther and sisters, and nephews and nieces, the children of a deceased 
 brother. And Sir W. Grant, M. R. decided, that the brothers and 
 sisters, as nearest of kin to the testator, were entitled in exclusion 
 of the nephews and nieces. 
 
 In a prior case of Marsh v. Marsh,(a] Lord Rosslyn made a simi- 
 lar determination. There Mr. MUbourne bequeathed the residue of 
 his personal estate upon , a contingency (which happened) unto his 
 " nearest relation." The claimants were a half sister, and the chil- 
 dren of a deceased half-brother. His Lordship decreed the whole 
 
 (u) Ambl. 708-710. (.r) Ambl. 71. 1 Bro. C. C. 33. 
 
 (t/) 1 Bra C.C. 32. in a note, and on this subject see Stamfi v. Cooke,- 1 Cox, 235. 
 
 (z) 19 Ves. 400. Coop. 275. S. C. (a) 1 Bro. C. C. 293.
 
 102 Description of Legatees. [On. II. 
 
 fund to the half-sister, as being more nearly related to the testator 
 than the children of the half-brother. 
 
 It was remarked by Lord Rosslyn in the last case, and decided by 
 by Sir W. Grant in the one stated before it, that if there had been 
 more persons than one in the same degree of kindred, there must 
 have been a division among them, because each would have been 
 nearest relation. Hence it appears, that the word " relation" is (as 
 observed by Lord Hardwicke in Pyot v. Pyot,(b) nomen collectivism 
 as much as " heir," and when preceded by nearest includes all re- 
 lations in the same degree. 
 
 The case of Edge v. Salisbury, (c) has generally been considered 
 as a determination by Lord Hardwicke, that nearest when prefixed 
 to "relations" will not prevent the application of the Statute of 
 Distributions, so as to exclude any of the next of kin from participa- 
 ting in the bequest couched in those terms, although they be not in 
 equal degree of kindred. But it must be conceded to the remark 
 of Sir W. Grant, in Smith v. Campbell,(d) that the facts of the case 
 did not require a decision upon such a question, as the testator's 
 nearest relations were nephews and nieces, and only next of his kin ; 
 so that " Lord Hardwicke (as his Honour justly observed) had no 
 occasion to consider whether supposing the next of kin had compri- 
 sed a larger description of relations, he would have let in all the 
 persons who would have been entitled in the event of intestacy, 
 though not answering the description of nearest relations." 
 
 When the terms of bequest are not confined to " nearest relation," 
 but require the legatee to be of the " name" of a family as thus : 
 " to my nearest relation of the name of the Rowes ;" .the relatives 
 must not only be nearest in degree, but must be of the stock of the 
 Rowes, and entitled to the name as branches of the family. Yet, if 
 the person answering the description of nearest relation were a 
 female, and originally bore the family name of Rowe, which, at the 
 testator's death, or other period of the legacy taking effect, happen- 
 ed to be lost in consequence of marriage; that nominal alteration 
 will not exclude her from the bequest, because the testator, in adopt- 
 ing the word " name," intended to express that his nearest relation, 
 being of the stock or family of the Rowes, and entitled to the appel- 
 lation of Rowe by birth, should have the benefit of the legacy. 
 There is no condition requiring the legatee to be of that name when 
 the disposition is to take effect; consequently, as the female rela- 
 tive is the nearest of kin, and originally entitled to, and before mar- 
 riage called by the name of Rowe, her title to the legacy is complete. 
 As an authority for this : 
 
 In Pyot v. Pyot,(e) Lady Withringham devised her real and 
 personal estates to trustees, for her daughter Mary in fee ; but if she 
 died before twenty-one or marriage, the trustees were directed to 
 convey and assign those estates to the testatrix's " nearest relation 
 of the name of the Pyots" absolutely. The contingency happened, 
 and at that time, as also at the death of the testatrix, her nearest of 
 kin consisted of four individuals, viz. a man and two unmarried sis- 
 ters of the name of Pyot, and another sister who was married at the 
 
 ( b) 1 Ves. sen. 337. (c) Ambl. 70. (d) 19 Ves. 403. 
 
 (0 1 Ves. sen. 336. and see Mayott v. Mayotf, 2 Bro. C. C. 125. ed. by Belt.
 
 SECT. V.] Description of Legatees. 103 
 
 date of the will, and who was originally of that name, but which she 
 had lost by such marriage. There was also another person of the 
 name ofPyot when the contingency happened, but not so nearly re- 
 lated to the testatrix as the persons before mentioned. Who were 
 entitled to the real and personal estates, was the question. And 
 Lord Hardwicke determined three points; l.That "relation" being 
 a noun of multitude, was synonimous with the word " kindred," and 
 comprehended all the nearest relations of the testatrix in equal de- 
 gree. 2. That the person not so nearly allied to the testatrix as the 
 brother and sisters already mentioned, was excluded. And 3, that 
 the married sister, being of the stock and family of the Pyots, and 
 one of her nearest of kin, and originally bearing the family name, 
 was entitled to participate in the fruits of the devise; his Lordship 
 considering the word " name," &c. equivalent to the expression " of 
 the stock of the Pyots," a description which was answered by the 
 married daughter. 
 
 The propriety of the last determination seems to be obvious ; for 
 if the mere circumstance of bearing the nameofPyot, united to the 
 character of nearest relation of the testatrix had been considered 
 sufficient within the terms of the devise, without regard to that re- 
 lation being of the stock of the Pyots; the necessary consequence 
 would be, that a nearer relation of the testatrix than the brother 
 and sisters of that family might totally exclude them, by the mere 
 assumption of the name ofPyot, by Act of Parliament, or under au- 
 thority of the royal license ; a result clearly in opposition to the in- 
 tention of the testatrix. That intention would be equally defeated 
 by such an interpretation of the word " name," if there were a. female 
 nearer of kin to the testatrix than the stock of the Pyots, and she 
 married a stranger of the name ofPyot; by that act she would lite- 
 rally answer the description in the will, and exclude all of that 
 family, contrary to the meaning of the testatrix. 
 
 It seems, however, to be settled upon sound reason, that where 
 a testator, after prior dispositions, ultimately bequeathes his property 
 to relations, or nearest relations of his oivn name, those only will 
 answer the description who are of his own family, and entitled to 
 bear his name ; and that his nearest relations, or relations if not of 
 his name, as just explained, cannot, by legally assuming his name, 
 by Act of Parliament or otherwise, bring themselves within the true 
 description in the will.(/) 
 
 Sometimes it occurs that a testator requires the person to succeed 
 to his real property, at the conclusion of prior dispositions of it, not 
 only to be the nearest relation of his own name, but also of his own 
 blood. The senses to be imputed to these two words in conjunction, 
 so as to affix a meaning to each, seem to be these : the word " blood" 
 is to be considered as marking the stock, and confining it to the 
 testator's own family ; and the word " name" as limiting the objects 
 of that stock to those deducing their title from the male line, thereby 
 excluding any of that stock or family claiming to be of kin to the 
 testator by descent from a.female.(g) Hence it appears that the ap- 
 plication and sense of the word " name" are qualified by its connec- 
 
 See Barlow v. Bateman, 4 Bro. Parl. ca. 194. and the case next stated. 
 15 Ves. 107.
 
 104 Description of Legatees. [Cn. II. 
 
 lion with the word " blood," so as to give to each of those terms a 
 separate meaning and effect. 
 
 The subjects now under consideration were fully discussed in the 
 important case of Leigh v. Leigh;(h] Lord Leigh having two sisters, 
 the one single and the other married, devised his real estate to his 
 sister, Mary Leigh, for life, remainder to her first and other sons in 
 tail male ; remainder to her daughters in tail general, as tenants in 
 common ; remainder to his sister, Jinn Hachet, for life ; remainder 
 to her first and other sons in tail, with the following limitation over : 
 " to the first and nearest of my kindred (the same in effect as rela- 
 tions} being male and of my name and blood, who shall be living at 
 the determination of the aforesaid several estates, and to the heirs of 
 his body." Both sisters died without issue, and Mary was the sur- 
 vivor; at whose death the plaintiff stated that he was the first and 
 nearest of kin to the testator, being a male, but was not originally of 
 the testator's name, although he assumed it by the King's license. 
 The question upon demurrer was, whether, under these circum- 
 stances, the plaintiff answered the description in the will? And the 
 Court, consisting of Lord Eldon, Thompson, B. and Lawrence, J. de- 
 termined in the negative, for the following reasons : 
 
 1. It appearing from the nature and tendency of the limitations to 
 the sisters and their issue, which, so far as they might take effect, 
 would necessarily occasion a suspension of the name of Leigh, or its 
 disuse for ever, should the remainder over be barred by any of those 
 to whom an estate tail was limited ; and also from the circumstance of 
 the testator's having made no provision requiring the persons taking 
 under those limitations, on their respectively succeeding to the pro- 
 perty, to assume his name, that he had shown no anxiety for its con- 
 tinuance, the testator could not, as the Court considered, mean the 
 word " name" to be confined to the simple requisition that his in- 
 tended devisee, under the subsequent limitation, (possessing the 
 other qualifications) should be of his name by mere assumption, but 
 that he intended to describe by the term, in conjunction with the 
 rest of the description, an individual who should be his first and 
 nearest relation of the male line, bearing the name of Leigh by in- 
 heritance at the time when the previous limitations determined. 
 2. That the plaintiff not being so entitled to the name, did not 
 answer the whole description in the will, a defect which could not 
 be cured by assuming the family name by royal authority, and con- 
 sequently he could not succeed in his claim. 
 
 Under the last division of the present section we proceed to 
 observe : 
 
 4, That the word " relations" being governed by the Statute of 
 Distributions, no persons can regularly answer the description but 
 those who are of kin to the testator by blood, consequently relatives 
 by marriage, are not included in a bequest " to relations" generally. 
 The reason is this ; the term " relations" is synonimous with " kin- 
 dred" mentioned in the statute, a word meaning individuals of the 
 same family and kind with the testator. A wife, therefore, cannot 
 regularly claim under a bequest to her husband's relations, nor a 
 husband as relation to his wife ; for although there be a relation be-> 
 
 (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. 
 
 (</) 3 Bro. C.C. 369. (<r) 3 Bro. C, C. 367. (/) 9 Ves. 323.
 
 116 Description of Legatees. [Cn. II. 
 
 be construed to mean the children of A. and A, will take no interest 
 in the fund. 
 
 Accordingly, in Barnes v. Patch,(g) the testator Jefferson, after 
 declaring his intention to provide for his children, devised his resi- 
 duary estate equally between his two natural children Thomas and 
 Arabella, to be paid at their ages of twenty-one, with benefit of sur- 
 vivorship, but if both died before that period, (which event hap- 
 pened,) he gave " the remainder of his estate to be equally divided 
 between his brother Lancelot's and his sister Esther's families." 
 Lancelot was living, and had eight children at the testator's death. 
 Esther died before the testator, leaving ten children ; and it was de- 
 cided by Sir W. Grant, M. R. that by the word " family," children 
 were intended, and that the distribution was to be made per capita, 
 a construction which excluded Lancelot. 
 
 So also in M l Leroth v. Bacon,(h) Lord AlvanUy said, that where 
 a legacy is given to trustees for a married woman and her " family," 
 the construction of such a bequest, without other circumstances, 
 would be, that it should be applied for her and her children. 
 
 And if the word " family" be used in devising freehold estates, as 
 to A. for life, with remainder to his family, it seems that A.'s heir 
 at law will be entitled under that description. (i) 
 
 It is not so clear when the fund is a mixed one, consisting of real 
 and personal estates, and the limitation is to the " family" of J. S. 
 or /. S. for life, remainder to his " family ;" or, after several dispo- 
 sitions, the ultimate limitation is " to the family of the devisor," 
 whether the heir will take the whole fund or only the real estate, 
 and the next of kin the personalty. Lord Eldon, in Wright v. At- 
 kyns,(k) appears to have intimated an opinion, that since it had 
 been decided at law, that under the word " relations, "(i) next of 
 kin should take freehold estate ; and since the heir had been held 
 by law to be entitled to the land under the word " family," it was 
 only fair that the heir should be at liberty to take the personal fund, 
 under a limitation of both real and personal estate, to the " family" 
 of A. 
 
 The only decision upon this point appears to be the short note 
 mentioned below, and referred to in Wright v. Atkyns. 
 
 Regularly, the person designated by law to take real property 
 upon intestacy, is the heir ; and the persons to take personal estate 
 are next of kin. Hence, it seems a consequence, when real and per- 
 sonal property are devised together in such a manner, as to render 
 it uncertain who are the individuals intended by the description 
 adopted, that the law will give the freehold estate to the heir, and the 
 personal to the next of kin. Such appears to have been the opin- 
 ion of the Master of the Rolls from the following short note : " 1732, 
 under a limitation to the family of J. S. the real estates descend to 
 the heir at law; the personal estate goes to the next of kin."(m) 
 Also, in the same case of Wright v. Atkyns,(n) Sir W. Grant ob- 
 served, that the word " family," when applied to personalty, could 
 
 (g) 8 Ves. 604--60T. (A) 5 Ves. 166. 
 
 (0 Chdfiman'8 case, Dy. 333. Counden v. Clerke, Hob. 33. Wright v. Jtlcyns, 
 Coop. 122. Doe v. Smith, S Maule & Selw. 126, 
 Mr) Coop. 123. (A Sufira, sect 5. p. 92. 
 
 (TO) 1 Taunt 266. 17 Ves. 263. (n) 17 Ves*263.
 
 SECT. X.] Description of Legatees. 117 
 
 not be contended to mean the heir at law. This, with the general 
 rule, would, as is presumed, have afforded sufficient authority for an 
 opinion, that a devise of real and personal estate to A. for life, re- 
 mainder to his " family," would have entitled the heir to the land, 
 and the next of kin to the personal property, if Lord Eldon had not 
 thought it reasonable, that since courts of law permitted the next of 
 kin to take freehold estate by the term " relations," a court of equity 
 should allow the heir to take the personal under the word " family," 
 when the disposition was of both funds. The conclusion, however, 
 seems liable to these observations ; that unless the courts of law had 
 construed the word " relations" to mean next of kin, there would 
 have been an intestacy as to the land, from the uncertainty of who 
 was meant by the expression " relations," and the heir would have 
 taken by descent ; a consequence which would not have followed if 
 the word adopted had been " family ;" for in such a case the law 
 gives the real estate to the heir, either by purchase or limitation, ac- 
 cording to the terms of the devise ; and a court of equity distributes 
 the personal property among the next of kin : there is, therefore, no 
 necessity to alter the ordinary legal and equitable constructions be- 
 fore mentioned, for the purpose of preventing an intestacy, since 
 the heir can take the freehold estate, and the next kin the person- 
 al, without any inconvenience, each class of representatives answer- 
 ing the description of the bequest. And there is no objection to 
 using the word " family" in two different senses in the same will, 
 when it is applied to different subjects ; so that it may, consistently 
 with the construction adopted in analogous cases, mean the heir 
 when the subject is freehold estate ; and also next of kin when re- 
 ferred to personal property. (p) Perhaps the right conclusion may 
 be, that whether the devise of freehold and personal estates be made 
 to A. for life, with remainder to his family, or to the devisor's family 
 after the death of A. the heir will be entitled to the land, and the 
 next of kin to the personal property. 
 
 This conclusion, however, can only be drawn when the will af- 
 fords no intention contrary to the title of the next kin to the person- 
 ality ; for we have seenQ>) 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, <tc. all the nephews 
 and nieces would take equal shares per capita in their own rights, 
 and not as representing their parents ; because they are sole next of 
 kin, and related to the testator in equal degree. (z) 
 
 But if the testator's next of kin happen not to be related to him 
 in equal degree, as a brother, and the children of a deceased 
 brother, so as that under the statute the children would take per 
 
 (JT) 5 Ves. 399. (t/) 22 & 23 Car. II. chap. 10. 
 
 (z) Walxh v. Walsh, Pre.-Cha. 54. and see 1 P. Will. 595. Durant v. PreSt- 
 wood, 1 Atk. 454. Davers v. Dewes, 3 P. Will. 50. Lloyd v. Teach, 2 Ves. 
 sen. 213. and Mascall's Intest, 73. in which a variety of cases is collected.
 
 SECT. XVI.] Description of Legatees. 127 
 
 stirpes as representing their parent, . viz. the share which he would 
 have taken, had he been living ; yet if the testator has shown an in- 
 tention that his next of kin shall be entitled to his property in equal 
 shares, i. e. per capita, the distribution by the statute will be super- 
 seded. This may occur when the bequest is to " relations," " next 
 of kin," &c. to be equally divided among them ; or by expressions 
 of the like import. 
 
 If, then, the testator's next of kin be a brother, and three chil- 
 dren of a deceased brother, and the' bequest is to the testator's " re- 
 lations," or to the relations of B. to be equally divided among them, 
 each child will be entitled to an equal share with the brother, the 
 distribution being to be made per capita ; which would not have 
 been so if the testator had died intestate ; for in that event the pro- 
 perty must have been divided into two parts, and the children would 
 have taken, by representation, their father's share per stiij)es.(a) 
 
 It has been noticed, that when the terms of the bequest are so 
 general in regard to the objects, as to occasion a virtual intestacy, 
 it becomes necessary to resort to the Statute of Distributions. In 
 these instances, the interests whiqjl the next of kin take under the 
 act, are in common. The statute creates the tenancy in common, 
 and to convert that interest into a joint tenancy, there must be ex- 
 press declaration in the will : a mere bequest to " relations," &c. 
 will not be sufficient for the purpose. But this is reversed when the 
 legacy is to " descendants" or " issue ;" for we have seen that dis- 
 positions in those terms are not regulated by the statute. (6) The 
 persons, therefore, entitled under those words, claim altogether by 
 the will, which must be interpreted in tiff usual manner. Hence, 
 if the bequest be to " descendants" or to " issue" ( generally, the 
 individuals answering the description will take as joint tenants, (c) 
 but if words of severance be added, or the bequest be .to descen- 
 dants or issue, to be equally divided among them, they will be en- 
 titled as tenants in common, and take equal shares per capita. 
 
 Suppose, then, a bequest of money to " descendants" or " issue" 
 of the testator, or of a deceased person, to be equally divided among 
 them ; and that at the death of the testator, there were children, and 
 issue of some of them ; also issue of deceased children, and great- 
 grand-children, whose parents were dead ; the fund would be divi- 
 sible among all of them per capita in equal shares, the grand-chil- 
 dren, whose parents were living, not being excluded ;(rf) for every 
 one of them answers the description in the will, and each is capable 
 of showing a title in his own right. 
 
 The construction will be the same, if the legatees be described 
 under the word " family," as Sir W. Grant determined in the case 
 of Barnes \.Patch(e) before stated. (/) 
 
 It is indifferent with respect to the application of this rule of inter- 
 pretation, although the instrument containing the. limitation be a deed. 
 Accordingly in Leigh v. N0rbury,(g) Mr. JVorthington vested in 
 
 (a) Thomas v. Hole, Forrest, 251. stated supra, p. 92. and see 1 Bro. C. C. 33. 
 (A) See sect. 4. p. 88. sect. IX. p. 114. 
 (c) Davenport v. Hanbury, 3 Ves. 259. supra, p. 88. 
 
 (rf) freeman v. Parsley, 3 Ves. 421. stated supra, p. 88. Crossly v. Clare, 
 Ambl. 397. ante p. 115. Pierson v Garnet, 2 Bro. C. C. 38. 230. 
 (e} 8 Ves. 604. (/) Stated supra, p. 116. (g) 13 Ves. 340.
 
 128 Description of Legatees. [CH. II. 
 
 the trustees of hi.s marriage settlement " all his personal property 
 in trust !<>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. 
 C<?) Stated supra, p. 158.
 
 SECT. V.} Specific -Legacies. 161 
 
 form any other conclusion upon the present case, than that it is one 
 which, if not now clearly destitute of authority, may be considered to 
 be very doubtful. (/) 
 
 In Bronsdon v. Winter,(g) another case upon this subject, A. be- 
 queathed to B. and C. " the sum of 20001. capital stock in the 
 South Sea Company." The testator was possessed of 2000Z. South 
 Sea stock and no more, at the time of making his will, and in the 
 months of February and March next afterwards, he sold 15001. part 
 of the 2000J. The question was, whether the bequest of the 2000J. 
 South Sea stock was to be considered specific, or general 7 And Fer- 
 ney, M. R. determined it to be general. Some stress (said he) has 
 been laid upon the words "the sum" of2000Z. in the will, as if by 
 them the testator meant that quantity of stock, only. But I think 
 no weight is to be laid on that, for if he had -said 20001. South' Sea 
 stock, that would equally express quantity, and any 2000/. stock 
 would answer this legacy ; for one stock does not differ from ano- 
 ther, though one moveable does differ from another, and it is ad- 
 mitted that if the testator had possessed no stock, the executors must 
 have bought 20001. stock, which* shows that any 20001. stock would 
 satisfy this bequest. The fact, as -proved, is, that though nothing 
 particular is mentioned in the will to make the legacy of the stock 
 specific, yet the testator, at the time of making his will, had the pre- 
 cise quantity of stock. Here seems the stress of this case. But the 
 testator has not used words to make it specific. And if legacies 
 are to be specific or not, from the testator's manner of wording them, 
 and the natural description would have been. by words different from 
 what are here used, why should the Court, from the circumstance of 
 the testator having just 2000Z. stock, determine that he meant that 
 individual stock? 
 
 So also in the Bishop of Peterborough v. Mortlock,(h) G. master 
 of Clare Hall, Cambridge, after giving several pecuniary legacies, 
 bequeathed "to A. IOQL; to B. 100/.; to Storey's Hospital 3400Z. 
 in the three per cents ; the annual dividends of which to be every 
 half year divided betwixt four widows." It appeared that the tes- 
 tator, at the times of making his will and of his death, had 22001. 
 only standing in his name in the three per cent annuities ; of which 
 150L belonged to other persons, and that the remaining 20501. 
 were his own. There being a deficiency of assets, the question was, 
 whether the legacy of 3400Z. in the three per cents was to be con- 
 sidered a specific or general legacy? And the Lord Chancellor 
 thus expressed himself: " In this case I confess it does not appear 
 to me that there is any question of difficulty. On the face of the 
 will, it is clearly a pecuniary legacy ; and if it be to be turned into 
 a specific legacy, it must be upon other circumstances. The form 
 of the bequest is to give 34001. in the three per cents. The testator 
 has been definite in applying the quota of maintenance to each 
 widow. On the face therefore of the will it is purely pecuniary, and 
 extends only to a direction to buy such a sum in such a stock. But 
 it is said, that although this may be so in the words, yet that circum- 
 stances may be given in evidence as to the state of the funds in his 
 
 /) See Lord Thurlovfs observations upon this case, 2 Bro. C. C. 113. 
 ) Ambl. 57. (K) 1 Bro. C. C. 565. 
 
 VOL. I. X
 
 1G2 Specific Legacies. [Cn. III. 
 
 possession at the time of making the will ; and that if he had, at the 
 time of making his will, more stock than that which he devised, it will 
 be a specific legacy. But this is not the only case in which the 
 Co*urt has been used to make this inference. When I say this, I do 
 not mean to be understood that the Court has laid it down as a po- 
 sitive rule of law, but merely as an interpretation of evidence. In 
 all cases where the legacy is considered as specific, the Court takes 
 for granted that the testator meant that particular fund, although 
 he may be mistaken in the description of it. Now this intention 
 ought to be made out by strong circumstances, which certainly do 
 not exist in the present case. I am, therefore, of opinion, that this 
 is a pecuniary legacy ; it must consequently abate in proportion 
 with. the rest." 
 
 The next case upon 'the present question is Webster v. Hale.(i) 
 The testator bequeathed to his executors in trust the sum of 8000Z. 
 stock in the five per cent. Irish fund for the separate use ofB.; also 
 " the sum of 4000Z. in the three -per cent, reduced stock, to be paid 
 to her as soon as possible." He further gave to C. .10001. East In- 
 dia stock, and to D. 20001. three per cent, reduced stock, to be paid 
 to her as soon as possible ; to E. the testator also bequeathed 10001. 
 in the four per cent, stock. It was one of the questions whether 
 these legacies were general or specific *? And Sir JVilliam Grant, 
 M. R. decided, that they were general or pecuniary legacies ; ob- 
 serving, that after the cases which had been decided, it was impos- 
 sible to say that those were not pecuniary legacies. 
 
 A case, however, in addition to that of Avelyn v. Ward,(k] must 
 be adverted to, which cannot be reconciled with the authorities be- 
 fore stated. The case is Jeffreys v. Jeffreys, determined by Sir John 
 Fortescue, M. R. and which was to the following effect : 
 
 .#., at the date of his will, having 21021. 3s. bank annuities, and 
 2000Z. East Indiastock, bequeathed to his two daughters, B. and C., 
 " 21021. 3s. capital stock in the Bank of England, and 20001. ster- 
 ling capital stock in the English East India Company, to be equal- 
 ly divided between them." The testator afterwards sold 1021. 3s. 
 of the bank stock ; so that he was possessed at his death of only 
 2000 J. bank stock, and 20001. East India stock. The question was, 
 whether the legacies were specific *? Arrd his Honour decided in the 
 affirmative, from the circumstance of the equality in amount of the 
 stocks bequeathed, with the quantity in possession of the testator 
 when he made his will.(i) 
 
 It appears from the report of the judgment in the last case, that 
 the Master of the Rolls endeavoured to avoid the pressure of such of 
 the several authorities .before stated as were cited on the occasion 
 to show that the legacies were general, by assigning different reasons 
 as the grounds of the decrees pronounced in them. It is obvious, 
 however, from the perusal of those cases, and the others before set 
 forth, that the principle upon which the judgments were pronounced, 
 was a want of words referring to the identical stock existing at the 
 dates of the wills, or an absence of manifest intention in the testa- 
 tors that they alluded to it, and not the mere circumstance of their 
 
 (0 8 Ves. 410. 413. 415. and see 9 Ves, 146. 
 
 (*) Ante, p. 160. (/) 3 Atk. 120.
 
 SECT. V.] Specific Legacies. 163 
 
 possessing or not possessing stock at those periods of any particular 
 amount. It is presumed, therefore, that the case of Jeffreys v. Jeff- 
 reys cannot be considered of any authority. 
 
 But it is a consequence from what has been said, that if it clearly 
 appear, from reference made to the stock by additional expression, 
 that it alone was intended to be the subject of disposition, the lega- 
 cy will be specific, although the form of bequest be of a sum of money 
 in that species of stock, as if the words were, " 500Z. in my stock of 
 three per cent. consols,(m) or 5001. which / now have in Navy five 
 per cents" 
 
 Thus i-n Humphreys v. Humphrey s,(ri) the testator being possess- 
 ed of 5000/. stock, bequeathed to JL. and B. as follows : " All the 
 stock which / have in tlje three per cents, being about 50001. except 
 5001, which I give to C." Lord Thurlow decided, that the stock 
 the testator had was specifically given ; so that there was an ademp- 
 tion pro tanto in consequence of his having sold 2000Z. part of it. 
 
 The intention, however, of the testator to bequeath specifically, 
 must not be inferred by conjecture, nor upon a term which is capa- 
 ble of a double intendment, when the form of bequest is general ; for 
 a court of equity requires the intention to give specifically, either to 
 be expressed or to be clearly and indisputably manifested from pe- 
 rusal of the whole will. If, then, the legacy be not described as 
 part of the stock belonging to the testator, but be merely a gift of 
 stock in some one of the public funds, and the executor be directed 
 to transfer the sum in stock to the legatee ; the direction of trans- 
 fer will not make the legacy specific, which is in other respects ge- 
 neral ; and for this reason : the testator may have meant either a 
 transfer of the particular stock which he. l)ad when his will was made, 
 or that his executor, should purchase(o) the stock) and transfer it -to 
 the legatee. The "intention, therefore, to.be inferred from the direc- 
 tion of transfer is equivocal, and does not amount to a degree of cer- 
 tainty sufficient to make tlic legacy specific. 
 
 Thus in Sibley v. Pewy,(p) A. directed his trustee and executor, 
 "within three months after A?s deceasef to- transfer 1000Z. stock in 
 the public funds commonly styled the three per cents consolidated, to 
 each of his relations (naming them) if living at his death, and to the 
 issue of such of them as should be then dead." Lord Eldon decided, 
 that this legacy was general, upon the general principle or rule of 
 construction ; althojugh he had no doubt in private, that in directing 
 a transfer of stock, the testator meant to give the stock which he 
 had ; but that there was no case deciding that a legacy was specific, 
 without something marking the specific thing, the very corpus; 
 without describing it as standing in the testator's name, or by the 
 expression " my stock." 
 
 From the majority of the cages which have been produced, the 
 rule of equity may be considered to be thus settled : 
 
 FIRST, that whether a legacy ' be given generally of stocks or an- 
 nuities, or of stocks or annuities in particular funds, without further 
 explanation ; the. fact of the testator happening to possess stocks or 
 
 ( m). 4 Ves.'750. (ra) 2 Cox, 184. (o) See Fountame v. Tyler, infra, 165. 
 (ft) 7 Ves. 523. 529. and see Lord Eldorfs observations in Deane v. Test, 9 Vcs. 
 152. stated infra, p. 168.
 
 164 Specific Legacies. [Cn. III. 
 
 annuities in the funds described will not make the bequest specific. 
 And 
 
 SECONDLY, that if a clear intention appear from the will that the 
 testator meant to bequeath the identical stock or annuities he was 
 possessed of at. the date of it (although he have not expressly decla- 
 red that intention, nor referred to the stock,) such intention will 
 constitute the bequest specific ; an instance of which was before 
 produced, where the executor was directed to sell the stock be- 
 queathed to him in the form of a general legacy. (q) 
 
 Another instance established to be a clear demonstration of inten- 
 tion to give the identical stock or annuities, although the bequest in 
 part was in the form of a general legacy, occurred where a testator, 
 possessing stock or annuities at the date of his will, disposed of them 
 in fractional parts, in giving one of which he adopted such expres- 
 sions of reference, as to raise a clear inference that he intended the 
 identical stock or annuities he then possessed. 
 
 Accordingly in Sleech v. Thorington,(r) one of the questions arose 
 upon the following bequest. The testatrix gave 241 3Z. 13s. to dif- 
 ferent persons in several parcels and in differe'ht proportions, by the 
 name of South Sea annuity stock, or South Sea annuities, and be- 
 queathed to her coachman the remaining 131. 13s. South Sea stock, 
 " standing in her name." The testatrix died possessed of no more 
 than 2157Z. 12*. Id. South Sea annuities. The question was, whe- 
 ther the deficiency should be made- up out of' the general assets, 
 which depended upon this, whether the legacies were general or 
 specific 9 And Sir Thomas Clarke, M. R. held them to be specific, 
 and therefore not entitled to a contribution from the general personal 
 estate. He said that the last bequest, in favour of the coachman 
 was a specific parcel of the stock, part of a larger sum standing in 
 the name of the testator ; that none of them were -independent, but 
 all connected, from the original bequest, of the first portion of the 
 South Sea stock to the last, which she computed to be a residue, 
 though erroneously ; that the legacies were connected by the last 
 being given by way of remainder, and that this was a specific be- 
 quest of such an individual identical thing, as the testatrix appre- 
 hended she had.() He also said, it was material that there was a 
 direction to the executors to sell, and convert part of the stock into 
 money ; which direction it was, impossible the testatrix could have 
 given, if she meant part of the stock should be- purchased with her 
 personal estate. That would have been a vain thing, and was laid 
 hold of in Ashton V. Jlshton,(t] which was in point. He therefore 
 decreed as .before stated. 
 
 The last case was followed by Stafford v.-Horton,(u] in which A. 
 being possessed of 2001. per annum bank long annuities, and other 
 personal estate, bequeathed to B. " 1001. a year in the long annui- 
 ties ;" also to C. " 501. long annuities," and to D. " 501. long annui- 
 ties to be laid out in charities at. his discretion." Lord Thurlow 
 conceiving (as Mr. Brown says) that the legacies were specific, ob- 
 
 (?) Ante, p. 159. 
 
 (r) 2 Ves. sen. 561. 564. and see Badrkk v. Stevens, 3 Bro. C. C: 431. et infra. 
 
 (s) See Evans v. Trifi, 6 Mad. 91. 
 
 (0 1 Forr. 152. 3 P. Will. 383. stated suhra, p. 159. 
 
 (u) 1 Bro. C. C. 482. ed. by Belt.
 
 SECT. V.] Specific Legacies. 165 
 
 served, that they must be transferred as annuities, and ordered C'.'s 
 legacy to be paid to him in long annuities, with the payments which 
 had been made upon it subsequently to the year after the death of 
 the testator. 
 
 The reason why Lord Thurlow conceived that those legacies were 
 specific does not appear. They (according to the cases before stated) 
 are given in the forms of general bequests, and it has been shown 
 that the mere circumstance of a testator having stocks or annuities 
 of the same amounts with those bequeathed will not make the lega- 
 cies specific. His Lordship, therefore, must have thought, that 
 these legacies were given as fractional parts of the annuities which 
 the testator had at the date of his will, and were consequently spe- 
 cific. But that rests in mere conjecture, for there are no expressions, 
 nor directions as in Sleech v. Thorington, demonstrative of the testa- 
 tor's intention to bequeath in parcels the identical annuities of which 
 he was possessed. The case does not differ from Simmons v. Val- 
 lance,(x) and it is conceived that ff Lord Thurlow delivered the 
 opinion ascribed to him, it cannot be supported, but it may be rea- 
 sonably doubted whether he ever delivered such an opinion, when 
 the incorrectness of the report and the order pronounced by him in 
 the cause are considered ; for if he had conceived the legacies to be 
 specific, it is presumed that he would not have ordered payment to 
 C. of what had only been received in respect of his annuity legacy 
 subsequently to one year after the death of the testator, but what- 
 ever had accrued due and been paid since the testator's decease. 
 
 It will have occured to the reader, that in the preceding cases 
 wherein bequests of stock' were decided to be specific, it was con- 
 sidered essential to the specific bequests, that there should be a 
 clear and distinct reference to the corpus of the 'funds of which the 
 testator was possessed at the date of his will. In the case of Parrott 
 v. Worsfold.(i)} , It was decided by Sir Thomas Plumer, that a 
 bequest of " all other stocks or funds which the testator might be 
 possessed of or entitled to at the time of his death" after a prior 
 specific legacy, was general: he observed, "the ordinary criterion 
 of a specific bequest is, that it is liable to ademption; that if the 
 thing bequeathed is once gone, it is lost to the legatee. That cri- 
 terion fails here ; for it would equally pass stock afterwards acquir- 
 ed. Can it be said that a will made now can contain a specific be- 
 quest of what may be bought hereafter, of what does not now exist^? 
 In a certain sense it 'may be said that legacies of this kind are 
 specific ; as a legacy of the testator's cattle, or all his personal pro- 
 perty at his death ; but it is not specific unless you can fix on the in- 
 'dividual thing given* 
 
 But in the recent case f Fountaine v. Tyler, (z) it has been de- 
 termined, that there may be a specific bequest out of stock of which 
 'a testator is .not possessed at the making of his will, but pf which he 
 may be possessed at his death. In that case the testator willed, that 
 if he had not so much as 10,000if. capital stock in the three per cents 
 reduced or consolidated bank annuities, that his (executors) should 
 
 {.r) 4 Bro. C. C. 345. stated supra, p. 158. 
 
 (y) 1 Jac, ScWalk. 594. 601. ' (2) 9 Price, Ex, Rep. 94.
 
 166 Specific Legacies. [Cn. III. 
 
 make up the capital sum of 10,OOOJ. in the reduced or consolidated 
 bank annuities, or one or both of them, and should hold the same 
 upon trust for all and every the children of his said niece Frances, 
 late wife of the said James Fountaine, who should be living at the 
 time of testator's decease, to be vested interests in sons at twenty- 
 one and daughters at twenty-one, or days of marriage; he directed 
 that until the legacy should become vested, the executors should 
 apply the dividends for maintenance : and he further directed, that 
 in case there should not be any child who should obtain a vested in- 
 terest in the said 10,OOOJ. it should fall into the residue. The tes- 
 tator had at the time of his -death standing in his name 9000Z. three 
 per cent reduced, and 7.000/. three per cent consols. The bill was filed 
 by the next friend of the infants (the plaintiffs,) praying that the de- 
 fendant (the executor) might be ordered to transfer 10,000?. three 
 per cent reduced or three per cent consols, or that the sum might be 
 made up by one" or both of the sums before mentioned, and account 
 for the dividends from the time t>f 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. 
 
 (</) Ambl. 309. 
 
 VOL. I.
 
 178 Specific Legacies. [Cn. III. 
 
 to A., his banker, to retain the sum in his hands. By that direction, 
 he might mean no more than that A. should preserve a sufficient fund 
 in his possession, to answer the legacy when B, should marry, or at- 
 tain the age of twenty-one, referring to the money in ASs hands as 
 the primary fund out of which the legacy should be paid, and not as 
 an original specific disposition of any part of it ; or he might mean 
 (though less probably) to give of his specific money in A's hands to 
 the amount of WOOL, with orders to retain that sum till it became 
 payable. The intention, then, being equivocal, and the interpreta- 
 tion or inference not coming up to the rule before stated, it is pre- 
 sumed that the sentence passed upon this case by Lord Thurlow, is 
 just, and that if a similar one were to occur, the decision in Philips 
 v. Carey would not be followed. 
 
 2. Having produced various instances of forms of bequests which 
 have been adjudged to be specific, we shall next proceed to the con- 
 sideration of those forms of dispositions which have been held insuf- 
 ficient to create specific bequests of the debts or securities to which 
 they alluded. Questions upon this subject, as on those which have 
 been previously discussed, depend upon the testator's intention ; that 
 being the test by which they are to be tried and determined. A 
 court of equity leans to the consideration, that all bequests are ge- 
 neral : it therefore requires expressions actually bequeathing the 
 identical debt, (examples of which have been given,) or such a re- 
 ference to it appearing upon a strong, solid, and rational interpreta- 
 tion of the will, as to raise a plain inference that the debt was the 
 exclusive subject intended to be given by the testator to the legatee ; 
 for the bequest of a sum of money, with ever so plain a reference to 
 the amount of a debt or fund out of which it is given, is very differ- 
 ent from a gift of the fund itself, with all the chances of fluctuation 
 in its amount ;(e) so that when a legacy of a debt is in its form gene- 
 ral, and it is endeavoured, from the context of the will, to construe 
 such bequest specific, it can only' be accomplished by such strong, 
 solid, and rational interpretation to be put upon, and plain inference 
 to be drawn from the will, as have been before mentioned. (/) Mere 
 private opinion or conjecture will be insufficient for the purpose. In 
 considering the cases in confirmation of the above remarks, we shall 
 commence with an instance where the security belonging to the tes- 
 tator was neither given nor referred to, but the bequest was merely 
 of securities of a similar description : 
 
 In Sleech v. Thorington,(g) A. bequeathed as follows : " I give and 
 bequeath unto B. 400J. East India bonds, on trust to pay the inter- 
 est thereof from time to time to my niece C. until her age of twen- 
 ty-one, or marriage ; and afterwards to pay the said 4001. East India 
 bonds to her." Sir Thomas Clarke, M. R. decided, that this form 
 of bequest was not specific, but of quantity, and to be made- good 
 out of the personal estate of A. 
 
 The instance just given has none of the essentials of a specific le- 
 gacy. There is no reference to any East India bonds in A:S pos- 
 session, nor are there any expressions or inference from the will, that 
 A, intended to bequeath any such securities specifically. The le- 
 
 (e) 3 Ves. & Bea. 5. AmbL 309. (/) Ante, p. 168. 
 
 () 2 Ves. sen. 560. 563.
 
 SECT. VII.] Specific Legacies. 179 
 
 gacy is of East India bonds generally ; a bequest which the execu- 
 tor can literally satisfy by the purchase of any bonds of that descrip- 
 tion. This, then, seems to be the first step towards rendering a 
 legacy specific. 
 
 The next advance towards the specific legacy of a debt or secu- 
 rity, is where the form of bequest being general, allusion is made to 
 the debt or security ; but in such a manner as to render it equivocal 
 whether the debt or security was or was not intended to be specifi- 
 .cally bequeathed. Under such circumstances, the prima facie con- 
 struction of the bequest being general, cannot, as before observed, (h) 
 be repelled by inference arising from such a reference or allusion to 
 the particular fund. This may happen, first, when a sum of money 
 is distinctly bequeathed, and a debt or security is previously or sub- 
 sequently mentioned, but without any declaration or plain inference 
 appearing that such fund was itself the identical fund solely intend- 
 ed for the legatee. Or, secondly, this may happen when the legacy 
 is given in the form of a general, but out of or directed to be paid 
 out of a particular debt or security. In these instances the legacies 
 are general, because the bequests being distinctly made in that form, 
 viz. of a sum of money, the prior or subsequent description of a 
 particular fund, or the gift of the sum out of it, raises no higher in- 
 ference than this : that the testator might intend to bequeath the 
 debt or security specifically, or he might only mean to point to that 
 fund as the primary one out of which the legacy should be paid ; so 
 that there is wanting that plain and certain inference of intention 
 arising from a strong, solid, and rational interpretation of the will, 
 which is necessary to repel the primd facie construction that the le- 
 gacy is general. 
 
 Of the first proposition, the opinion of Lord Hardwicke, in Ellis 
 v. JValker,(i) is confirmatory. 
 
 So also in Gillaume v. Adderley,(k) A. bequeathed to Elizabeth, 
 his natural daughter, then in England, for her education, the sum 
 of 5000Z. sterling, or 50,000 current rupees, to be ' paid at twenty- 
 one, or upon her marriage, if with the consent of such of his trustees 
 as might be then in England ; but in case his daughter were in Ja- 
 maica when she married, he directed the said sum of 5000Z. sterling 
 to be paid to her at twenty-one, if then in Jamaica, or on her mar- 
 riage there. And he further directed, that the said sum of 50001. 
 sterling, or 50,000 current rupees, which he expressed to be " now 
 vested in the Company's bonds," should be remitted to England as 
 opportunity offered ; and that the said sum of 50001. sterling should 
 be vested in the bank, or upon government security, in trust for his 
 said daughter, and the interest applied for her support and education 
 during minority, until she should be entitled to the said sum of 5000Z. 
 sterling, or 50,000 current rupees, in manner aforesaid ; but that if 
 she died before twenty-one, without having married in Jamaica, or 
 if she married in Europe without consent of the trustees as aforesaid, 
 he bequeathed the aforesaid sum of 50001. sterling, or 50,000 cur- 
 rent rupees, and accumulated interest, equally between his brother 
 
 (A) Ante, p. 169. (i) Ambl. 309. stated suftra, p. 155. 
 
 (k) 15 Ves. 385, 389. and see the case of the Earl of Thomond v. The Earl of 
 Suffolk, 1 P. Will. 462.
 
 180 Specific Legacies. [Cn. III. 
 
 and sister B. and C. The question was, whether this legacy was 
 specific or general *? And Lord Eldon expressed his opinion, that 
 it was of the latter kind ; observing, that it was originally a legacy 
 of money, 5000Z. or 50,000 current rupees considered as of the same 
 value, and, that the bequest was no more than of a sum of money, 
 pointing out a particular mode of payment by a fund provided in 
 the first instance. 
 
 Yet, as the reader will observe, there is no gift of the last legacy 
 out of any particular India bonds of the testator at the date of his. 
 will, nor a direction for its payment out of any such securities. The 
 principle of the decision appears to be, that the legacy being origi- 
 nally given as general, the mere subsequent notice that the sum was 
 then vested in India bonds was insufficient, for the reasons before 
 mentioned, to change the nature of the bequest, and make it speci- 
 fic ; and that although it was not expressed that the legacy should 
 be paid out of the bonds in the possession of the testator, yet his 
 mentioning them was sufficient evidence of his intention to make 
 them the primary fund for paying such legacy. (I) 
 
 To the last determination may be added the Case of Le Grice v. 
 Finch ;(m) in which A. reciting, " that it was the wish and desire of 
 her mother and herself that the, 5001. they had then out upon mort- 
 gage, should be given to B. and her family in manner thereinafter 
 mentioned," gave to her executors, immediately after her mother's 
 death, the said 5001. with all interest due thereon, upon trust for B. 
 &c. as therein mentioned. This money having been called in by the 
 testatrix, the question was, whether the bequest of it was not speci- 
 fic, and consequently adeemed- 1 ? And Sir William Grant held the 
 bequest to be general ; it being made of a sum of money, and the 
 security being only mentioned as descriptive of the then situation of 
 the money : money, not the security, being the subject of gift. The 
 principle is the same as that of the decree in Gillaume v. Adderky. 
 His Honour thus expressed himself : " The essential characteristic 
 of the legacy is, that it consists of a sum in which the testatrix ad- 
 mits that her mother and herself had some sort of joint interest, and 
 which they were both desirous of giving to B. This characteristic 
 was not at all dependant on the particular security on which the 
 money might be placed. The testatrix considers the circumstance 
 of its being at that time out on mortgage as merely accidental. She 
 speaks of the 500Z. we have now out upon mortgage. That is des- 
 criptive of the present situation of the money. The next day it 
 might not be out upon mortgage, but it would s'till be the 5001. in 
 which the mother and the daughter had a joint interest, and which 
 at the time of the will they had out upon mortgage. The thing 
 given is not the mortgage, but the money. It is the said sum of 
 5001. that she gives to her executors. What is the said suml That 
 sum of 500Z. which belonged to her mother, and which at a given 
 time was out upon mortgage. Whether it remained out upon mort- 
 gage at the time of the testator's death, appears to me a matter of 
 indifference. That circumstance is no ingredient in the gift, either 
 by way of condition or of inherent description. I am therefore of 
 opinion, that the legacy is due." 
 
 (/) See ante, sect. 5. p. 169. and 1 Meriv. 178. (m) 3 Meriv. 50.
 
 SECT. VII.] Specific Legacies. 181 
 
 It is observable, that the two last cases differ from Jlshburner v. 
 M'Guire, and the other authorities of that class, and before stated, 
 in which the forms of bequest were not general, with a subsequent 
 allusion to, or specification of securities, but primary gifts of the se- 
 curities themselves. (n) 
 
 As to the second proposition, that although a legacy be bequeath- 
 ed out of a debt, it will not, generally speaking, be a regular speci- 
 fic bequest of the debt itself whether the bequest be of a sum of 
 money, and therefore, in terms general, or whether it appear to have 
 been given as a general legacy, upon clear inference arising from 
 the whole will ; which was the principle of the cases of Savile v. 
 Blacket,(o) and Mann v. Copland,(p) before stated. (q) Such lega- 
 cies are in one sense only specific, that, against all other general le- 
 gatees they have a precedency of payment out of the debt or secu- 
 rity, (r) but in another sense the legacies are general, since if the 
 debt be not in existence at the testator's death, or if it be insuffi- 
 cient to pay the legacies, the legatees will be entitled to satisfac- 
 tion out of the general estate of the testator. A few cases will illus- 
 trate these observations : 
 
 In Roberts v. Pocock,(s) A. bequeathed to his nieces B. and C. 
 the sum of 40001. with benefit of survivorship, if either died under 
 twenty-one, and if both died under that age, he directed the whole 
 of the said 4000L to fall into his residuary estate. He then gave to 
 
 D. the sum of 500Z. at twenty-one, with the like direction as to its fall- 
 ing into the residue, if she died under age. He also bequeathed to 
 
 E. the sum of 500Z. for the trouble he heretofore had in the manage- 
 ment of his, (the testator's) affairs, and would have in the execution 
 of the trusts of his will. The will then proceeded in this manner, 
 " And I direct that all the aforesaid legacies shall be paid, by and 
 out of the monies which are now due and owing from A. Davidson 
 of Madras, Esquire, upon bond ; but my will is, that in case I shall 
 receive the said monies, or alter the said securities, such receipt or 
 alteration shall not be deemed or construed a revocation of any or 
 either of the said legacies, but the same shall in such case be paid 
 by and out of some other part of my estate and effects ; and that all 
 such legacies shall bear interest after the rate of five per cent per 
 annum, from the time of my decease ; and that the interest of the 
 several legacies intended for the said B. and D. and E. shall be 
 paid to them respectively, or be applied by my executors hereinafter 
 named, for or towards the maintenance and education of them the 
 said legatees ; according to their several provisions so intended for 
 them respectively, until the said principal legacies shall be paid 
 and payable. And as to all the rest, residue and remainder of my 
 estate and effects, of what nature or kind soever, and whether in 
 settlement or not, I give, devise, and bequeath the same unto my 
 dear and loving wife jP. for her own use and benefit absolutely." 
 And he appointed his wife and the said E., executor and executrix 
 of his will. The bond was dated the 5th of May 1783, to secure 
 
 (n\ See ante, p. 173. (o) 1 P. Will. 778. stated sufira, p. 154. (ft) 2 Mad. 223. 
 (g) Ante, p. 153. and -vide sufira, p. 166. eC seg, as to legacies given out of stock, 
 (r) 1 Menv. 178. 
 () 4 Ves. 150. and see Earl of Thomond v. Earl of Suffolk, 1 P. Will. 461.
 
 Specific Legacies. [H. III. 
 
 50001. and an arrear of interest. The amount of this debt being 
 diminished by receipts of the testator in his lifetime, the sum owing 
 upon this security at his death was, 3,5S3Z. 9s. 6d. The obligor 
 proving insolvent, a question arose whether the above legacies, 
 amounting to 5000/. given with a view to the money due upon the 
 bond, should be made good out of the general residue of the testa- 
 tor's estate, which depended upon another question, whether they 
 were to be considered specific or general legacies. And Lord Ross- 
 lyn, determined that the legacies were general, and said that the 
 legacies were not given specifically, and that he could not apply any 
 rule to them, which had been laid down as specific legacies ; that 
 the testator had not given the bond in form nor in substance, and 
 that the legacies were charged upon the bond, but did not amount 
 to a gift of it ; that if the bond had been a good security, it was 
 worth much more than the amount of the legacies with legal inter- 
 est, from the death of the testator, and that, therefore, the benefit of 
 the bond belonged to the residuary legatee, as a substantive part 
 of the testator's estate, charged with the legacies, (t] that the Court 
 would have laid hold of the bond, and not have permitted it to be 
 applied to the prejudice of the legatees, except for the payment of 
 debts ; and that the legacies might be said to be specific, in the res- 
 pect that they were not to abate. His Lordship concluded in obser- 
 ving, that there was no principle upon which he could say, that the 
 legacies were not to be paid out of the residue, except by indulging 
 in a strain of conjecture, which was too slight and too dangerous for 
 the Court to act upon. 
 
 With the last case agrees the decision of Sir William "Grant in 
 Smith v. Fitzgerald.(u) 
 
 In that case A. after reciting in his will that the Nabob of Arcot 
 was indebted to him in upwards of 10,OOOZ. arrears of his annuity ; 
 and after directing, that bills, remitted on that account, should be 
 lodged with his bankers, and the balance, after adjusting their ac- 
 count, paid to his attornies, made the following dispositions : should 
 the whole of this sum be received at stated periods, I give and be- 
 queath out of it 1000Z. to B., WOOL to C., 20001. to D., lOOOZ., to 
 .E., my godson, 10001. to F., my godson, lOQOl. to G<, my godson, 
 to the daughter of H., by name Sarah, 20001. of lawful money of 
 Great Britain. I bequeath WOOL of this debt to the use of the 
 poor of the town of Woolwich in Kent, (as therein directed.) From 
 this debt of his Highness, I give 500Z. to the charity school of Ma- 
 dras, for, &c.; and 500Z. to the different hospitals at Bath, to the 
 relief, &c. I have here bequeathed 11,OOOZ. to several purposes. 
 The testator then said, " that should this just debt from the Nabob 
 be paid," there would be coming to him 12,OOOZ.; 1000Z. of which 
 he left for casualties ; and he directed, that after payment of lega- 
 cies (except those mentioned from the Nabob's debt, as they might 
 require time,) the balance (exclusive of the Nabob's) should be di- 
 vided among his trustees or survivors. It was one of the questions 
 whether the legacies given out of the debt of the Nabob, were to be 
 considered specific, or, in other words, whether that debt, whatever 
 
 See Lambert v. Lambert, 11 Ves. 607. stated ante, p. 171. 
 3 Ves. & Bea, 2. 5.
 
 SECT. VII.] Specific Legacies. 183 
 
 its amount might be, was not intended to be divided among the lega- 
 tees "? And his Honour decided upon the principle before frequent- 
 ly mentioned, viz. the distinction between a gift of the fund itself, 
 and a sum of money out of it, that the legacies were general and not 
 of aliquot parts of the specific debt owing by the Nabob. He ob- 
 served, that the testator had not directed the debt to be divided 
 among the legatees in a given proportion, but on the contrary, gave 
 to each a precise sum to be paid out of that debt, whenever it should 
 be recovered ; that it was clear the testator conceived that the lega- 
 cies would exhaust, or nearly exhaust the whole debt, according to 
 his computation of its amount, but that still a gift of a sum of money, 
 though with ever so plain a reference to the amount of the fund, is 
 very different from a gift of the fund itself, with all the chances of 
 its actual amount. 
 
 In the following case the same Judge adhered to this distinction, 
 and decided according to what has been stated, that when a legacy 
 is given out of a fund, no other legatee can subject it to his demand 
 until the first legacy has been satisfied. The authority alluded to 
 is Acton v. Acton.(x) 
 
 In that case A. by a codicil bequeathed to his daughter B. a por- 
 tion of 12,OOOZ. and to his niece C. 40001. directing that the latter 
 sum should be paid out of the money in the hands of his bankers or 
 agents in England. There was a sum exceeding 4000J5. in the hands 
 of A's agent when A. died, but his other personal estate was not 
 sufficient to pay those two legacies and all the others given by the 
 will. If the legacy of 40001. were specific, there could be no ques- 
 tion upon the right of the legatee to be fully paid out of the fund, 
 and the question was, whether, as this legacy was in form general, 
 but given out of a particular part of the personal estate, that circum- 
 stance constituted such a lien upon it as to entitle the legatee to have 
 that fund appropriated in payment of her legacy, before any part of 
 it should be applied in satisfying the other legacies ; and Sir Wil- 
 liam Grant determined that she had such right. 
 
 Although the general rule of construction be such as before men- 
 tioned when legacies are given out of a debt or security; yet it is 
 not so absolute as to admit of no exceptions, as we have seen in the 
 fifth section when treating of bequests out of stocks or annuities in 
 public funds. (y] If, therefore, it appear upon plain inference drawn 
 from a strong, solid, and rational interpretation of the whole will, 
 that the testator meant to give the indentical debt or security, then 
 although the bequest be in form such as that according to the primd 
 facie rule of construction, it ought to be considered general, i. e. of 
 so much money, and the debt or security a primary fund appropriat- 
 ed for its payment, still the intention so appearing will prevail and 
 constitute the bequest specific, viz. of the debt or security itself. As 
 an instance of this : 
 
 In Badrick v. Stevens,(z) A. bequeathed in the following manner : 
 " I bequeath to B. and C*. who formerly lived servants with me, the 
 sum of 30Z. each, to be severally paid to them, within three months 
 next after my death, out of 2001. due from D. to me upon bond. 
 Also, I give to E. and F. the sum of 501. each, to be severally paid 
 
 (*) 1 Meriv. 178. (y) Ante, p. 168. (z) 3 Bro. C. C. 431, ed. by Belt.
 
 184 Specific Legacies. [Cn. III. 
 
 to them, within three months next after my death, out of the said 
 sum of 200/. due to me from the said D. Also, I bequeath to the 
 said D. the sum of 401. being the remainder of the said sum of 2001. 
 due from him to me as aforesaid." And after giving other legacies, 
 A. bequeathed the residue to G. and H. The money on the bond 
 having been received by A. it became necessary to consider whether 
 the legacies were given as specific parts of the bond debt, or as mo- 
 ney legacies ; that debt being pointed out as the primary fund for 
 their payment. And Lord Thurlow determined that the legacies 
 were specific, and consequently adeemed. 
 
 The similarity of the last case to that of Sleech v. Thorington(a) be- 
 fore stated, (b) will not have escaped observation. In both instances, the 
 intention to bequeath specifically, plainly appeared from the disposi- 
 tion of the funds in fractional parts, and describing the gifts of the 
 last portions as the remainder of the whole. That word clearly im- 
 ported a reference to something that the testator had, and which he 
 was disposing of specifically ; the subject in the present case being 
 the debt upon bond, and in the other South Sea stock. It is safer 
 to ascribe Lord Thurlow's decision to the principle and authority of 
 Sleech v. Thorington, than to the mere circumstance of the lagacies 
 being equal in amount to the debt. For when there are no expres- 
 sions, in reference to the fund, plainly manifesting that it alone was 
 the subject of bequest, there appears to be no more reason for hold- 
 ing the legacies specific, because they happen, as a total, to equal 
 in amount the fund referred to for their payment, than when there 
 is only one legacy equal in value with the debt or fund ; a circum- 
 stance which we have seen to be insufficient to render the legacy 
 specific. (c) 
 
 SECT. VIII. Bequests of general personal Estate. 
 
 In the preceding pages have been considered what are and what 
 are not specific legacies of chattels, sums of money, stocks, debts, 
 &c. The next subject presenting itself is, when a bequest of gene- 
 ral personal estate will and will not be specific. And, 
 
 1. When the bequest will be specific. 
 
 It was noticed in the beginning of the fourth sectioned) that to 
 make a money legacy specific, the money must be so described by 
 the testator, as to empower the legatee to say to the executor, de- 
 liver the sum bequeathed to me, which is in a particular chest, bag, 
 or purse. In such a case, the thing given is distinguished and sepa- 
 rated from the general estate, and specifically bequeathed, and 
 capable of being delivered in specie. 
 
 The same tests must be applied in ascertaining whether legacies 
 of general personal estate are or are not specific ; for such bequests 
 may be specific ; yet the bequest of all a person's personal estate 
 generally is not specific : the very terms of such a disposition de- 
 monstrate its generality. But if A. bequeath to B. all his personal 
 estate at C., or in a particular house or country, the legacy will 
 be specific ; for it is confined in its extent, and falls within the 
 description before given of such a legacy : B. can say to the exe- 
 cutor, deliver to me all ASs personal estate at C., or in the particu- 
 lar house or country, for I am entitled to receive it in specie. 
 
 (c) 2 Ves. sen. 561. (d) Ante, p. 164. (c) Ante, p. 158. (d) Sufira, p. 17f.
 
 SECT. VIII. ] Specific Legacies^ 185 
 
 Accordingly, &. having personal property at B. and elsewhere, 
 bequeathed to his wife C. all his personal estate at B. There were 
 other legacies, and a deficiency of assets to pay all of them. The 
 question was, whether the bequest to C. was specific ; in which case 
 she would not be obliged to abate with the other legatees'? And the 
 Court decided, that the legacy was specific. (e) 
 
 So ajso in Nisbett v. Murray, (f] the testator, after giving two 
 specific legacies out of his property in the island of Jamaica, (hav- 
 ing first charged all his property generally with the payment of 
 debts,) bequeathed the rest and residue of his real and personal 
 estates in the said island of Jamaica, to trustees, also his executors, 
 to sell, and invest the proceeds, with all other monies belonging to 
 his estate on security in England; and he then gave a variety of 
 legacies, and the remainder of the monies, to his executors benefi- 
 cially. Lord Jllvanley determined, that this was a specific legacy of 
 all the testator's property in Jamaica, from the effect of the con- 
 trolling words " in the said island of Jamaica ," to trustees, also his 
 executors, to sell, and invest the proceeds, with all other monies be- 
 longing to his estate on security in England ; and he then gave a 
 variety of legacies, and the remainder of the monies to his executors 
 beneficially. Lord Mvanley determined, that this was a specific lega- 
 cy of all the testator's property in Jamaica, from the effect of the 
 controlling words "in the said island of Jamaica ." 
 
 The cases before referred to are authorities for the following be- 
 quests being specific : " of all the goods, &c. in a particular 
 room"(g) ; or " of all goods and chattels in a described coun- 
 ty"^) ; or " of all plate, linen, and furniture in my house at A., or 
 which shall be therein at the time of my decease. "(i) The princi- 
 ple of decision is that which has been stated, viz. the severance of 
 this particular property from the great body of the estate, and the 
 specific gift of it to the legatee. 
 
 2. Since, then, a bequest of personal estate requires, as before 
 mentioned, to be limited or controlled to some particular place, or 
 to be referred to as in some person's hands, (fc) in order to make it 
 specific, it follows, that if there be no such restrictive expressions, 
 a legacy of personal estate generally will be general, and not spe- 
 cific; so that if real and personal estates were given by will to Jl. 
 for life, remainder to B., neither the circumstance of the bequest of 
 the personal property being in the same sentence as the real, the 
 devise of which was necessarily specific, nor the circumstance of the 
 real and personal estates being dealt out together in portions, would 
 be sufficient to constitute the disposition of the general personal 
 property a specific legacy. This will appear from the following 
 case: 
 
 In Howe v. the Earl of Dartmouth,(l) Jl. devised to his wife B. all 
 his personal estate whatsoever (with an exception) for life, subject to 
 legacies, &,c. He also left to her all his real estates for life, and 
 
 (e} Sayer v. Sayer, 2 Vern. 688. Pre. Ch. 392. S. C. 
 (/) 5 Ves. 150. 156, and see Sadler v. Turner, 8 Ves. 617. 623. 
 (,) Green v. Symonds, 1 Bro. C.C. 129, notes. (A) Moore v. Moore, ibid. 127. 
 (i) Gayre v. Gayre, 2 Vern. 538. Shaftesbury v. Shaftcsbury, ibid. 747. Land 
 v. Dcvaynes, 4 Bro. C. C. 537. 
 
 (*) Ante, p. 155. (/) 7 Ves. 137. 
 
 VOL. i. A a
 
 186 Specific Legacies. [Cn. IV. 
 
 afterwards all his personal and real estates to C. for life, and then 
 to the first and other sons of D. in succession, subject to the pay- 
 ment of certain legacies and annuities. A considerable part of the 
 personal estate consisted of bank stock and long and short .annuities. 
 B. died before .#., and after the death of C. who survived .#., a ques- 
 tion arose between C.'s personal representative, and the person next 
 entitled in succession, whether C. as tenant for life of such funds as 
 bank stock, carrying a higher rate of interest, and long and short 
 annuities wearing out rapidly, had not received a larger sum of 
 money for interest and dividends than she would have been entitled 
 to if the funds had been sold immediately after the testator's death, 
 as they ought to have been, and the produce invested in the pur- 
 chase of three per cent consols. That question necessarily depended 
 upon a preliminary one, viz. whether the bequest of the personal 
 estate was general or specific 1 ? If the former, C 's receipts were too 
 large, and could not be allowed to the prejudice of those persons 
 intended to take after her. If the latter, C. was entitled to the 
 enjoyment of the funds in specie from the death of the testator, and 
 consequently to receive their full annual produce. And Lord Eldon 
 determined that the legacy was a general one : and that C.'s estate 
 should answer for the excess of her receipts as tenant for life ; ob- 
 serving, that the legacy could only be specific upon one of two 
 grounds, viz. either upon the words describing the personal estate, 
 or upon the construction of those words, coupled with the devise of 
 all the landed estates of A. ; for every devise of land, however ex- 
 pressed, was of necessity specific. There being no description of 
 the personal estate so as to render the bequest of it, even in this sense, 
 specific ; viz. expressive of ASs intention, that the personal estate he 
 left at his death, should be enjoyed by the successive legatees in its 
 then state, his Lordship took the second ground, and said, that the 
 intention to bequeath personal estate specifically, had never been 
 considered manifest, from a disposition of the personal estate in the 
 same clause with land, which must be taken to be specifically given : 
 and that the cases did not go the length, that if the enjoyment of 
 personal property were portioned out in life interests, with remain- 
 ders over, it was specific. 
 
 Allusion was made in the last case, to legacies of general personal 
 estate specific in this sense, that the legatee should take it discharg- 
 ed from debts and legacies. But this species of bequest does not 
 regularly fall under present consideration, since its basis is an in- 
 ference, not made in general cases, upon the bequest of all the tes- 
 tator's personal estate, but on the effect of that circumstance, con- 
 nected with what arises out of other parts of the will, with regard to 
 the intention to fix, upon other property, charges that would, in the 
 first place, fall upon the personal estate bequeathed ; so Lord Eldon 
 expressed himself in the last case. The treating, therefore, upon 
 this kind of specific legacy, will be postponed till we arrive at the 
 chapter* in which it is proposed to consider the instances in which 
 a testator's personal estate, instead of being the primary, will be 
 only the secondary fund for the discharge of debts and legacies, viz. 
 a fund in aid of the real estate. 
 
 * Chap. XII.
 
 SECT. I.] Eights of Specific Legatees, 187 
 
 CHAPTER IV. 
 
 Rights of Specific Legatees under the Words of the Will, and 
 against the EXECUTORS ; and the Rights of Specific Lega- 
 tees of Goods and Chattels in remainder against Specific 
 Legatees for life. 
 
 THE subjects of the present Chapter will be discussed under the 
 following arrangement : 
 
 SECT. I. What personal estate will pass to specific legatees 
 
 under the words of the will. 
 1 . Considering when tJie words refer to the date of the 
 
 will, and when to the death of the testator. 
 2. What will pass by the words goods, household goods, 
 personal estate, property, and things when referred 
 to as being in a particular place ; and 
 3. When the woi'ds goods, &.c. will be restrained to such 
 only as are ejusdem generis with those specified in 
 the will, and when not. 
 
 4. Constructionofthewoi'ds household furniture, house- 
 hold stuff, chattels, live and dead stock, stock up- 
 on a farm, effects, utensils, money, security for 
 money, medals, debts, linen and clothes, farm and 
 plate. 
 SECT. II. What will pass a specific bequest of personal estate 
 
 in the Colonies. 
 
 SECT. III. Of the title of a specific legatee to an excess of the 
 
 fund whether of capital QV profits accrued between 
 
 the date of the will and the death of the testator. 
 
 SECT. IV. Of mistakes in regard to the subject specifically be^ 
 
 queathed. 
 1 . In the description of the fund, and the admissibility 
 
 of extrinsic evidence. 
 
 2. Of the admission of such evidence to show a testa- 
 tofs intention by explaining the sense in which he 
 used the words of the bequest ; and 
 3. The consequences of mistakes in the calculation of 
 the specific funds when they are wholly given to 
 one person, and when to several persons in frac- 
 tional parts. 
 
 SECT. V. The rights of specific legatees against the execu- 
 tors. 
 
 SECT. VI. The rights of specific legatees of goods and chattels 
 in remainder against the preceding tenants for 
 
 life. 
 
 1. When an inventory or security will be required; 
 and 
 
 2. The rights where a tenant for life of a lease surren- 
 ders the old and takes a new one ; and 
 
 3. Of contribution an the payment of fines.
 
 188 Rights of Specific Legatees, [Cn. IV. 
 
 SECT. I. What personal Estate will belong to the specific 
 Legatees under the words of the Will. 
 
 1. In considering this subject, there are two periods of time to be 
 noticed ; the one the date of the will, and the other the death of the 
 testator ; for if a testator show an intention to dispose of such goods 
 or personal estate as belonged to him at a particular place when he 
 made his will, as by the terms " of all such part of my personal 
 estate as is now in my house at ./#." property afterwards brought 
 into that house will not pass to the legatee. 
 
 Accordingly, in Dormer v. Burnet,(a) A. bequeathed to B. her 
 house in C., and by a codicil, " all the goods she brought into the 
 house, except what are mentioned in a schedule." There was no 
 schedule found ; and the Court held the exception void, but the de- 
 vise good ; and that none of the goods passed, save those which 
 were in the house at the time the codicil was made. 
 
 In unison with the last case are the observations of Lord Eldon, 
 in delivering his judgment in Howe v. The Earl of Dartmouth,(b) 
 before stated. 
 
 So also in the Attorney General v. Bury.(c) A. devised all the 
 arrears now due and unjustly detained from him by B. to be em- 
 ployed in a certain charity. The question was, whether arrears 
 which incurred after the date of the will should pass ? And the 
 Lord Keeper decided in the negative, because the devise was con- 
 fined to the arrears due when the will was made. 
 
 But if the bequest be general, as " of all the testator's goods, &c. 
 in a particular house or place," or " which he shall have or leave 
 there at the time of his death ;" whatever personal chattels(d) are 
 found there at that period will be the property of the legatee. 
 
 Thus A. devised " all his personal estate at a place called W" to 
 his wife B. And as to what passed by this bequest, the Chancellor 
 declared, that under those general words, whatever personal estate 
 the testator had at the place described at the time of his death pass- 
 ed to the legatee ; and that the legacy was to have relation to that 
 period, and not to the date of the will.(e) 
 
 So also in Gayre v. Gayre,(f] B. devised his house in C. and all 
 his goods, &c. therein to D. for life, &c. The Lord Keeper decreed, 
 that the goods and furniture in the house at the death of the testa- 
 tor passed to D. 
 
 But to confine the words of the bequest to the making of the will, 
 the expressions must unequivocally refer to the property which the 
 testator then had ; otherwise they will not be allowed that effect. If 
 then a testator were to bequeath to B. his library now in the custo- 
 dy of C. ; since the word now is more applicable to the description 
 of where the library was than to limiting the legacy to identical 
 books in C.'s possession, books afterwards added to the library will 
 pass to the legatee. In illustration of this, 
 
 B. bequeathed in these words : " I devise my library of books now 
 
 (a) Cited in Downing v. Totunsend, Ambl. 281. (6) 7Ves. 147. 
 
 (c) 1 Eq. Ca. Abr. 200. pi. 12. (rf) 3 P. Will. 335. 
 
 (e) Sayer v. Sayer, 2 Vern. 688. 
 
 (/) 2 Vern. 538. and see Masters v. Masters, 1 P, Will. 421 424. Green v. Sy- 
 monda, 1 Bro, C. C. 129, in notis.
 
 SECT. I.] under the Words of the Will. 189 
 
 in the custody of C. to All Souls College in Oxford ;" and he gave 
 to the same college 40001. more to augment their library. B. after- 
 wards bought several valuable books, which were placed in the 
 library. And it was the question, whether those books passed to the 
 college "? The then Master of the Rolls determined in the affirma- 
 tive, upon the construction of the word now ; his Honour being of 
 opinion, that now did not relate to the books which were in the 
 library at the date of the will ; but that it denoted where the library 
 was, and might have been intended to distinguish that particular 
 library from any other belonging to the testator. (g) 
 
 It is, however, in general essential, (A) that the goods intended for 
 the specific legatee should be actually in the house at the death of 
 the testator; for as none but such as are then in that situation an- 
 swer the terms of the bequest, none other can pass to the legatee, 
 under whatever circumstances evincing the testator's intention to 
 have placed particular articles in the house, which never were there, 
 if he had not been prevented by death. (i) 
 
 Accordingly, in Grandison v. Pitt,(k) A. bequeathed to B. his 
 goods and furniture in and at his house at C. and belonging to C. 
 He had ordered some furniture for that house, which was not carried 
 there before his death ; and it was determined, on the authority of 
 the case of the Duke of Beaufort and Lord Dundonald,(l) that such 
 furniture did not pass. 
 
 The period being settled to which the specific bequest refers, the 
 next consideration is the species of property which will be compre- 
 hended under the expressions used by the testator. 
 
 We shall commence our inquiry with the effect of the word 
 " goods ;" when the bequest is of goods, generally, and also when 
 that term is controlled by confining the legacy to such goods as are 
 in, or at, a particular place, and therefore specific. 
 
 2. The word " goods" is nomen generalissimum, and when con- 
 strued in the abstract, the term will embrace all the personal estate 
 of a testator, as bonds, no.tes, money, plate, furniture, &c.(m) Such 
 is its effect by the canon law, as well as by our own, which seems to 
 have adopted the former. By the civil law bona mobilia, and bona 
 immobilia were the membra dividentia of all estates ; so that as 
 bona immobilia were land, bona mobilia included all personal pro- 
 perty. (w) 
 
 But when a testator, instead of bequeathing his goods, generally, 
 restricts the import of that word, by limiting its effect to those in a 
 particular situation, as by specifically bequeathing " all his goods in 
 the house at .#." In such and the like instances, since the goods 
 given are connected with a subject in its nature showing the sense 
 in which the term was used by the testator, viz. restricted to such 
 articles and things as were in possession and not in action, those 
 only savouring of locality ', will pass to the legatee. Such as furni- 
 
 (#) All Soul's College v. Coddrington, 1 P. Will, 597. 
 (A) See chap. V. sect. 1. sub-sect. 3. 
 
 (z) See Lord Shaftesbury v. Lady Shaftcsbury, 2 Vern. 747. and Lord Eldon's 
 observations, 11 Ves. 662. (k) 2 Vern. 740. ed. by Raithby, in a note. 
 
 (/) 2 Vem. 739. and see Heseltine v. Heseltine, 3 Madd. 276. 
 (m) See 1 Atk. 180. 182. 3 Atk. 62. Moore v. Moore, 1 Bro C. C. 128. 
 (n) Swinb. pt. 7. sect. 10. Anson. 1 P. Will. 267.
 
 190 Rights of Specific Legatees, [Cn. IV. 
 
 ture not attached to the frcehold,(o) linen, plate, money, and bank 
 notes, which are considered money, but not bonds, mortgages, re- 
 ceipts, &c. which have no locality in the sense required in these 
 cases, as will appear from the authorities which we shall proceed to 
 state. 
 
 Thus in Chapman v. Hart,(p] A. bequeathed to the plaintiff in- 
 consideration of her care of him during his sickness at Jlntigua, 
 500J. and all his goods and chattels in his house, and on board the 
 Warwick man of war, to be by her disposed of to such of his nephews 
 and nieces as she should find most friendly to her, to be kept as 
 memoranda of him. And Lord Hardwicke said " undoubtedly no 
 goods and chattels can pass but such as were property in possession, 
 not choses in action, except bank notes, which the Court considers 
 as cash ; for these words may certainly extend further than to bare 
 furniture, and if any ready money in the house (if not an extraordi- 
 nary sum and just received) that would pass. In the Countess of 
 Aylesburtfs case,(</) I was of opinion, that by devise of all things in 
 a house, money and bank notes, passed to the testator's wife, and 
 that the testator meant to consider the notes as cash, but bonds do 
 not pass, not admitting of a locality, except as to the probate of 
 wills, &c." Again 
 
 In Green v. Symonds,(r] B. bequeathed to C. all his goods, &,c. 
 in his study, except his books and writings. He gave to D. all his 
 books at his chambers in the Temple. At the testator's death there 
 were in his study, a considerable sum of ready money, securities for 
 money and plate ; but he had removed the books into the country. 
 One of the questions was, whether C. should take the money, secu- 
 rities, &c. which were in the study, or the furniture only. And the 
 Lord Chancellor held, the money and plate to pass, but not the secu- 
 rities for money, as they were choses in action. 
 
 The case of Moore v. Moore,(s) determined by Lord Thurlmv, 
 is a leading authority upon the present question, viz. that bonds and 
 other choses in action will not pass to a specific legatee by the words 
 " goods and chattels." 
 
 In that case, the testator left a testamentary paper which was es- 
 tablished in the ecclesiastical court, and by which he bequeathed as 
 follows : "I give all in Suffolk to R. Moore and heirs. I give to R. 
 Moore all my goods and chattels in Suffolk." The testator had 
 goods and chattels in Suffolk, and also in other counties ; and in a 
 drawer at his house in Suffolk, a bond was found which the plaintiff 
 claimed specifically as goods and chattels in Suffolk; and the ques- 
 tion was, whether he was entitled to it as part of his specific legacy ? 
 And Lord Thurlow said, the question was, whether from the context 
 the bond could pass 1 ? As to the point of construction, said his 
 Lordship, the Court construed legacies according to the canon, not 
 the common law. It was argued, that bona included all credits, as 
 well as chattels at common law, and that the words " all goods and 
 chattels" would pass bonds and all credits. As to that, Lord Thur- 
 low observed, that the true point was, whether the context would 
 
 (o) 3 P. Will. 335. (/i) 1 Ves. sen. 271. (?) Pofihamv. Aylesbury, Amb. 
 68. Corrected by Lord Eldon, 11 Ves. 662. (r) 1 Bro. C. C. 12U. innotis. 
 
 (*) Ibid. 127.
 
 SECT. I.] under the Words of the Will. 191 
 
 qualify the meaning of goods and chattels ? That whenever words 
 were used in an instrument, it was a good rule to say they shall be 
 construed according to their legal sense. In order to construe them 
 otherwise, there must be something to show that they are used in a 
 less technical meaning ; a fact to be shown by the person claiming 
 under the particular sense ; and his Lordship proceeded to the fol- 
 lowing effect : " First, it has been argued, that the words do not 
 mean credits ; I think they do : secondly, that the words, when local, 
 do not imply them ; and, with respect to specialties, that they have 
 no locality ; the question is, whether this peculiar kind of credits has 
 that sort of locality which was within the idea of the testator *? This 
 is not a solemn codicil, and requires therefore a more favourable con- 
 struction. The sentences are mangled and imperfect. It is con- 
 tended that this sort of credits has locality, because the law has 
 made it bona notabilia. But it is doubtful whether the Court Chris- 
 tian having thought it sufficiently local for that purpose, is enough 
 to make it local as to this. If the question hung more in doubt than 
 it does, I should be obliged to follow Lord Hardwicke's case.(f) 
 The judgment there goes clearly to this case. He has compared 
 bank notes to money. CJwses in action have no locality. Bonds 
 have no more locality than other choses in action, otherwise than by 
 drawing the jurisdiction of the ecclesiastical court ; and the judg- 
 ment in that case must prevail. In this also it has weight, that the 
 house was given to the same person. Removal of goods for a neces- 
 sary purpose, is not an ademption of a specific legacy ; but would 
 you follow bonds and judgments in the same manner *? It would be 
 too much to argue it in that way. The authority of that case must 
 go so far as to include bonds with other choses in action, as to that 
 want of locality." Bill of R. Moore dismissed. 
 
 The several cases which have been adduced, concur in establish- 
 ing that bank notes will pass to the specific legatee under a bequest 
 of all goods in the testator's house. The reason is, that they are 
 considered money, and not merely as representing money. This 
 being so, it is an apparent consequence of the decisions made by the 
 courts of law, that Exchequer notes, promissory notes payable to 
 bearer, Exchequer bills and bills of exchange indorsed in blank, are 
 not to be considered choses in action, but money of the persons in 
 whose possession they are ;(w) and that those instruments possessing 
 equally with bank notes, the locality required, will pass to .the lega- 
 tee under the terms of the above bequest. 
 
 The term " household goods" is frequently adopted by testators. 
 By that word, every thing of a permanent nature, i. e. articles of 
 household which are not consumed in their enjoyment, that were 
 used in, or purchased, or otherwise acquired by a testator for his 
 house, will pass to the legatee, as will appear from the cases after- 
 wards produced. 
 
 But if a testator, having goods or household goods of his own and 
 others, used in his trade, specifically bequeath his household goods, 
 or goods in his house in which there are also goods in his business, 
 the latter will not pass by those words, but it will be presumed that 
 
 (t) C/iajiman v. Hart, sufira, p. 190. () See Collins v. Martin, 1 Bos. & 
 
 Pull. 648. 651. and Wookey v. Pole, 4 Barn. & Aid. I. Also see Chap. I. p. 36.
 
 192 Rights of Specific Legatees, [Cn. IV. 
 
 the testator used them as applicable to such goods and furniture with 
 which his house was supplied for his comfort and convenience, and 
 not with an intention to include those that constituted the bulk of 
 his personal estate. 
 
 Accordingly, in Pratt v. Jackson,(x) B. a freeman of London, upon 
 his marriage with C. made a liberal provision for her, and the issue 
 of the marriage, by articles of settlement ; and it was declared that 
 the articles should not extend to prevent C. from having any legacy 
 or bequest that B. should think proper to leave her, nor to all or any 
 of the household goods, or utensils of household stuff, rings, plate, 
 jewels, or linen of B. at his death ; all of which she was to receive 
 and enjoy absolutely. B. died intestate, and without issue, and A. 
 was his administrator. B. before his marriage, and when he died, 
 was possessed of an hospital near Gosport, which he employed in 
 entertaining sick and wounded seamen of the royal navy, under con- 
 tracts with the commissioners, and which he had furnished for the 
 purpose, with nearly seven hundred beds, and other furniture suita- 
 ble only for such services, and not for private use. These, C. claimed 
 as household goods, or utensils of household stuff, within the meaning 
 of the articles ; and Lord King decided in favour of her claim. But 
 A. the administrator, appealed from the decree ; for whom it was in- 
 sisted, that the goods and utensils in the hospital were used by B. in 
 a public business and undertaking, in the nature of a trade, at a place 
 upwards of seventy miles from London where he lived, and where 
 he never resided, nor had so much as an apartment for his own use ; 
 the whole undertaking being entirely carried on by agents and ser- 
 vants ; that, according to C.'tf construction, she -might have been 
 entitled to the whole ofB.'s personal estate, if he had been of a trade 
 in which he might have employed his estate in household goods, 
 or utensils of household, or wherein he occasionally might have 
 laid out his money for improvement ; and that as C. and her children 
 were so liberally provided for by the articles, she was not entitled 
 to a strained construction of them. For all which reasons, the de- 
 cree ought to be reversed, and it was so ordered by the House of 
 Lords. 
 
 But the reader's attention must be drawn to the case of Nichotts 
 v. Osborn,(y) in which A. bequeathed her " household goods" to B. 
 The question was, whether her plate passed by those words ? And 
 although the Master reported that there were manifest intentions and 
 declarations of A. that she did not mean the plate to pass ; yet, since 
 he certified it to have been commonly used in the house, the Master of 
 the Rolls rejected all the evidence regarding the intention, there being 
 a complete and plain will in writing, which should not be altered or 
 influenced by parol proof. Upon a petition presented to his Honour 
 to rectify the minutes in the cause, alleging, that as the registrar 
 had taken them, A.'s plate generally was directed to be delivered to 
 B.; whereas, it appeared that part of the plate she was possessed of 
 at her death was only in pawn to her, and that doubts had arisen 
 whether such part would pass under the general direction, his Honour 
 
 (x) 2 P. Will. 302. Reversed by the House of Lords, 1 Bro. Parl. Ca. 222. 
 8vo. ed. and referred to by Lord Hardivickc in Crichton v. Symes, 3 Atk. 63. and 
 Le Farrant v. Sfiencer, 1 Ves. sen. 97. (y~) 2 P. Will. -419. ed, by Cox.
 
 SECT. I.] Binder the Words of ihe Will. 193 
 
 declared, that as well the plate which was the testatrix's own, as 
 that which was pawned to her and was in common use, passed by the 
 bequest. 
 
 In considering this and the preceding case, it seems reasonable 
 to doubt whether so much of the decree in the case last stated, as 
 declared, that the plate in pawn to the testatrix A. passed to the 
 legatee, would be now adopted, for such plate was not Jl.'s to dis- 
 pose of; and its being used by her affords no conclusive evidence 
 of her intention to include it as part of her household goods, since 
 there was other plate to satisfy those words ; and the use of the plate 
 pledged with her was distinguishable from that of her own as being 
 merely temporary, i. e. until redemption ; hence, it seems reasonable 
 to infer, that by the words, " household goods," she only intended 
 to dispose of such as were absolutely her own ; and it is conceived, 
 that the principle of the case of Pratt v. Jackson, applies to the 
 present, which may be considered as over-ruled by it. 
 
 That plate will pass by the description of " household goods," 
 appears not only from the case last stated, but also from the autho- 
 rities after mentioned. It seems, however, to have been the law of 
 the Court of Chancery at an early period, before plate was in 
 common use, that it should not be considered as included in a be- 
 quest of household goods or furniture ; but since that time, as the 
 nation grew richer, and plate became more general, the law of the 
 Court altered by degrees ; and it seems to be now settled, that plate 
 will be included under those words, and that parol evidence of a 
 contrary intention in the testator, will not be admitted. (z) 
 
 In Flay v. Flay,(a) A. bequeathed his " household goods" and 
 stuff to his wife, and died, having made his daughter executrix. 
 The question was, whether by the devise the wife should have the 
 plate which was commonly used about the house, viz. a tankard and 
 twelve silver spoons ; and whether she should have a bracelet that 
 she used to wear, and some pieces of old gold, viz. two pieces which 
 were given by her husband for her concurrence in a fine, and some 
 other pieces that were presents before marriage from her godfathers 
 and other friends, which she had kept all the time of the marriage ? 
 And it was resolved, that the tankard and spoons commonly used 
 about the house passed by the words " household goods :" and that 
 as to the bracelet and pieces of bid gold, (they not being wanted to 
 pay debts), since they were presents (as before mentioned), and were 
 permitted by her husband to be enjoyed by her while she lived, it 
 could not be intended, without express words, that he meant to de- 
 prive her of them at his death ; and, therefore, that they should re- 
 main with her. 
 
 So in Snelsonv. Corbet,(b) B. by will, gave all his plate to his wife ; 
 and by a codicil he bequeathed to her the use only of his " house- 
 hold goods" for life. And by Lord Hardiuicke: " If 13. had given 
 all his household goods and plate I should have had some difficulty; 
 but the question now is, whether he meant to include plate in the 
 words, " household goods." There is evidence of the plate being 
 
 (z) See the last case, and 2 Vem. 638. 1 P. Will. 425. 3 P. Will. 419. 
 (a) 2 Freem. 64. (b) 3 Atk. 370. 
 
 VOL. i. B b
 
 194 Rights of Specific Legatees, [Cn. IV. 
 
 used in B.'s house, and I am of opinion, therefore, that household 
 goods do include plate." 
 
 From the cases before stated and referred to, it appears that the 
 circumstance of the plate being in common use was considered to 
 be material. But in Kelly v. Powlet,(c) the Master of the Rolls 
 denied that it was of any consequence whether the plate was in 
 common use or not, provided it were suitable to the situation and 
 quality of the testator. 
 
 It has been decided, that in bequests of " household goods," all 
 such articles found in the house whose use is in their consumption, 
 or do not naturally fall within the description of " household goods," 
 were not meant by the testator to be included, and therefore did 
 not pass to the specific legatee. 
 
 Thus, in Slanning v. Style,(d) A. after giving to his wife specific 
 chattels for life, bequeathed to her his tea-table, tea-kettle, and all 
 his pewter, brass, linen, and woollen, with " all his household goods," 
 and implements of household, in or about his dwelling house, to be 
 at her disposal. And all his stock of corn, and the residue of his 
 personal estate, he gave to his three sisters equally, whom he had 
 appointed executors. The widow claimed the malt and hops in the 
 house, also the ale and beer in it, together with the guns, pistols, 
 and the clock ; insisting that they were intended for her by the 
 bequest of " household goods and implements of household," since 
 they were goods in the house, and necessary for the use and support 
 of the family. But by Lord Talbot, Ch. " These things which are 
 victuals, and whose use is in their consumption, cannot, in their 
 common natural sense, be taken to be household goods, and pass 
 under that denomination; they, therefore, do not belong to the 
 widow, but to the executors, the residuary legatees. Neither will 
 the guns and pistols, if used in riding or the shooting of game, pass 
 to her by those words, although they may in some sense be said to 
 be for defence of the house; but the clock in the house, if not fixed 
 thereto, will be included in the words, " household goods." 
 
 The last case appears to be a decision that those articles of furni- 
 ture only, which are detached from the freehold, will pass by the 
 words " household goods and implements of household." The 
 principle seems to be, that such articles alone were within the con- 
 templation of the testator, and that an intention ought not to be 
 imputed to him in the use of those general words to include fixtures, 
 which are parts of the freehold, and go with it to the heir or de- 
 visee, (e) 
 
 The words of which we have been treating were limited to such 
 goods and household goods as were in a particular place. But the 
 import of those terms will be greatly enlarged when the expressions 
 of the bequest are extended not only to such goods or household 
 goods as are in, but to those also about, the testator's dwelling- 
 house and outhouses. An instance of this occurred in the follow- 
 ing case: 
 
 fc) Ambl. 605. approved of by Lord Atvanley in Porter v. Tournay, 3 Ves. 313. 
 
 (rf) 3 P. Will. 334. See also Porter v. Tournay, 3 Ves. 313. 
 
 (e) See Elwes v. Maw, 3 East, 51. where the prior cases are collected. Also, 
 Davis v. Jones, 2 Bam. & Aid. 165. and Buckland v. Butterfield, 2 Brod. & 
 Bing. 54.
 
 SECT. I.] under the Words of the Will. 195 
 
 In Gower v. Gmver,(f) Jl. directed by his will that all his plate, 
 furniture, " household goods," and all books and other furniture of 
 his library, and all stores and implements of all sorts and kinds, and 
 " other goods and chattels" whatsoever, which should be in and 
 about his dwelling-house and outhouses at 13. at his death, should 
 be preserved for, and held and enjoyed by such person or persons 
 as should be entitled to his estates in C. and D. under the limita- 
 tions in his son's marriage settlement. The question was, whether 
 running horses which were at B. at the death A. passed by the 
 above words l And Lord Henley thus expressed himself: " A. in- 
 tended that nothing should be disturbed about the estate at B., but 
 that every thing there, whether of profit or amusement, should pass. 
 I am of opinion that the running horses are comprehended within 
 the words." 
 
 The remarks which have been made upon the import of the words 
 " goods" and " household goods," equally apply when the terms 
 of the specific bequest are of all the testator's property or personal 
 estate, in, or in and about, his dwelling-house. Hence, neither 
 bonds nor other choses in action, and probably Exchequer notes, 
 &c. as before mentioned, (g) will pass to the specific legatee. 
 
 Accordingly in the case of Jones v. Sefton,(h) B. bequeathed to 
 Lady Sefton all the residue of his personal estate and effects of what 
 nature and kind soever, except such parts as should be in and about 
 his house at C.; which parts he gave to his son Lord Sefton, and 
 directed his household furniture to go as heir-looms. B. also gave 
 all arrears of rent which should be due to him from his Lancashire 
 estate at his death, to his son. By the decree an inquiry was 
 directed as to what parts of B.'s personal estate were in and about 
 his house at his death, and the natures of them. It appeared from 
 the report, that in an iron chest, in which the steward kept the cash 
 arising from rents and profits, was found a bond to B. dated in JYb- 
 vember 1784, for securing 2151. 10s. arrears of rent, and in cash 
 373?. 2s. 9rf. The question was, whether the bond and cash found 
 in the iron chest passed to Lord Sefton under the exception and 
 disposition of the arrears of rent *? And Lord Rosslyn determined 
 in the negative. 
 
 It is to be observed, that as in the authorities before stated, so in 
 the last case, the bond in the house was held not to pass to the spe- 
 cific legatee, under the description of part of the testator's personal 
 estate. And although those terms would in general include ready 
 money, and even bank notes, (as appears from the cases before cited in 
 the consideration of the import of the word " goods"), and probably 
 Exchequer notes, &c. as before stated ;(t) yet since the cash for 
 arrears of rent, in the present case, found in the iron chestj was not 
 strictly and indisputably the testator's own, nor in his possession, 
 but in that of his steward; and whether such identical money was 
 or was not the property of the testator vested in contingency, viz. 
 depended upon an account between him and his steward, the Court 
 appears to have decided, upon the presumed intention of the testator 
 
 (/) Ambl. 612. 2 Eden. 201. And vide Lord Alvanley's remark upon this 
 case, 3 Ves. 313. 
 (3-) Seesu/zrc, p. 191. (A) 4 Ves. 166. (t) Seesw/m*, p. 191.
 
 196 Rights of Specific Legatees) [Cn. IV. 
 
 not to give specifically this identical cash under those circum- 
 stances, that it did not pass to Lord Sefton, but to Lady Sefton, as 
 residuary legatee. 
 
 So also in Fleming v. Brook,(k] A. bequeathed to the following 
 effect : " I give to B. all my property, of whatever nature or kind the 
 same may be, that may.be found in B.'s house in C., except a bond 
 of D. in my writing box in the said house contained." There were 
 found in B.'s house a deed of mortgage from E. to A. and a bond as 
 a collateral security ; also several banker's accountable receipts for 
 large sums of money. B. insisted that all those properties passed 
 to her under the bequest, and that the present case differed from all 
 those authorities in which it had been held that choses in action 
 would not pass under such a bequest, because A. had expressly ex- 
 cepted one chose in action, which showed his intention that the others 
 should pass. But Lord Redesdale determined, on the authority of 
 Moore v. Moore,(l) which was decided, after a view of all the cases, 
 that choses in action had no locality ; and therefore that neither the 
 mortgage, nor the bond, nor the banker's receipts, passed to B., but 
 that bank notes would have passed, as they were quasi cash. His 
 Lordship did not consider the exception in the will of one security 
 sufficient evidence of the testator's intention to pass the other choses 
 in action. 
 
 This case is only adduced as an authority that a specific legacy 
 of all a testator's property in a particular house will not pass choses 
 in action there. But the question is very different when exception 
 is made by the testator out of what, in his conception, he had given 
 by the words in his will, without the clause of exception ; and it is 
 from this circumstance that the correctness of Lord Redesdale's de- 
 cree may be questioned. The cases restraining the general import 
 of a bequest of all a man's goods, property, or personal estate, in a 
 particular place, are founded upon the presumed intention that the 
 testator merely meant to pass such articles as belonged or were suita- 
 ble to the place or house described ; so that, in general, choses in 
 action will not be included in such a bequest. But when a testator, 
 by excepting a particular species of his personal estate out of the 
 bequest, and which would not have passed if the exception had been 
 omitted, it is clear that he used the legatory words in a sense which 
 he conceived would have passed the excepted subject, as also all 
 others falling under a similar description. Then, in the present case, 
 A.'s particular exclusion of one bond from the operation of the be- 
 quest showed that he had choses in action in contemplation, and that 
 he conceived the words he had used would have passed securities 
 for money, and consequently the bond of D., unless it were except- 
 ed. His meaning, therefore, appears to have been to include all se- 
 curities in B.'s house, except D.'s bond ; and the words " all my 
 property, &,c." being sufficiently comprehensive to include and pass 
 them, a doubt cannot but exist of the soundness of his Lordship's 
 decree, which doubt is countenanced by a decision of Lord Eldon 
 in Hotham v. Sutton,(m) a case similar to the last in principle, and 
 which will be afterwards stated in this section. 
 
 () 1 Scho. ScLefroy, 318. (/) Stated sitflra, p. 190. 
 
 (m) 15 Ves. 322326. and see Crichton v. Symes, 3 Atk. 61. stated infra.
 
 SECT. I.] under the Words of the Will. 197 
 
 That a bequest of " all things" in a particular house will not pass 
 choses in action as bonds, &c. was decided by Lord Hardwicke in 
 the case of Popfiam v. Lady Jlylesbury, before mentioned. (ri) 
 
 In the case of Stuart v. the Earl of Bute,(o) a very extensive in- 
 terpretation was put upon the word " things ;" and it was not, as 
 usual, restricted to articles ejusdem generis with those previously 
 enumerated, in consequence of an intention, inferred from the terms 
 of the whole bequest, that the word was used in its fullest and most 
 enlarged acceptation. The construction was first made by Lord 
 Rosslyn, and afterwards confirmed by Lord Eldon, after much he- 
 sitation. 
 
 The case was, that A. bequeathed in the following words : " I 
 give all the wagon ways, rails, staiths, and all implements, utensils, 
 and things, which at my death shall or may be used or employed to- 
 gether with, or in, or for, the working, management, or employment 
 of any of my collieries or shares of collieries in, &c. and which are 
 or shall or may be deemed or considered to be as or of the nature of 
 personal estate, to my executors ; upon trust to permit the same from 
 time to time to be used, held or enjoyed by the person or persons 
 respectively entitled by this my will, to the use and enjoyment of 
 my several freehold manors, messuages, collieries, lands, and here- 
 ditaments, or parts or shares of freehold manors, &c. as far as the 
 nature of the said property, and the rules of law and equity will 
 admit." Upon a question whether the money due from the fitters, 
 money in the bank, balance in the cash book in C.'s hands, balances 
 owing from several persons, coals resting at the pits and staiths, corn, 
 hay, horses, timber, and deals, oil and candles, and also all wagons 
 and wagon materials, wagon-ways and materials belonging thereto, 
 fire engines, machines, and gins not erected and fixed, ropes, iron, 
 and materials at the pits, stables, storehouses, and horses trappings, 
 gears, &c. not absolutety employed or ustd at tlie testator's death, to- 
 gether with, in or for the working, management, and employment of 
 any of the collieries, or shares of collieries, were or not included 
 within the terms of the above bequest ; it was determined in the af- 
 firmative, upon the ground that the several enumerated articles were 
 necessary for carrying on the trade, and therefore intended by the 
 testator to be given to the devisees of the collieries ; a construction 
 which the Court adopted upon the same principle in the case of 
 Gowerv. Gower, before stated.(jp) 
 
 3. It has been shown that specific bequests, by the words " goods, 
 personal estate, property, or all things, in or at a testator's house, 
 &c." would not pass to the legatee choses in action; and the reason 
 has been given. (q) 
 
 But it has happened, that after, or preceding the word " goods,. 
 &c," the testator has enumerated particular kinds of chattels or per- 
 sonal estate ; or after such an enumeration he has concluded the 
 bequest in giving " all other things," or, " all other goods," in the 
 place described, to the legatee. Under the above general and com- 
 
 (n) Ambl. 68. seesufira, p. 190. (o) 3 Ves. 212. llVes. 457, 
 
 (fi) See supra, p. 195. and in Ambl. 612. See also Boon v. Cornforth, 2 Ves. 
 sen. 278280. stated in next page. 
 (?) See supra, p. 190.
 
 198 High ts of Specific Legatees) [Cn. IV. 
 
 prehensive words, specific legatees have claimed whatever personal 
 proper! \ \vas there, whether consisting of personal chattels, or secu- 
 rities for money ; but it is a rule of construction, perfectly well set- 
 tled, that the generality of those expressions is to be explained by, 
 and confined to the descriptive words, i. e. restricted to such species 
 of property as are ejusden generis with, and would pass by the par- 
 ticular words of enumeration :(r) so that as bonds and other choses 
 in action would not pass by the bequest of goods, &c. at a particu- 
 lar place, neither will they pass by the addition of the apparently 
 more general expressions of " all other things," or, " all other 
 goods," or the like; nor will bank notes or ready money pass in 
 those cases; for when the word "goods, property, or personal estate," 
 are followed or preceded by a specification of chattels of a particu- 
 lar denomination, as, household furniture, &c. it is inferred that the 
 testator used the word " goods, &c." in the same limited sense as 
 those that immediately followed or preceded. Articles of property, 
 therefore, to which the explanatory words apply, will alone pass to 
 the specific legatee (except a contrary intention appear, as in the 
 case of Stuart v. J3ute,(s) last stated.) And since those words do 
 not embrace bank notes or ready money, the terms " goods, &c." 
 explained and confined as above, will riot have that effect, although 
 they, if standing alone, would have passed that species of property 
 as has been before shown. The principle of decision in these cases 
 is manifest intention collected from the will, that testators made 
 use of the words " goods," &c. in a more confined sense than their 
 usual legal acceptation; which, as we have seen, is the same foun- 
 dation upon which courts of equity have determined, that by a lega- 
 cy of" all goods at #." bonds and choses in action will not pass.(J) 
 To illustrate these remarks by examples, 
 
 In Trafford v. Berrige,(u) A. bequeathed to his niece all his goods, 
 chattels, household stuff, furtiiture, and other things, which were then, 
 or should be in his house at the time of his death. Sometime after- 
 wards A. died, leaving about 265Z. in ready money in the house ; and 
 it was decreed that this ready money did not pass, for, by the words 
 other things, should be intended things of like nature and species 
 with those before mentioned. 
 
 In the last case we observed the word " goods," explained by 
 chattels and household stuff, showing that the testator used the word 
 " goods" in the sense of household furniture and the like ; which 
 construction being once ascertained, it is carried on, upon the basis 
 intention, to the last expression, " other things," by confining its 
 operation to things ejusdem generis with those before described. 
 
 Intention being the foundation of the restricted construction put 
 .upon general words superadded to other more limited expressions, 
 intention may also produce different decisions in respect of the same 
 general words in the same will, viz. it may restrain the general words 
 in one clause, and suffer their extension in another. 
 
 An instance of this occurred in Boon v. Cornforth,(w) in which A. 
 
 (r) Porter v. Tournay, 3 Ves. 311-313. Rawlings v. Jennings, 13 Ves. 39. 46. 
 stated infra. Suttonv. Sharp, iRuss. 146. (s) 3 Ves. 212. 11 Ves. 657. 
 
 (0 See supra, p. 189. (u) 1 Eq. Cas. Abr. 201. pi. 14. 
 
 (w) 2 Ves. sen. 278. 280. and Suppl. [139.] and see Stuart v. the Earl viBule, 
 supra, p. 197, and Goiver v. Goiver, supra, p. 195.
 
 SECT. I.] under the Words of the Will 199 
 
 devised to his daughter B. the equal possession and right for life to 
 live at Le Place with her husband, to have the use of the house, plate, 
 linen, and " every thing else," as her occasion should require, as 
 also stabling and fields, or " any thing else," notwithstanding 
 entail after limited. ,#. also directed that all his goods, furniture, 
 plate, books, pictures, " and every thing else," which should be at his 
 house at Lee at his death should remain there to be enjoyed by the 
 person in possession of it for the time being; and he then set- 
 tled that house and lands upon his nephews and their issue. A ques- 
 tion arose whether provisions of any kind, either for the house or 
 stable, as liquors, corn, hay, &c. and some curiosities that A. had in 
 his house, china, japan, India pieces for handkerchiefs, watches, and 
 a cane, passed by either and which of those clauses'? And Lord 
 Hardwicke said, that considering the point on the last clause which 
 makes the articles heir-looms, " every thing else which at my de- 
 cease shall be at my house," must be construed things ejusdem ge- 
 neris, such as are proper to go with the house as heir-looms. He, 
 therefore, decided, that the cane, watches, and India pieces, not 
 made up, could not pass as heir-looms, much less the liquors, hay, 
 &c.; for heir-looms meant things fixed to the freehold, the china, and 
 every thing of that kind set up as ornaments, and to have continuance 
 along with the house, and not consumable as those things were. But 
 with respect to the first clause, his Lordship said, its construction 
 was more extensive, comprising corn, hay, and provisions, in the 
 house, for it was the intention to provide for BSs occasions of re- 
 siding and living there, not for any other occasions. And his Lord- 
 ship determined that this clause included all kinds of provisions for 
 man and horse in the house or stable. 
 
 To the same principle of intention, the decision in the case of 
 Woolcomb v. Woolcomb,(x) is to be referred. In that case, B. be- 
 queathed all the furniture of his parsonage house, and all his plate, 
 household goods, and other goods, (except books and papers,) and 
 all his stock within doors and without, and all his corn, wood, and 
 other goods, belonging to his parsonage house, to his wife ; and 
 made J. S. residuary legatee. The question was, whether ready 
 money, cash, and bonds, should pass to the wife by these words *? 
 It was contended, that the devise of all the testator's goods should 
 carry all his personal estate ; omnia bona, being words of the larg- 
 est extent and signification, with regard to personals. To which 
 it was answered, that if the devise of all the testator's goods were 
 to be taken in so large a sense, it would disappoint the bequest of 
 the residue, which could not be permitted ; that it seemed reason- 
 able the words " other goods" should be understood to signify 
 things ejusdem generis with household goods, in order that the whole 
 will might take effect ; and consequently, that the testator's ready mo- 
 ney, cash, and bonds, should not pass in this case by the word 
 "goods," but belong to the residuary legatee. . And of that opinion 
 was Lord Chancellor King. 
 
 So in Timewell v. Perkins,(y) C. made the following bequest : 
 " I give to Mary Timeioell all mortgages, ground rents, judgments, 
 &c. ; whatever I have or shall have at my death, as plate, jewels, 
 
 (*) 3 P. Will. 112. (y) 2 Atk. 103.
 
 200 Rights of Specific Legatees, [Cn. IV. 
 
 linen, household goods, coach and horses, for her use ; that no hus- 
 band shall intermeddle therewith, and at her death to give them to 
 whom she pleases." Question, whether goldsmith's notes and bank 
 bills, passed to Mary under the above words 9 And by Lord 
 Hardwicke, C.: " I am of opinion the goldsmith's notes and bank 
 bills did not pass by the will to Mary Timewell; for though there 
 is no doubt but the general words, whatever I have or shall have at 
 
 
 'in fi death, would have passed them ; yet the particular words which 
 follow, as plate, jewels, &c. confine and restrain them to things of 
 the same nature ; and so laid down in the case of Trafford v. Ber- 
 rige."(z) 
 
 Upon the principle of the last cases, Lord Hardwicke determined 
 the case of Crichton v. Symes ;() in which D. bequeathed to E. all 
 her goods, wearing apparel of what nature and kind soever, except 
 her gold watch. E. claimed the residue under those words. But 
 Lord Hardwicke was of opinion, that the words were not intended 
 to be a residuary clause, as appeared from the circumstance of D. 
 afterwards giving to her executor a legacy of [50i. ; and that al- 
 though it had been insisted against E's. claim, that the words wear- 
 ing apparel explained !>.'* 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. (</) 1 Bro. C. C. 467. 
 
 VOL. i. C c
 
 202 Rights of Specific Legatees, [Cn. IV. 
 
 general and comprehensive expressions used in, or at the conclusion 
 of a specific bequest of goods, plate, linen, furniture, &c. are to be 
 restrained to articles ejusdem generis, with those particularly enu- 
 merated, and therefore not comprehending ready money or choses in 
 action ; yet since the presumed intention of testators is the basis of 
 that construction, if their intention appear to include, by the gene- 
 ral words, ready money or choses in action, the terms will have that 
 effect. This may happen when the intention is made apparent by a 
 testator excepting out of such terms of bequest a species of personal 
 estate, that would not have passed by them, as has been mentioned, 
 in observing upon the case of Fleming v. Brook. (e) In illustra- 
 tion of the above remarks, we shall refer to a decision of Lord Eldon : 
 
 In Hotham v. Sutton,(f) Jl. having two sons and a daughter, B., 
 C. and D., after bequeathing for their benefits a sum of 12,1001. 
 three per cent consols, gave all the residue of her personal estate 
 and effects to her youngest children, C. and D. as therein mentioned. 
 A. on the day of making her will executed a codicil, and revoked 
 so much of her will as related to the bequest to her son C. of a 
 share of her plate, linen, household goods, and other effects (money 
 excepted,) and gave the whole thereof to her daughter. A* died, 
 leaving her daughter and two sons, her only children ; and at her 
 death, and also at the date of her will, she was possessed of a lease- 
 hold house, and of several sums of .money in three per .cent consols, 
 four per cents, and imperial annuities ; also of money at her banker's, 
 a debt secured on a promissory note, plate, jewels, and trinkets, 
 household furniture, wearing apparel, books, a carriage, wines, and 
 ready money. The question was, whether the daughter was enti- 
 tled under the will and codicil to all the residuary personal estate 
 except money, which depended upon the words, " other effects," in 
 regard to the share of C. revoked by the codicil and given to D.; 
 for if the words, " other effects" in the codicil were to be restrained 
 as usual to property ejusdem generis, with the particular species de- 
 scribed by the words preceding them, then C. would be entitled by 
 the will to a share of all the residue, not consisting of plate, linen, 
 and household goods. Lord Eldon, in deciding the question, ex- 
 pressed himself to the following effect : " Tlie doctrine appears 
 now to be settled, that the words 'other effects,' in general mean 
 effects ejusdem generis.(g] I cannot help entertaining a strong 
 doubt whether this testatrix, if asked whether she meant effects ejus- 
 dem generis, or contemplated the share of 'all which she had con- 
 sidered rrer effects in the will, would not have answered that the 
 latter was . her meaning. Her expression is conclusive upon that. 
 Money cannot be represented as ejusdem generis with plate, linen, 
 and household goods. The express exception of money out of the 
 other effects shows her understanding, that it would have passed 
 by those words, that express words were required to exclude it ; 
 and by force of that exclusion in the excepted article, she says she 
 thought the words of her bequest would carry things non ejusdem 
 generis. This disposition must therefore be taken to comprehend all 
 that she has not excluded, which is money only." 
 
 His Lordship determined that the residuary clause in the will was 
 
 (0 Sufira, p. 196. (/) 15 Ves. 319. (g) Raiolings v. Jennings, 13 Ves. 39-46.
 
 SECT. I.] under the Words of the Will. 203 
 
 defeated by the codicil in every respect, except as to money, and that 
 no part of the testatrix's stocks were excepted by the legal effect of 
 the word money. We shaH next proceed to consider, 
 
 4. What will pass to specific legatees by the words " household 
 furniture." 
 
 By the*term " household furniture," all personal chattels will be 
 included that may contribute to the use or convenience of the house- 
 holder, or the ornament of the house, as plate, linen, china, both 
 useful and ornamental, and pictures. To that effect, the Master of 
 the Rolls expressed himself, and determined in the case of Kelly v. 
 Powlet.(h] But for the same reason that under the words " house- 
 hold goods," it was determined (as has been shown) that goods or 
 plate in the possession of a testator in the way of his trade would 
 not be comprehended,(i) it is settled that such plate, goods or furni- 
 ture will not pass to the specific legatee by the description of " house- 
 hold furniture." And it would seem that exception must also be 
 made of such articles as are fixed to the building, and therefore pass 
 as parts of the house. (A;) 
 
 In Le Farrant v. Spencer,(l) B., a captain of an East India ship, 
 bequeathed to C. and D. 1000Z. each, payable at twenty-one or mar- 
 riage : and he gave TO them '"all his household furniture," linen, 
 plate, and apparel whatsoever, and disposed of his residuary estate. 
 The question was, whether the words " household furniture," &c. 
 should include all plate, India and dimity goods, and some rough 
 diamonds "? Lord Hardwicke directed the Master to distinguish 
 what goods the testator had for his own domestic use, and what for 
 trade or merchandize : without which knowledge his Lordship said 
 it was impossible to determine the extent of the bequest, which only 
 included the former, according to the opinion of the House of Lords, 
 in Pratt v. Jackson ;(ra) which degree was the stronger, because of 
 the words " household stuff;" as also because it was a construction 
 to be made of marriage articles, where the wife was a purchaser 
 of what she was to claim ; but that here the claim was merely vo- 
 luntary. 
 
 Exceptions out of the words " household furniture" are libraries 
 of books, whether great or small collections ; because books being 
 more collected for the improvement and entertainment of the mind 
 than for ornament as furniture, are presumed not to have been in- 
 tended to pass by the description of household furniture. Wines, 
 too, are not included under such description, not falling within the 
 natural meaning and usual acceptation of the words " household fur- 
 niture," as also because their use being in their consumption it is 
 inferred that testators never meant to comprehend such and the like 
 articles in the term household furniture ; the same rule of decision 
 prevailing in this instance as we have seen adopted in the construc- 
 tion of the words " household goods. "(w) These remarks are sup- 
 ported by the following authorities : 
 
 In Bridgman v. Dove(o) A. bequeathed in these words: "I leave 
 
 (A) Ambl. 605. See also, 1 Sim. &Stu. 189. Cole v. Fitzgerald, infra, p. 206. 
 (i) See sufira, p. 191. (fc) See supra, p. 195. 
 
 (I) 1 Ves. sen. 97. and see Ambl. 611. 3 Ves. 313. (m) Stated sufira, p. 192. 
 (n) See sufira, p. 192. (o) 3 Atk. 201.
 
 * 
 
 204 Rights of Specific Legatees, [Cn. IV. 
 
 mv jewels, plate, pictures, medal s, furniture, to my executors, to be 
 equalty divided ; who insisted that under the word " furniture," 
 books would pass. But Lord Hardwicke was of a contrary opinion, 
 observing, that the consideration of the library being a small one, 
 ;>n<! therefore should pass as furniture, had no influence ypon his 
 mind, since great libraries were most frequently placed as ofnaments, 
 and were less accurately chosen than small ones, 
 
 ,'u'//V v. Powlet,(p) the case next stated, is one of frequent refe- 
 rence upon the present subject. It is a decision that by the words 
 " household furniture," plate, linen, and china, both useful and or- 
 namental, will pass to the specific legatee, but not a library of 
 books. It is also an authority that all plate belonging to the testa- 
 tor, (not purchased in the way of trade) suitable to his condition in 
 life, will pass as household furniture, whether it had been used by 
 him or not. 
 
 In Kelly v. Powlet, B. devised to D. her " household furniture" 
 and farming utensils, which should be within or upon her house, 
 lands and premises at C. at her decease ; and she gave her residua- 
 ry estate to E., whom she made executor. B. died possessed of 
 plate of the value of '1600Z. and of useful and ornamental china, 
 books, pictures and linen, all of which were in her house at C. and 
 and were possessed by D., who claimed -them under the above lega- 
 tory words ; but the only questions decided related to the plate, 
 books, linen, and china. It was in evidence, adduced by D., that all 
 the linen in the house .(except a parcel) were in common use, and 
 not more than sufficient for the family. That such parts of the chi- 
 na as were useful had been in common use, and that the ornamental 
 parts of it were placed over chimnies, doors, and upon cabinets, and 
 that the whole was not of considerable value. It was also proved 
 that a room had been converted into a library, in which was a num- 
 ber of books, though not valuable, as it was said they principally 
 consisted of novels, &c. The Master of the Rolls, after observing 
 that the principal question related to the plate, expressed his opinion 
 that it passed by the words " household furniture." He said he 
 knew not any case determined on those words only ; that there were 
 always other circumstances considered, and which might be so varn 
 ous as to occasion different, and even contradictory determinations, 
 viz. that in one case, " household furniture" might pass plate, and 
 that in another it might be excluded. With respect to the necessi- 
 ty of the plate being in use in the family, his Honour thus expressed 
 himself: "The rank and quality of the person possessing it will oc- 
 casion the determination one way. If a person of rank buy a ser- 
 vice of plate suitable to his quality, and never use it, yet I think the 
 plate would pass by the words 'household', furniture.' I cannot 
 agree it is a rule that plate will not pass unless used as such by the 
 testator. There is no such general rule. The question always de- 
 pends upon circumstances, and never was determined by the plate 
 being used or not. I do not in my opinion rely upon the circum- 
 stance of the plate being in common, use. JS.'s keeping her cham- 
 ber, and not using the plate during that period, would not be an ex- 
 emption, nor would any other occasional non-user. To make non~ 
 
 (/z) Ambl. 605. and approved of in the next case.
 
 SECT. I.] under the Words of the Will. 205 
 
 user an exemption must be a case like that of Le Farrant v. Spen- 
 cer,(q) where the testator bought the plate to trade with." As to 
 the books, his Honour said he was not satisfied that B. did not in- 
 tend every thing within the house should pass ; but as the resolu- 
 tion of the Court had been, that books did not pass by the words 
 " household furniture," he must determine so in this case. And he 
 further declared, that the linen and the china, both useful and orna- 
 mental, belonged to D. as also the pictures hung up(r) and in cases, 
 in pursuance of lE.'s admission. 
 
 The last case was followed by Porter v. Tournay,(s) in which it 
 was determined that wines as well as books did not pass by the words 
 " household furniture." 
 
 In that case, C, bequeathed in the following manner : " D. to have 
 the use of the house I now live in, with alt the furniture and stock of 
 carriages and horses, and other live and dead stock, during her life, 
 and 200Z. a year out of the residue of my fortune." The question 
 was, whether D. was entitled to any, and what interest in C.'s books, 
 and his stock of wines? And Lord Alvanley, M. R. decided that 
 D. had no interest in either of them, and observed that this not be- 
 ing an absolute, but a limited interest in the articles, viz. to D. for 
 life, it was naturally to be supposed that such of them as are consu- 
 med in their use, were not intended to be included, and that words 
 are not to be extended to such articles, unless they clearly embra- 
 ced them. His Honour referred to, and approved of the last case, 
 and declared- that D. was not entitled to, or to the use of the books 
 and wine. 
 
 In the above case, C. was possessed of plate, in respect of which 
 there was no question, as the residuary legatee of C. yielded the 
 point in favour of D. upon the authority of Kelly v. Powlet. Yet, 
 although in general plate, as we have seen, will pass under the words 
 " household furniture," still the particular circumstances of a case 
 may, by abridging the natural import of the expression, prevent it 
 extending to plate. This has happened-when a testator bequeathed 
 part of his plate by that term, from which it was inferred, that such 
 a legacy afforded sufficient evidence of intention that he did not 
 mean to pass any of that species of his property by the description 
 of " household furniture." The principle is that before mention- 
 ed,^) which produced the decisions that the bequest of a money le- 
 gacy to the specific legatee " of all the testator's goods in his house," 
 should prevent that word passing ready money there, which it would 
 otherwise have done. 
 
 Thus in Franklyn v. The Earl of Burlington,(u) D. bequeathed 
 to the following effect: "My will and pleasure are, that the furni- 
 ture and pictures in my houses, B., C. and E. shall always remain 
 there, and not in the power of my executors to dispose of, but shall 
 go with my said houses to such of my grand-children as shall be in 
 the possession thereof." D. then directed that the plate gilt with 
 gold, belonging to his chapel at F. together with the ornaments, 
 should remain to the perpetual use of the chapel ; and he appoint- 
 ed G. executor, to whom he bequeathed all his personal estate not 
 
 ($0 See supra, p. 200. (r) See 2 Ves. sen. 279. () 3 Ves. 311. 
 
 (/) SeesAra, p. 198. () Pjre. Ch. 251.
 
 206 Rights of Specific Legatees, [Cn. IV. 
 
 before given. The question was, whether the plate which D. con- 
 -t;uitly used, and which he took with him upon removal from one 
 house to another, belonged to the residuary legatee, or passed under 
 (lie word " furniture" to the owners of the three houses 9 And it 
 uas th< I, ord Keeper's opinion, that although that word would em- 
 brace plate, yet it would not do so in the present case, not only be- 
 cause D. distinguished the chapel plate from the furniture, but also 
 because the testator expressed his intention that the particular furni- 
 ture of each house should go and be enjoyed with the house to which 
 it belonged, and that therefore the plate removed at different times 
 from one to another with D. could not with propriety be said to be 
 the furniture of one house more than that of- the other, so that the 
 plate could not be within D.'s contemplation, when he used the word 
 " furniture." The plate was accordingly adjudged to the residuary 
 legatee and executor. Such, in substance, appear to have been the 
 reasons of his Lordship's decree, and they seem sufficient to have 
 authorized it ; so that the accuracy of this case, very briefly report- 
 ed by Mr. Vernon, who ascribes to the Court a contrary judgment, 
 may be reasonably doubted. (a:) 
 
 With respect to the words " household stuff," every thing will pass 
 by them to the specific legatee, which may be used for the conve- 
 niency of the house, as tables, chairs, bedding and the like ;(y) but 
 apparel, books, cattle, victuals, chases in action, &c. which do not 
 naturally fall within the import of the term, will not be included in 
 or pass by that description, except the context of the will clearly 
 show a contrary intention, of which an instance occurred in the case 
 of Hotham v. Sutton, "before stated. (z) 
 
 In the case of Cote v. Fitzgerald, (a) Sir John Leach, V. C. deci- 
 ded, that the words " household furniture and other household effects, 
 of or belonging to the testator's dwelling-house and premises at his 
 decease," comprised all property in the house or on the premises 
 intended for use or consumption therein, or for ornament thereof; 
 and that it included pistols; apparatus for turning, models, pictures, 
 organ, parrot, books, wine and liquors ; but not a poney, cow, or 
 fowling-pieces, unless it was proved they were kept for the defence 
 of the house. If the hay stack was only for use, it would pass, if 
 for sale, it would not. 
 
 As to " chattels," the word, according to Sir Edward Coke,(b) is 
 of French extraction, and signifies goods; but Blackstone, in his 
 Commentaries,(c) prefers the derivation of the term from the techni- 
 cal Latin \vord.catalla, which primarily signifies beasts of husband- 
 ry or cattle only ; but its secondary sense was applied to all movea- 
 bles generally. He also observes, that in the grand Coustumier of 
 Normandy,(d) a chattel is described to be a mere moveable, but at 
 the same time is set in opposition to a fief or feud, so that it com- 
 prised not only goods, but whatever was not a feud.(e) Now, a fief 
 or feud possesses two requisites, viz. immobility and unlimited or 
 uncertain duration as to time; whence it follows, that whatever 
 species of property wanted either of those qualities, was not a feud 
 
 (x) 2 Venn. 512- (y) Swinb. pt. 7.. sect. 10. p. 484. 
 
 (z) Seesw/jra, p. 202. (a) 1 Sim. &Stu. 189. 
 
 (A) 1 Inst. 118, b. . . (c) Vol. II. 385. (rf) Chap. 87. (e) Fol. 107. a.
 
 SECT. I.] under the Words of the Will. 207 
 
 or fief, and according to us is not real estate ; for our law has annex- 
 ed the same extensive meaning to the word chattels as the Norman 
 law has done ; so that whatever property does not fall within the de- 
 scription of fief or real estate, must be either personal estate or chat- 
 tels. From the above definition of the term " chattels," it naturally 
 occurs that the division must be two-fold, viz. into chattels real and 
 chattels personal.(f). The former are such interests created in lands, 
 which want the unlimited or uncertain duration before mentioned, as 
 terms for years, estates by statute merchants, &,c. The latter con- 
 sist of mere moveable property, as goods, money, and the like. 
 Hence we may infer, that a bequest of all the testator's chattels in 
 the parish of A. will be competent to pass not only his moveable or 
 personal property, except choses in action, but also such interests in 
 lands, less than freehold, to which he maybe entitled in that place. (g) 
 This word, however, must be construed by the context of the will, 
 so that if the bequest be of chattels, or goods and chattels in the tes- 
 tator's house, the word " chattels" will only pass such articles and 
 property as belong to the . house and are detached from it, and in 
 possession and not in action, and will receive the like construction as 
 the word "goods," which has been before discussed. (h] 
 
 We shall next consider the import of the expressions " Live and 
 dead stock." 
 
 The words "live and dead stock" have never occurred alone in a 
 bequest, consequently their import in the abstract could not have 
 received a legal interpretation. Since r however, the term stock is 
 of extensive meaning, and not rendered less so by the prefatory 
 words " live and dead ;" expressions that merely distinguish such 
 part of the personal estate as is inanimate from that which is ani- 
 mate ; it is not improbable that a court might interpret the word 
 stock, under those circumstances, as synonimous with property, and 
 sufficient to pass the whole of a testator's personal estate. It is also 
 observable, that the term stock accords with most of the personalty 
 which a person can die possessed of; as stock of. wine, of linen and 
 china, of cattle, corn, &,c. Hence a rational inference arises, that 
 when a testator, in disposing of his personal estate, expresses him- 
 self by the only words " all my live and dead stock," he used those 
 terms in the sense of embracing the whole of his personal property 
 not otherwise bequeathed. 
 
 But we are supplied with a decision, that when the words " live 
 and dead stock" are preceded by others showing that the testator 
 disposed of all the in-door property which he intended to give to 
 the legatee, but by the effect of which words some of the personal 
 estate in his house would not pass, that intention will prevent the 
 subsequent expressions " live and dead stock" applying to the 
 property within doors, so as to include such part of it as did not pass 
 by the preceding words ; and will confine those expressions to per- 
 sonal property out of doors, upon the same reasoning (as before ap- 
 pears,)^) that a money legacy to B. who is also specific legatee of 
 the testator's household estate by the words " all the goods in my 
 house at A." will exclude B. from taking ready money,' under the 
 
 (/) 1 Inst. 118. (e-) Swinb. pt. 7. sect, 10. p. 475. 
 
 (A) See sujira, p. . 189 et seq. (t) See suflra, p. 199.
 
 208 Rights of Specific Legatees, [Cn. IV. 
 
 description of " goods," which might be found there at the testa- 
 tor's death. 
 
 The case alluded to is Porter v. Tournay.(k) The words of the 
 bequest were, " The aforesaid D. to have the use of the house I now 
 live in, with all the furniture and stock of carriages and horses and 
 other live and dead stock"" during her life. The question was, 
 wlu-ther under any of those.words D. was entitled to the testator's 
 books and his stock of wine's, valued at 150Z. 1 ? It has been shown, 
 that the word furniture would pass neither of these kinds of per- 
 sonalty^/) In consequence it became necessary to consider whether 
 the terms " live and dead stock" would have that effect. And Lord 
 Alvanley, M. R. thus expressed himself: "The whole is qualified. 
 I do not mean to say what live -and dead stock might mean if the 
 words stood independent of every 'thing else ; but upon the whole of 
 this will, I cannot, by any fair inference, deduce that the testator did 
 intend, under the words live and dead stock, as they stand here, 
 his books and wine. Consider what would have been the interpre- 
 tation of these words if nothing at all were said of furniture. No 
 person could haye conceived that those expressions, preceded by 
 carriages and horses, would have meant in-door stock, furniture, &c. 
 which, though dead, could not be coupled and enjoyed with car- 
 riages and horses. It is clear, therefore, that if those words stood 
 alone, the interpretation would be out-of-door stock. They would 
 mean corn, hay, straw, carts, &c." His- Honour determined that the 
 books and wine did not pass, observing that by the word furniture, 
 the testator disposed of every thing he intended in the house, and 
 that by the other words he only meant out-of-door stock. 
 
 But it may be deduced from- the judgment in the last case, that 
 the intention inferred from the words accompanying " live and dead 
 stock" would have been repelled, and that the books and wine 
 would have passed if the testator had added to those expressions the 
 words " in-door and out ;" for then his meaning to dispose of every 
 thing, both within^ and out of doors, would have clearly appeared, 
 as in the case of Gower v. Gower(m) as before stated. (M) 
 
 In a recent case a question arose as to the passing of " live stock" 
 under one of two clauses in a wilL The case was Randall v. Rus- 
 sell,(o) in which Jl. by the first clause bequeathed all his household 
 furniture, goods, plate, linen, china, books, pictures, implements and 
 utensils of household, and all such wines, liquors and provisions as 
 should be in and about his house at his death, and also all his stock 
 of cattle, horses and carriages, and also the harness, furniture and 
 trappings thereto belonging, to B. absolutely. And by the second 
 clause, which immediately followed, A. gave all his messuage or 
 tenement, with the farm and lands (and stock and crop thereon) 
 called L. &c. to the said B. durante viduitate. The question was, 
 under which of those clauses the live stock upon Jl's farm was com- 
 prehended ? And Sir William Grant, M. R. decided, that such stock 
 passed to B. absolutely under the first. B.'s opponents insisted that 
 the live stock used upon the farm did not pass to her absolutely un- 
 der the words " stock-of cattle and horses," but only for life under 
 
 a) 3 Ves. 31 1 . stated sufira, p. 205. [/) Ante, p. 205, 
 
 (m) Artibl. 612. (n) See supra, p. 195. ( ) 3 Meriv. 190.
 
 SECT. I.] under the Words of the Will. 209 
 
 the word stock in the second clause. That, said his Honour, was a 
 strong proposition, for it was asserting, that by tire words " stock 
 on the farm," cattle and horses were more properly designated 
 than by the very words cattle and. horses. .That if Jl. had 
 spoken of horses only in conjunction with carriages, he might have 
 been supposed to have meant carriage horses and not farm horses ; 
 but that he gave not merely his cattle and horses, but all . his stock 
 of cattle and horses ; unless, therefore, it could be contended that 
 wi.'s farm' stock was not his stock, or that all his stock meant some- 
 thing less than his whole stock, his Honour said that he could not- 
 see how JB.'s opponents could succeed iri their claims. 
 
 In the last case a point arose as to the nature of the interest which 
 B. took as tenant for life, in articles of which the use consisted in 
 their consumption.(p) There was no decision, but the Court gave 
 a strong opinion, that a bequest for life, if specific, of things qua, ipso 
 usu consumuntuf, is a gift of the property, and that there cannot be 
 a limitation over after a life interest in such articles, but that the 
 old rule should be revived of a gift for life of a chattel being ah ab- 
 solute disposition of it. The point, however, still suspends in doubt, 
 as at the time when Lord Mvanley determined the preceding case 
 of Porter v. Tournay. What the decision may be when the ques- 
 tion comes before the Court, and is maturely considered, it would 
 be rash to anticipate, but these reflections occur upon considering 
 Sir William Grant's opinion ; if, as admitted, articles of the above 
 description, when included in a residuary bequest, are to be sold, 
 and the interest to be enjoyed by the tenant for life, and the capital 
 to belong to the person in remainder, in order to effectuate the inten- 
 tion of the testator ; it is difficult to assign a satisfactory reason why 
 the same method should not be adopted when they are specifically 
 given to a person for life, antf afterwards to another. The intention 
 is the same in both cases, viz. to divide the things between the ten- 
 ant for life and the person in remainder ; and why that intent should 
 be attended to in the one case, and not in the other, does not ap- 
 pear. The opinions therefore, of the learned Judges referred to by 
 Lord Mvanley in the case last mentioned, that the articles must be 
 sold, and the interest of the money enjoyed by the tenant for life, 
 seem entitled to great consideration ; and although he thought them 
 very rigid, yet other persons may consider the contrary construction, 
 attended with greater hardship, as tending to defeat the interest of 
 the person in remainder, and the intention of the testator. 
 
 As to what will pass by the terms " stock upon a faring' it would 
 seem that not only all moveable property upon or belonging to the 
 farm will be included, but crops of corn standing upon it at the tes- 
 tator's death. This was first decided by Holt, C. L in Cox v. God- 
 slave,(q) in which Jl. bequeathed to B. for life the farm C. in the 
 occupation of .#., with remainder to J. S. He then gave to B. all his 
 goods and chattels, plate, and household goods, stock of his farm, 
 (including C.,) bonds, bills, book-debts, and all other his moveables 
 for life; and appointed B. and/), executors. B. survived the testa- 
 tor, but afterwards dying before severance of the. crops of corn stand- 
 
 (fi) 3 Meriv. p. 194. (?) Cited 6 East. 604. in notis. 
 
 VOL. i. D d
 
 210 Rights of Specific Legatees, [CH, IV. 
 
 in- and crowing upon the farm al liie testator's death ; the question 
 \VM<. ulu'ther those crops belonged to J. S. the devisee of the land, 
 or h;nl become vested in B. under the terms of the bequest of stock, 
 Ar. and consequently belonged to her personal representative 9 And 
 it \\ns determined in favour of the representative of B. as express 
 legatee of them, by the words of the above bequest, although it 
 would .have been otherwise if B.'s title had. solely depended upon 
 her character of executor. 
 
 The last case was followed by that of West v. Moore,(r) in which 
 'A. devised to B. several estates, then in Jl?s own occupation. He 
 afterwards bequeathed to his executors all his money, securities for 
 money, household goods, furniture, plate, china, linen, and stock upon 
 his farm, with the implements of husbandry, and -all other his per- 
 sonal estate of what nature or kind soever, in trust to sell and to 
 apply in payment of his debts, funeral and testamentary expenses 
 and legacies, and to pay the surplus (if any) as A. by codicil should 
 appoint. At his death there were growing upon the estates devised 
 to B. several crops of wheat, oats, beans, and peas. The question 
 was, whether they passed tathe devisee of the lands, or to the exe- 
 cutors under the words' of the bequest ? And Lord Ellenborough 
 and the rest of the Judges of the Court of King's Bench, decided that 
 the crops belonged to the executors ; a decision founded upon the 
 authority of the preceding case of Coo>v. 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 <? The Master was directed to report to the 
 Court the state of the testator's property at the date of his will, who 
 certified as above. Upon which Lord Kenyon ordered a transfer of 
 TOO/. South Sea annuities to B. 
 
 The principle of the last decision is the same with that of the case 
 
 (rf) See Evans v.Trififi, 6 Mad. 91. ( e ) 3 Ves. 310. 
 
 (/) 1 Ves. sen. 255. ) 3 Ves m , in a note.
 
 SECT. IV.] under the Words of the mil. 221 
 
 preceding it, viz. that error demonstrationis non nocet, and that, to 
 enable the Court to correct the mistake, the state of the testator's 
 personal estate when he made his will, may be resorted to. His 
 Honour accordingly observed, that the state of the testator's proper- 
 ty made it manifest he was under a mistake as to the particular stock 
 belonging to him ; but that, whatever stock it was, he certainly in- 
 tended to give the sum of 700Z., part of it, to B. 
 
 So in Gallini v. JVbWe,(&) the testator bequeathed all his money 
 in the Bank of England to his daughters. It appeared that he never 
 had money in the bank, but that he was entitled to some three per 
 cents and Jive per cents bank annuities. Sir William Grant, M. R. 
 held that those annuities passed, notwithstanding the inaccuracy 
 with which the testator expressed himself. 
 
 And in Hewson v. Reed,(i] the testator gave legacies of stock, 
 " being part of stock standing in his name in the books of the Bank 
 of England," when all the stock to which he was entitled, was stand- 
 ing in the names of trustees. Parol evidence of mistake was ad- 
 mitted to show and rectify the error in describing the fund. 
 
 Upon similar principle, if a testator evince an intention to bequeath 
 sums of money owing to him by B. on bond and other securities, 
 and in describing the subject, as a whole, he mentions the sum to- 
 tal correctly, but incorrectly states it as owing upon B.'s bond only ; 
 the whole debt owing by B. on all the securities will nevertheless 
 pass. For when the state of the testator's property is consulted, 
 which shows that a part only of what was intended to be given, was 
 secured by the bond of B., but that B. was indebted to the testator 
 in the sum total mentioned in the will upon the bond and other se- 
 curities ; the latent ambiguity of mistake arising from comparison 
 of the terms of the bequest with the property, enables a court of 
 justice to supply the defect in description by aid of the context ; the 
 intention clearly appearing from the context to bequeath the whole 
 of the debt due from B. in whatever manner secured. (A;) 
 
 Thus in Williams v. Williams,(l) a case in which A. made the fol- 
 lowing disposition : " Whereas my brother B. stands indebted to 
 me by bond in the sum of 3001. and upwards, now I dispose of the 
 same as follows : one-third thereof to the said B. ; one-third to C., 
 and one-third to D. ;" the three being brothers of A. The debt 
 owing by B. was as executor of E., who was indebted to A. in 2001. 
 only by bond; in 1001. by covenant ; and who had also given him 
 a legacy of 501. which remained unpaid. Upon a question whether 
 the whole debt owing by B., or the 2001. only secured by the bond 
 passed "? Lord Kenyan, M. R. said, he had no difficulty in declaring 
 what A. meant to give, although the expression did not describe the 
 situation of the money. His Honour conceived that A. thought of 
 the quantity of the property ; for having three relations, B., C. and 
 D., he meant to give them the 3001. owing to him from B., and con- 
 sequently to include all B.'s debt. The decree was, that the debts 
 by bond and covenant, and the legacy, passed under the bequest. 
 
 (A) 3 Meriv. 692. and see Penticost v. Ley, 2 Jac. & Walk. 207. 
 (0 5 Mad. 451. (k) See ante, p. 213. 
 
 (/) 2 Bro. C. C. 87. ed. by Belt, and see Milner v. Milner, 1 Ves. sen. 106. in- 
 fra, vol. 2. ch. 21.
 
 222 Rights of Specific Legatees, [Cn. IV. 
 
 In conformity with the cases upon the present subject, was deci- 
 ded the case of Selwood v. Mildmay ;(m] in which B. bequeathed 
 to C. for life the interest of 1250Z. "part of his stock in the four 
 <cnt annuities of the Bank of England, with such dividends as 
 should be due on the said 12501. at his death ;" and he gave the ca- 
 pital after C.' decease to several persons, always describing his stock 
 as his four per cent stock. It appeared that he had not any four per 
 cents either when he made his will or at his death ; but that about 
 two years prior to the will, he sold the whole of his stock in that 
 fund, and invested the proceeds, also previously to his will, in long 
 annuities, of which he had 137/. standing in his name at his decease. 
 These facts were proved before a Master by affidavit, and reported 
 by him to the Court ; as also the substance of the affidavit of the at- 
 torney who prepared the will, stating how the error in describing the 
 fund arose. And Lord sllvanley, M. R. decided, that the legacy 
 should not be disappointed, but be paid out of the testator's per- 
 sonal estate. 
 
 The reasons for his Honour's decree appear to have been two ; 
 first, that a latent ambiguity arose from the circumstances of the tes- 
 tator not being sufficient to meet the legacy he had given ; and se- 
 condly, that such ambiguity authorized the admission of parol evi- 
 dence to show how the mistake arose ; the error itself being suffi- 
 ciently apparent. 
 
 But the case is of no further authority from the facts contained in 
 it than to the following extent : that when a legacy is specific, col- 
 lateral evidence (of the state of the testator's property at the date 
 of the will) may be received concerning the subject to which the 
 bequest applies, for the purpose of ascertaining whether the descrip- 
 tion agrees with it or not ; and that if there be no such fund belong- 
 ing to him as that described, and he had property in other funds not 
 answering the exact description, but of the same nature with it,(w) 
 such property will pass to the legatee, upon the presumption that it 
 was meant to be given, though under a mistaken description. Such, 
 it is presumed, is the law established by the cases. They are far 
 from countenancing the proposition, that if a testator had any stock 
 in the fund described, either the state of his property, or any other 
 extrinsic evidence could be admitted to explain or ascertain the 
 meaning of the testamentary words used in disposing of it ; a sub- 
 ject which we shall proceed to consider 
 
 Secondly. No rule of law is more clear, than that a will is not to 
 be expounded by extrinsic evidence. Hence the intention of tes- 
 l tators in making a specific bequest, or in giving a general legacy, 
 >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. (</) 
 
 - It may be considered as settled, that after a decree obtained in a 
 suit for the administration of assets, the Court will not only restrain 
 executors from selling(r) or applying specific legacies in discharge 
 of debts, but enjoin creditors from proceeding at law against the ex- 
 ecutors,^) upon the principle that the assets are to be administered 
 in equity, and no delay or injury can arise, since the funds will be 
 properly applied under the eye of the Court ; and if the plaintiff 
 neglect to prosecute the decree, a defendant or a creditor, who had 
 proved his debt before the Master, will be permitted to do so.(t) So 
 far the law and its principle are clear. 
 
 But it may happen that specific legacies, if disposed of, may admit 
 of no adequate compensation to the legatees, as of family pictures, 
 &c.; and that an executor, from malicious motives, may be desirous 
 and intend to apply a specific legacy to pay debts, although the 
 general assets may be sufficient to satisfy all demands. And for the 
 purpose of affording a pretext for such a procedure, he may in col- 
 lusion with a creditor, induce such creditor to bring an action, and 
 
 (0} Morley v. Bird, 3 Ves. 629. (fi) 4 Ves. 556. 563. 567. (?) 4 Ves. 563. 
 
 (r) See Moseley's Rep. p. 376. () Kenyon v. Worthington, 2 Dick. 668. 
 Brooks v. Reynolds, 1 Bro. C. C. 183 Goatev. Fryer, 3 Bro. C.C. 23. Paxtonv. 
 Douglas, 8 Ves. 520. Perry v. PhUifis, 10 Ves. 39, 40. Gil/tin v. Lady South- 
 amfiton, 18 Ves. 469. Jackson v. Leaf, 1 Jac. & Walk. 229. 
 
 (0 Powell v. Wall-worth, 2 Madd. 183. Sims v. Ridge, 3 Meriv. 458.
 
 SECT. VI.] against the prior Tenants for Life. 231 
 
 then pretend that he was under the necessity of paying the debt 
 with the specific funds as the only property in his possession with 
 which he could discharge the demand. In the absence of authority, 
 it may be presumed, that in the first case a court of equity will re- 
 strain the executor from acting contrary to his duty, and in opposi- 
 tion to the testator's intention ; and that in the second, the Court 
 will not only enjoin the executor from disposing of the specific lega- 
 cies, but will also restrain the creditor, even before decree, from re- 
 ceiving satisfaction out of them, in consequence of legal proceedings 
 begun and continued in fraudulent collusion with the executor. (u) 
 It is however clear, that the Court will give such directions to the 
 executor as may be necessary for preserving the specific property to 
 the legatees ; and which was done by Lord Eldon in the case below 
 referred to.(x) 
 
 SECT. VI. We shall lastly proceed to consider the Rights of 
 Specific Legatees of Goods and Chattels in remainder, against 
 those entitled to them for life. 
 
 1. When an inventory or security will be required. 
 
 In instances where parts of a testator's personal estate are specifi- 
 cally bequeathed for life, with an executory limitation after the 
 death of the tenant for life to another person ; the first legatee must 
 sign and deliver to the second an inventory of the chattels, express- 
 ing that they are in his custody for life only, and that afterwards 
 they are to be delivered and remain to the use and for the benefit 
 of the second legatee. (y) But it seems to have been the ancient 
 practice of the Court of Chancery to require the person entitled to 
 the partial interest, to give security to or for the benefit of the lega- 
 tee appointed to succeed him. (2) The practice, however, became 
 gradually altered as above stated, upon a conviction, that requiring 
 from the first legatee only an inventory of the property specifically 
 bequeathed, was attended with more equal justice to both legatees. 
 Besides, as the testator had thought proper to entrust the first lega- 
 tee with a personal use of the articles for life, it was not for the 
 Court to destroy that confidence, except under special circum- 
 stances. But if such circumstances be shown and proved as would 
 make it dangerous to trust the chattels in the hands of the first le- 
 gatee, without taking a sufficient security, as in the instance of in- 
 solvency, such security will be required. In Foley v. Burnell,(a) 
 Lord Thurlow thus expressed himself: " The cases as to tenant for 
 life giving security for the goods, have been over-ruled, and the Court 
 now demands only an inventory; which is more equal justice, since 
 there ought to be danger in order to require security." 
 
 2. Effect of renewal of leases by specific devisees for life. 
 
 It has occurred that devisees of partial interests in terms of years 
 have renewed them, and questions have arisen between those de- 
 visees and the persons appointed by the will, to take them in re- 
 mainder, upon the subject of the beneficial interests in the new 
 leases. But the following rule appears to be firmly settled, viz. that 
 
 () Alsager v. Rowley, 6 Ves. 750. (x) Clarke v. Lord Ormonde, about Afiril 
 1821, since reported, 1 Jacob. 108. (y) 3 P. Will 336. 1 Atk. 471. 2 Atk. 82. 
 
 (z)9 Mod, 93. 2 Vern. 453. (a) lBro.C.C. 279. Scsee^owsv. Noble, 2Vern.249.
 
 232 Rights of Legatees in remainder, [Cn. IV. 
 
 if a term for years be given to A. for life, with an executory devise 
 to B. after ASs death, and A. surrender the old and take a new lease, 
 A. will hold the renewed lease upon the trusts of the old one ; upon 
 the principle, that it being manifestly the intention of the testator, 
 in giving a renewable interest, that the renewed interest should 
 enure for the benefit of all the persons interested in the old term, a 
 court of equity will not permit that intent to be defeated. It there- 
 fore holds A. to be a trustee of so much of the renewed term as 
 shall remain after his death, for the benefit of B.(b) 
 
 So it will be if the testator were only tenant from year to year, 
 and bequeathed the farm to A. and B. successively as above, and A. 
 procured a lease of it for a term of years; because the testator 
 having an interest at his death, which he was entitled to dispose of,(c) 
 the first legatee is not allowed to take the new lease, except upon 
 the trusts of the will ; the case being in principle the same as that 
 before proposed. And it is indifferent whether the renewal be made 
 by the tenant for life, or by an executor or trustee. (d) 
 
 Thus in James v. Dean,(e) a testator gave " all the estate and in- 
 terest" he should have at his death in certain leasehold premises 
 (describing them) to A. for life, remainder to B.,'C. and D. The 
 lease under which he held the estate expired some time before his 
 death, but he continued in possession, and became tenant from year 
 to year at an annual rent. A. was executrix as well as tenant for 
 life, and obtained a new lease; and the questions were two; 1st, 
 whether the testator had at his death such an interest as could and 
 did pass by his will ; and 2dly, supposing that to be so, whether it 
 was such an interest as precluded ASs renewing for her sole and ex- 
 clusive benefit 1- And Lord Eldon determined both questions in the 
 affirmative, upon the principles before stated. 
 
 3. When tenant for life renews a lease bequeathed to him, and to 
 others in remainder, to which new interest a court of equity, as we 
 have seen, attaches the trusts of the old lease ; the remainder men 
 have a right to call upon the tenant for life to contribute so much of 
 the fine as is proportionate to his actual enjoyment of the new term, 
 the old rule of contributing one-third of the whole being now ex- 
 ploded^/) The following instance will show what are the condi- 
 tions upon which the persons in remainder will be entitled to the 
 trust of the renewed lease. Suppose A. to be a tenant for life of a 
 term under a devise as above, and to renew for twenty-eight years, 
 when twelve of the old term were unexpired. Suppose also A. to have 
 enjoyed nine years of the new term, after the expiration of the twelve 
 years, residue of the original term. Lord Thurlow declared, that the 
 Master ought to take the sum paid by A. for renewal of the lease, as 
 the value of the term purchased, viz. the term of twenty-eight years, 
 to commence at the end of the twelve years. That the Master should 
 then consider the value of the term of nine years after the existing 
 
 (ft) Taster v. Mariott, Ambl. 668. Ro<we v, Chichester, ibid. 715. Pickering 
 v. Vo-wles, 1 Bro. C. C. 197. 
 
 (c) Doe v. Porter, 3 Term. Rep. 13. (d} 3 Meriv. 196. 
 
 (e) 11 Ves. 383. 395. and see Randall v. Russell, 3 Meriv. 190. 196. also 1 Ball 
 c Beat. 46. Mulvany v. Dillon, ibid. 409. 411. Wmslow v. Tighe , 2 Ball & Beat. 
 ,'* % re v ' D fr htn > 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 <S." 
 together with the lease of the said house for the residue of the term. 
 B. had two houses, that in <S'. and another in T. at each of which he 
 resided alternately. When he made his will his plate, linen and 
 furniture were in the house at S. except sufficient linen to serve the 
 family for one week without washing, which were in the house at T. 
 It appeared that B. had only one service of plate, which, with all the 
 linen, except sufficient for one week's use without washing, always 
 accompanied himself and family from one house to the other, when 
 
 (K) Stated by Mr. Raithby in a note to that case, 2 Vern. 748. 
 (or) 2 Ves. sen. 431. (y) 4 Bro. C. C. 537, 
 
 VOL. I. I 1
 
 248 Of the Memption [Cn. V. 
 
 they changed their residence. TJiere happened to be no plate in 
 the" house at S'. at B.'s death, except a silver bowl, but his widow^ 
 the legatee, not only claimed the linen and furniture which were in 
 that house at the last mentioned period, but also such plate, linen 
 and furniture as were in the house when he made his will, or such as 
 at that time he had been in the habit of using in his house at S. dur- 
 in<* his residence there, and which were carried backwards and for- 
 wards between the two houses, as he resided in either. Lord Tkur- 
 low said, that B. having only one set of plate and linen, which was 
 not sufficient for both houses, was accustomed to remove them with 
 himself, it was therefore like a general devise of all his plate and li- 
 nen, and his Lordship ordered all the plate to be delivered to the 
 widow, and also all the linen, except the linen for the week that was 
 left at the house in T. 
 
 It was before noticed that when goods are specifically given, the 
 rule is general that they must be in the testator's possession at his 
 death, so that if he disposed of any of them, the legacy would be 
 so far gone.(2) But this qualification must be observed, that if the 
 disposition be not absolute, it will not have the above effect, as 
 where a. testator pawns or pledges an article specifically bequeathed, 
 a right of redemption is left in the testator, and passes to the legatee 
 at his death, and that interest entitles him to have the subject re- 
 deemed out of the general assets of the testator. (a) 
 
 It is to be further remarked, that when a specific legacy of pro- 
 perty which the testator had at the date of his will is once adeemed 
 by extinction of the subject, and there is nothing remaining to which 
 the words of the bequest can apply, the mischief cannot be remedied 
 by a simple re publication and confirmation of the will. (6) But it 
 would seem that republication might have an effect favourable to 
 the legatee, if after the ademption of the legacy and before the re- 
 publication, the testator acquired property to which the words of the 
 will could be applied. Suppose, then, the legacy to be of goods or 
 stock of which the testator was possessed at the date of his will, 
 that he sold them and invested the proceeds in the purchase of other 
 goods or stock and afterwards to republish and confirm his will by a 
 codicil ; it is presumed that the republication, although unable to 
 revive that which was extinct, would nevertheless entitle the legatee 
 to the new articles ; first, because the terms of the bequest are suf- 
 ficient to embrace them, and secondly, because, by the republica- 
 tion, the will is made to speak from the date of the codicil. (c) 
 
 4. Since the situation or locality of goods specifically bequeathed, 
 may, as we have seen, be such as to exempt them from the rule 
 which requires their being found at the testator's death at the place 
 described in his will, so may the nature of the subject have a simi- 
 lar effect, according to a decision of Lord Hardwicke. To illustrate 
 this in the instance of partnerships. It has been determined that if 
 a partner, under articles providing for their renewal, specifically be- 
 
 3 o v^' P< ^ 246- ( fl ) Swinb - P 525 - 2 Bro. C. C. 113. 
 
 nJ2 ,, 2 /y e <?R Sen D ^ E** 6 "** v - Monck, 1 Ball & Beat. 306. Chesslyn v. 
 Cresswdl, 3 Bro. Parl, Ca. 246. 8vo ed 
 
 ,,L %KSLI; Fe 7f^ g ^ 2 Bro - C - C - 292 - a decision of Lord T/turloiv over- 
 Vek len 419 m '" Hardwicke in Abney v. Miller, 2 Atk. 599. See also 2
 
 SECT. I.] of Specific Legacies. 249 
 
 queathed his share of the profits (naming the amount,} and upon the 
 expiration of the old, new articles are entered into, by which his 
 share of profits is altered, the legacy will not be adeemed. The 
 principle of this decision has been before stated, viz. that it is to be 
 presumed from the nature of the property, that the bequest was made 
 in contemplation of the determination and renewal of the old arti- 
 cles, and an alteration in the shares of the partners, and that there- 
 fore since the subject bequeathed always continued in the same fund, 
 its amount alone being altered, and the new articles being a con- 
 tinuation of the old, it would be unreasonable and contrary to the 
 testator's intention when he made his will, and also to the nature of 
 the transaction, to hold it an ademption of the specific bequest. Ok 
 this opinion was Lord Hardwicke in the case of Backwell v. Child,(d) 
 which was to the following effect : 
 
 A., B. and C. were' partners in the banking business under arti- 
 cles made in the year 1743. .#., after reciting in his will that he 
 had reserved to himself by the articles, nine in twelve parts of the 
 profits to arise by banking in his house at T., did (in pursuance of 
 the power also reserved thereby) dispose of such nine parts in man- 
 ner following : one ninth part to B. and C. in ad'dition to the shares 
 they were entitled to under the articles, as a recompense for the 
 trouble they snould incur in carrying on the banking business for 
 the benefit of his wife and children ; another ninth part to his wife ; 
 three ninths to his eldest son; and four ninths to his two youngest 
 sons. The articles of 1743, expired after the date of the will, and A. 
 entered into new articles with B. and C. at the end of a year after- 
 wards, by which the business was divided into twenty-four parts or 
 shares, and fourteen of them were declared to belong to A., seven to 
 B. and three to C. There was a provision in the articles of 1743, 
 that if any of the partners died during the partnership under those or 
 any future articles, the shares of the persons so dying should belong 
 to their executors. There were also secret, or, what are called, side- 
 articles entered into by them, but no new ones were made when the 
 parties entered into the last articles. Upon a question whether the 
 second articles were an ademption or a revocation of rf.'s will, Lord 
 Hardwicke, determined, that they were not, observing, that although 
 the fund was altered and differently arranged, it was in fact subsist- 
 ing at #.'s death, and his Lordship said, " that when a person in 
 trade makes provision outofh\s share for his family, and afterwards 
 renews the partnership, by which perhaps his interest is varied, yet 
 it is not a revocation ; if it were, it would occasion great confusion." 
 
 5. With respect to the ademption of specific devisees of lands 
 held under leases for terms of years or for lives, by the subsequent 
 surrenders of the old leases for the purpose of renewal, the following 
 rules and distinctions may be collected from the cases determined 
 on the subject. 
 
 FIRST, As to leases for terms of years. 
 
 The same rule which requires the existence of the thing specifi- 
 cally bequeathed, at the death of the testator, and before so frequent- 
 ly exemplified, equally applies to the subject now under considera- 
 tion. The only question to be settled is,, whether the words of the 
 
 (rf) Ambl. 260. See also Ellis v. Walker, ibid. 309. and stated ante, p. 155.
 
 o-, Of the Ademption [Cn. V* 
 
 lienuest merely refer to the identical lease or term for years which 
 the testator was possessed of when he made his will, or whether they 
 arc sufficiently comprehensive to include such estate in the lands 
 which the testator should have in them by renewal or otherwise at 
 the period of his death. In the first case an effective surrender of 
 the lease will adeem the legacy ; and in the other, the bequest will 
 not be disappointed. It, therefore, will be useful, first to consider 
 the expressions which have been adjudged to be restrictive of the 
 bequest, to the lease or term that the testator had at the date of his 
 will, and secondly, those which have been considered large enough 
 to comprise all the interest he had in the lands, at his decease, how- 
 ever altered or modified after the making of his will. 
 
 1. When the surrender of a lease specifically bequeathed, will ef- 
 fect an ademption. 
 
 An examination of all the cases. upon the present subject, appears 
 to establish the following rule : that when a testator, in disposing of 
 lands in which he is possessed of the legal estate for the residue of 
 a term of years, expresses himself in the present tense, and all the 
 words directly refer to the term or lease of which he was then pos- 
 sessed, none of them having a prospective import, referring to his 
 death; and there is nothing apparent upon the face of the will, to 
 show a clear intention that he used the words in any other sense 
 than they grammatically and legally import ; the term, lease, and 
 interest only which he had when he made the bequest will pass to 
 the legatee. Hence it follows, that his surrender of the lease will 
 adeem the legacy, by annihilating the subject of the gift. And since 
 the expressions in the will embrace no other interest than that ex- 
 tinguished, a new term acquired by the testator upon a renewal of 
 the surrendered lease, cannot pass to the specific legatee. It must, 
 however, be noticed, that the surrender of the old lease must be ef- 
 fectual, or there will be no ademption. '.And it is conceived that 
 the above observations will be supported by the following au- 
 thorities : 
 
 Thus, in JIbney v. Miller ^(e] A. bequeathed all his college leases 
 which he then held of Magdalen College to E. to be sold immedi- 
 ately after his death, with directions to divide the proceeds amongst 
 several persons, including E., and A, appointed E. executrix and 
 residuary legatee. A. afterwards surrendered his college leases, and 
 accepted two new ones, the one in December 1736, and the other in 
 August 1740. A. paid large sums of money for fines, but the last 
 lease was not sealed with the college seal till after his death. The 
 question was, whether the specific devise of the old leases was adeem- 
 ed by their surrender and acceptance of the new. And Lord Hard- 
 wicke determined that the surrender of the old, and acceptance 
 the new lease in 1736, was an ademption, because the words of 
 devise being in the present tense, and therefore only applicable to 
 the lease then in existence, could not possibly comprehend the re- 
 
 swed lease. But as to the new lease of 1740, his Lordship decided, 
 it was void for want of the college seal, the devise of the old 
 one was not adeemed by the mere attempt of A. to renew. 
 
 1 he last case was followed by that of Rudstane v. Anderson,{f) in 
 (e) 2 Atk. 593. 597. (/) 2 Ves. sen. 419.
 
 SECT. I.] of Specific Legacies. 251 
 
 which A. devised in the following words : " All my lands, tenements, 
 and hereditaments at JVestow in Yorkshire, and all my tithes and 
 ecclesiastical dues payable out of Westow aforesaid, or any other 
 towns or places near the same," I give to B. At this time A. was 
 seised in fee of her estate at W. and possessed of a Imse of the tithes 
 there under the Archbishop of York ; but she afterwards surrender- 
 ed that lease and took a new one, and of which she died possessed. 
 The only question was, whether the devise of the tithes was adeem- 
 ed by the surrender of the old lease ? And Sir John Strange, M. R. 
 .decided in the affirmative, and remarked, that he saw no distinction 
 between the words in the will, " all my tithes at Westow;" and if 
 they had been " all my lease or interest in that lease at JVestow" 
 because the latter words must refer to the interest A. had at the time 
 of making her will ; which interest being extinguished by the sur- 
 render, the new estate in the tithes which she acquired by the sub- 
 sequent lease, could not pass under the description in the bequest, 
 without the aid of a republication of the will. 
 
 Similar to the last authority was the case of Hone v. Medcraft,(g) 
 where A. bequeathed to B. " the perpetual advowson and disposal 
 of the living or rectory of Waverdon for ever, together with the 
 tithes of all sorts thereof. The rectory was held by a lease under 
 New College, Oxford, for a term often years from 1766 ; which A. 
 surrendered after the date of his will ; and A. took a new lease in 
 the year 1770 for ten years, and died before its expiration. One of 
 the questions was, whether the advowson passed by the will, or the 
 devise of it was adeemed by the surrender of the old lease, and the 
 acceptance of a new one 9 And Lord Thurlow determined that the 
 legacy was extinct ; remarking, that he had read Abney v. Miller, 
 and all the other cases on the subject, and discovered that he must 
 contradict all of them, if he did not construe the present devise of 
 the leasehold estate, which was afterwards surrendered, a lapsed 
 devise. 
 
 It appears that the preceding cases were decided upon expres- 
 sions, that from their import could not be considered as relating to 
 any estate or interest, but that which the testators were possessed of 
 under the then existing leases. But the case next stated proves the 
 following proposition ; that however general the terms of bequest 
 may be, yet, if instead of having a prospective view, so as to em- 
 brace any interest the testator may have in the subject at the period 
 of his death, they merely relate to, and are satisfied by the interest 
 which he had and devised at the date of his will; such terms or ex- 
 pressions will not prevent an ademption by the surrender of the old 
 lease, and pass to the legatee the new estate acquired in the subject 
 by the testator, after the devise by renewal or otherwise. In illus- 
 tration of this, suppose B. to devise to C. his leasehold house in D. 
 and all his estate, term, and interest therein; the ktter general words 
 would be referred to, as they are satisfied by the identical estate, 
 term, and interest, which B. had in the house at the period of the 
 devise, and a subsequent surrender of the lease by the testator would 
 be an ademption of the legacy. (A) 
 
 (,) 1 Bro. C. C. 263. (A) See James v. Dean, 11 Ves. 383-387. 395.
 
 225 Of the Ademption [Cn, V. 
 
 Accordingly, in Slatter v. Noton,(i) Jl. devised to B. her lease- 
 hold garden and the stable adjoining her dwelling-house, during his 
 life with remainder to his children ; but if he died without issue, she 
 then gave the said garden and stable, and "all her estate, term, and 
 interest therei^" to C. absolutely. With respect to the dwelling- 
 house, A. bequeathed it to D. for life, with remainder to his children ; 
 and if he died without issue, then she gave her said dwelling-house, 
 and " all her estate, term, and interest therein," to E. and F. abso- 
 lutely. The premises were held by the testatrix under lease from 
 the corporation of Winchester, which she surrendered and took a 
 new lease for forty years; and the question was, whether the specific 
 devise was affected by the surrender and renewal of the lease *? And 
 Sir William Grant, M. R. determined that the legacy was adeemed, 
 upon the principle, that A. having expressed herself in the present 
 tense, (none of the words being prospective to take in any interest 
 which she might subsequently acquire in the house, stable, &c.) the 
 terms were referrible to no other estate in the house, &c. than what 
 she possessed under the lease existing at the date of the will. 
 
 In the last and similar cases, if the wills had been republished, 
 the ademptions created by the surrenders of the old leases, would, 
 as it is presumed, have been remedied in the acceptances of the new, 
 since the effect of republications is to make the wills speak from 
 the dates of the codicils, as before observed, (A;) which being subse- 
 quent to the renewals, and the renewed interests falling within the 
 terms of the bequests, there appears to be no reason to prevent those 
 interests from passing to the legatees. Such was the opinion of 
 Sir John Strange, M. R., in Rudstone v. Anderson, before stated ;(/) 
 and so Lord Thurlow determined in Coppin v. Fernyhough,(m) 
 which was a case to the following effect : 
 
 A. being seised of a freehold farm, called C. farm, and possessed 
 of the manor of D. under a lease from the prebendary of the pre- 
 bend of D. for twenty-one years, which was usually renewed every 
 seven years, bequeathed to his daughter an annuity charged on C. 
 farm, and upon all his leasehold estates in the parish of D. ; and he 
 devised the same, subject to the. annuity, to the same uses, &c. as 
 were declared of his freehold lands, limited in strict settlement by 
 a prior instrument. The testator .renewed the lease which existed 
 at the date of his will, and purchased a lease for three lives of other 
 lands, and then made a codicil, devising his purchased estate to 
 trustees, &c. It was one of the questions, whether, if the renewal 
 of the lease of the manor of D. were an ademption of the specific 
 devise, the will was not republished by the codicil, and the renewed 
 lease did not pass to the specific legatee *? And Lord Thurlow de- 
 termined, that by the codicil, the will was republished, which ena- 
 bled such will to pass the renewed lease : a decree necessarily ad- 
 mitting that the renewal was an ademption of the specific legacy. 
 
 It is observable that the preceding cases, in which ademptions 
 were effected by surrenders of the old leases, were cases where the 
 legal estate in the terms, was vested in the testators, and not in 
 other persons in trust for them. In instances of the latter kind, 
 
 (i) 16 Ves. 197. (*) Sufira, p. 250. (/) p. 250. 
 
 (m) 2 Bro. C. C. 292. and see Carte v. Carte, 3 Att. 175--180.
 
 SECT. I.] of Specific Legacies. 253 
 
 Lord Hardwicke has expressed a clear opinion, that what would be an 
 ademption at law, the legal interest being in the testator, will not be 
 so in equity, when the testator is merely entitled to the equitable inter- 
 est ; and his Lordship observed, (n) that an abundance of acts were 
 sufficient to pass the trust or equitable interest, which would not 
 pass it at law. The principle appears to be this : that when the 
 subject is purely legal, as where the testator is possessed of the legal 
 term, the act, which at law would amount to an ademption, must 
 be equally so in equity to preserve uniformity of decision ; but that 
 where thesubject is solely within the jurisdiction of a court of equity, 
 as where the 'testator is merely cestui que trust, and the equitable in- 
 terest alone is bequeathed, the Court will not permit a mere surren- 
 der of the old lease by the testator and his trustee to defeat the spe- 
 cific legatees, but will consider the intention appearing upon the 
 will ; and although there may be no expressions sufficient at law to 
 pass the renewed lease, yet it will attach the trusts of the old to the 
 new lease, when it is apparent that the testator, by the surrender, 
 did not intend to disappoint the provisions he had made by his will. 
 
 Accordingly, in Carte v. Carte,(o) A. being prebendary of Tach- 
 brooke, granted, in the year 1714, a lease of his prebendal lands to 
 one of his children, for twenty-one years, who declared the trust for 
 A. for so many years of the term as he should live, and then for 
 such persons as he should appoint by deed or will, and in default of 
 appointment, among all his children equally. The lease was annu- 
 ally renewed, and similar declarations of trust were executed by the 
 trustee. In 1735, Jl. made his will, and bequeathed to B., his eld- 
 est son, his residuary estate, whether real or personal ; and by a 
 supplemental clause he declared that B. " should have the disposal 
 of the lease of his prebend of Tachbrooke, made to his daughter C., 
 and that B. should receive to himself all the profits and advantages 
 arising and accruing from it." In 1739, the last new lease was 
 granted to C. ; but it appeared from a clause inserted in the space 
 between the conclusion and signature of the will, after the granting 
 of the last lease, that the will was republished : and although the 
 cause was decided upon that point, Lord Hardwicke determining 
 that the renewed lease passed to B. by the republication, yet his 
 Lordship was of opinion, that if the will had not been republished, 
 the renewal of the lease would not have been an ademption; the 
 subject devised being a trust, and the intention clear, that no 
 ademption was meant by the testator,(/>) 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, 
 
 (<?) 3 8c 4 Will. & Mary, chap. 14. and see Westfaling v. Westfaling, 3 Atk. 
 460-465. (/) 29 Char.' II. chap. 3. sect. 12. 
 
 (g-) Duke of Devon v. Atkins, 2 P. Will. 381. and see Atkinson v. Baker, 4 
 Term Rep. 230. Camfibell v. Sandys, 1 Scho. & Lefroy, 281-289, 8cc. and 
 Rijiley v. Waterworth, 7 Ves. 425. 441, &c. 
 
 (A) By-the Chancellor in Sayer v. ijayer, Pre. Ch. 393. 
 
 (z) See the beginning of chap. 3. p. 150, and pp. 168. 181. 
 
 (k) Acton v. Acton, 1 Meriv. 178, stafecPsw/zra, p. 183. Smallbone v. Brace, 
 Finch. 303. 
 
 (/) Roberts v. Pococfc, 4 Ves. 150160, ante-, p. 181. and Lambert v. Lambert, 
 11 Ves. 607, sufira, 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, 
 mil 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 Ademption, 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. 
 
 1. When the children are legitimate. 
 2. Exceptions to the presumption of ademption in cases 
 'under the last article. 
 
 SECT. II. Of the ademption of Legacies 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 
 the thing was extinct, and nothing semained at his death to which 
 the testamentary description could 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 not 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 portion, 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 c&se^f) a father bequeathed 1000JL a piece to his 
 five daughters. He afterwards advanced, upon the marriage of one 
 of them 100QZ., and it was determined that her legacy or portion was 
 adeemed. 
 
 So also in Ward v. Lant,(g) A. bequeathed 5000Z* 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 4000/.; 
 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 v. <Chalcroft,(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. (d) Ibid. 153. 
 
 (0 See 2 Atk. 518. and 17 Ves. 191. 2 Cox's Ca. 220. 
 
 (/) Cited 2 Vern. 257. and see Farnham v. Pliillifis, 2 Atk. 215. 
 
 () Prei Ch. 182. (A) 1 Stra. 236. (i) Cited 2 Atk. 492, () Ambl. 325.
 
 258 General Legacies, [On. VI. 
 
 1 OOO/. among them, with the exception of Lady Lincoln, whom he 
 had advanced. And he bequeathed his personal estate amongst his 
 daughters, again excluding Lady Lincoln. After this, Grace, one 
 of tiie 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 9 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-: and 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 \. Salisbury, (1} 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 15001. 
 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 1500Z. a piece;" and he then gave the residue 
 equally amongst his children. William Prince, the father, died 
 without revoking his tvill, 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 1 500Z. upon the 
 latter words. 
 
 (0 1 Bro. C. C. 427. and Jenkins v. Powell, 2 Vern. 115. 
 (z) Cas. Tern, Tab. 71. 3d edit.
 
 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 200/. 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 10001. He afterwards, upon the marriage of the 
 legatee, paid 20001. in part of a portion, and covenanted to pay 4000/, 
 more at his death. It-*vas declared by Lord Camden, C., that J5. 
 having advanced a portion of 6000Z. on the marriage of his daugh- 
 ter, viz. 20001. in prtesenti, and 4000Z. 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 650/. for the purchase of a cornet of 
 horse for his son, intended that the sum should be deducted out of 
 750Z. 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 3000Z. for 
 the portions of his younger son and daughter B. and C., and such 
 otlier 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. 
 (/*) 1 Dick. 353. 
 
 ($0 Pre. Ch. 263. and see Thelluason v. Woodford, 4 Madd. 420. S. P. 
 (r) 17 Ves. 184.
 
 260 General Legacies, [Cn. VI. 
 
 of their guardian, or at twenty-one if they married without such con- 
 snit. ami in sons at twenty-one, with benefit of survivorship, amongst 
 thrm. in tin- event of the deaths of any before they acquired vested 
 interests. .1. declared that if his son B. succeeded to A. 's real es- 
 tate before he attained twenty-one, by the death of his eldef brother 
 )., his share of the 3000/. shofjld go to the other younger children, 
 and that so it should be in the event of any other younger son suc- 
 ceeding to the estate before twenty-one. Ji. theri directed thai the 
 portions should carry legal interest from his death, with a power to 
 his executors to 'apply part of it for each child's maintenance and 
 education ; declaring that the surplus should accumulate, be invest- 
 ed, and added to the capital of each portion. The executors, too, 
 were authorized to advance any part of the capital of a son's share 
 for his advancement in life. And in order to make the fortunes of 
 B. and C. equal (which was not the case for the reason stated by .#.,) 
 he gave to B. the further sum of 5001. with legal interest from his 
 death, in the same manner as he had expressed in the disposition of 
 the 3000/. and interest. A. also charged his personal and part of 
 his real estate with the payment of those two sums. A. was seised 
 under his marriage settlement, of certain real estates for life, with 
 remainder in tail to his eldest son D. And upon an arrangement 
 that took place upon the marriage of D. after the will was made, a 
 recovery of the estates was suffered by A. and D. ; the uses of which 
 were declared by settlement to enure as to part, to the use of trus- 
 tees for 600 years, upon trust if B. survived A. to raise for him 3500J. 
 to be a vested interest upon A.'s death, and paid within six calendar 
 months afterwards, without interest. . The question being whether 
 B. should have double portions, or whether the legacy was adeem- 
 ed by the settlement, B. having become the only person interested 
 in the 3000Z. given by the will, on the events which had happened, 
 Sir William Grant, M. R. determined that the portion by the settle- 
 ment, was an ademption of that presided by the will, and for the fol- 
 lowing reasons : 
 
 His Honour observed, that, in instances of double provisions by a 
 father for a child, slight circumstances of difference were not to 'be 
 regarded ; and in applying that rule to the case before him, he made 
 the following remarks : " That although neither provision was to 
 take effect in possession till the father's death, yet the legacy was to 
 vest in possession at the age of twenty-one, or upon the previous 
 marriages of daughters with consent, with interest from the father's 
 decease, whereas the provision by settlement was payable within six 
 months after his death, without interest. That the direction as to 
 maintenance and advancement out of the legacy during the time it 
 was contingent, could have no application to the provision by the 
 settlement, which was to be raised only in the event of B. surviving 
 his father, and even in that case payable within six months after \he 
 death of the father, without interest. Upon the whole (said his Ho- 
 nour,) it is not clear, which is most advantageous for the objects of 
 the provision ; but the balance against the last, if any, is not such as, 
 independently of other grounds, will warrant the Court to hold, that 
 the one provision cannot be a satisfaction of the other."(s) 
 
 
 
 (s) On this subject see Jesstfn v. Jesson, 2 Vern. 255. Thomas v. Kemeys, ibid. 
 349. also 2 Atk. 493. 3 Atk. 98.
 
 SECT. I.] and their Jldemption. 261 
 
 It was objected in the last case, that, as the provision by settle- 
 ment was not the father's sole act, but was made with the concur- 
 rence of D. his eldest son, it was not a case in which the presump- 
 tion against double portions could apply. To this Sir W. Grant 
 answered, that the probability, independently of extrinsic evidence 
 (which had been given,) was, that it was the father who bargained 
 for the charge in favour of his younger son, a fact clearly shown by 
 the evidence, which proved that he had made it a condition of his 
 concurrence in the settlement ; whence the father was in effect the 
 sole author of both provisions ; for he, by concurring in the settle- 
 ment, (which he was not bound to do,) and giving up his life-interest 
 in a part of the estate, and subjecting other part of it to an annuity, 
 which might fall upon it during his life, became a purchaser of the 
 second provision, which made the case the same as if it came directly 
 out of his own estate. His Honour th^us concluded : "Excluding, then, 
 all declaration of actual intention (the admissibility of which he 
 doubted,) the presumptive intention is a substitution of 35001. pro- 
 vided by the father's means for the younger son, in the room of the- 
 very sum, given by the will." 
 
 Seeing, then, that courts of equity so much incline against 
 double portions, when proceeding from a parent to his legitimate 
 children, in discharge of his moral obligation to provide for them, 
 as to hold that the first should be adeemed by the second, in dis- 
 regard to slight differences between them ; it is proposed to con- 
 sider : 
 
 2. When the difference between the provisions are so large or im- 
 portant as to repel the artificial presumption of the latter being in 
 substitution of the former, and to entitle the children to their testa- 
 mentary portions, notwithstanding advancements made to them by 
 their parents on marriage. 
 
 The artificial doctrine of the Court, before stated, in regard to 
 presumptive ademption, has met with severe reproof from modern 
 Judges, as tending to defeat the intention of parents. In establish- 
 ing the practice upon this subject, the Court appears to have paid 
 respect to the civil law.. The reasons, however, assigned in support 
 of the equitable doctrine are unsatisfactory, for when a father is dis- 
 posing of his property by testament, he does so with a view to the 
 period of his death ; but when -he disposes of it by present gift, he 
 does so with regard to his life, so that he may with propriety be al- 
 lowed to be more liberal in the one case than in the other, and to in- 
 tend a farther bounty to the person advanced, when his, the. donor's, 
 life shall determine, unless he expresses the contrary. 
 
 One exception to presumptive ademption is where the testa- 
 mentary portion, and subsequent advancement are non ejusdem 
 generis. 
 
 A case of this kind occurred in Holmes v. Holmes,(t) where A. in 
 the year 1771, bequeathed to-his son 500/., and 4000Z. to his four 
 unmarried daughters. In 1779 A. took his son into partnership ; 
 the stock was to be 3000Z. to be advanced in equal proportions, 
 and to the profits of which they were to be equally entitled. The 
 
 (0 1 Bro. C. C. 555. 
 VOL. I. L 1
 
 262 General Legacies, [Cn. VI. 
 
 whole capital was brought in by A., and it was understood by the 
 familv, and admitted by the other children, that A. meant to give 
 lim son half of the stock. There was also parol evidence of his 
 drrhirations to that effect. The question was, whether the advance- 
 mint of a moiety of the stock was an ademption of the legacy of 
 500J. And it was determined in the negative, as the two provisions 
 were nan ejusdem generis. 
 
 The result of the last case appears to be, that the Court consider- 
 ed A. as not meaning to anticipate the provision he had made for 
 his son by will in money, by advancing him with half of the stock in 
 trade, consisting of jewelry ; since it would be presuming too much 
 to infer that Jl. had the idea of a portion in his mind, when he ad- 
 vanced for his son articles of a different kind from the fortune he had 
 provided for him by will.(w) 
 
 A second exception occurs jvhen the subsequent advancement 
 depends upon a contingency, and the testamentary portion is certain. 
 Suppose, then, the portion given by will to be declared vested 
 upon the testator's death, and the portion afterwards settled upon 
 the legatee, to be made expectant upon some contingency after the 
 death of the parent ; the latter will not adeem the former ; for it 
 would be unreasonable to presume that the father intended to dis- 
 charge his natural obligation to make a certain provision for his child 
 at his decease, by an advancement which may possibly never take 
 effect. Accordingly Lord Hardwicke observed in his judgment in 
 Spinks v. Robinsfo) that " in the construction of double portions 
 it had always been of weight that they were both certain." 
 
 A third exception arises in instances where a legacy or advance- 
 ment is not merely given as a portion, but is expressed to be made 
 in lieu of or compensation for an interest to which the child was en- 
 titled ; and upon this principle, that it is not to be presumed that 
 the parent intended by such a bequest or advancement to perform 
 his moral obligation to his child, since such provision is not merely 
 for its maintenance or fortune, but in lieu of a benefit to which it was 
 entitled aliunde, so that the child, by accepting the legacy or ad- 
 vancement, stands in the situation of a purchaser, and not as a per- 
 son claiming under its parent's bounty. 
 
 Thus in Baugh v. Read,(y) A. the daughter of B., being entitled 
 under her grandfather's will to a sixth part of 10,0001. and to a like 
 share of QOOOl. under her father's settlement ; B. the father (amongst 
 other things) bequeathed to A. S114Z. Is. lid. bank stock for life, 
 remainder to her children and grandchildren ; but if she died without 
 leaving such issue, he gave the same to his other children equally. 
 The will recited the father's marriage settlement, and declared that 
 the provision made by it for A. and his other children were intended 
 in satisfaction of those they were entitled to under his settlement. 
 A. afterwards married C., on which occasion B. transferred 50001. 
 in stock to ASs husband absolutely, and it was stipulated in the 
 settlement of A. and B. that they in consideration of the 5000Z. 
 would transfer to B.- all ^.'s interest in the 10,OOOZ. under her grand- 
 father's will when she became entitled to it, and which was accor- 
 
 (u) 1 Bro. C. C. 427. (*) 2 Atk. 493.' and see Cromfiton v. Sale 2 P. Will. 553. 
 (y) I Ves. jun. 257.
 
 SECT. I.J and their Jldemption. 263 
 
 dingly done. The question was, whether the marriage portion given 
 with A., by her father, the testator, B., was an ademption of the 
 legacy of 81141. Is. lid. bequeathed to her by his will, and it was 
 determined in the negative. 
 
 It is observable in the last case, that the advancement by B. upon 
 the marriage of his daughter Jl. having been made not merely as a 
 portion, but with a view to the surrender by Jl. and her husband of 
 her interest under her grandfather's will, excluded the presumption 
 that her father B. intended also that it should go in satisfaction of 
 the legacy he had given her by his will ; which construction was 
 strengthened, if not wholly confirmed, by the consideration that the 
 legacy could not be considered as a pure bounty or portion, since it 
 was given as the purchase of *d. J s interest under BSs marriage set- 
 tlement. Such appear to have been the grounds of the deter- 
 mination. 
 
 A fourth exception to the general rule of presumptive advancement 
 appears to be when the bequest is of uncertain amount. It has there- 
 fore been determined more than once, that the devise of a residue or 
 of part of a residue to a child is not adeemed by a subsequent ad- 
 vancement upon the legatee's marriage. Such seems to be the 
 rule established by authorities, although Sir W. Grant, M. R., in 
 Bengough v. Walker, (z] intimated an opinion, which, if correct, 
 would subvert this rule; for he hinted that a residuary bequest 
 might probably be considered a satisfaction of a portion. If then 
 this be so, there is no reason why an advancement by the parent 
 might not be an ademption of such a legacy. But all the cases de- 
 cided upon this question, and not under special circumstances, ap- 
 pear to negative that opinion. In Farnham v. Phillips,(d) Lord 
 Hardwicke observed, there was no case where the devise had been 
 of a residue that was uncertain, and at the testator's death might be 
 more or less, in which the gift of a subsequent portion had been 
 held an ademption. So in JVatson v. The Earl of Lincoln,(b) his 
 Lordship said, " he was doubtful" (though the Court in Smith v. 
 Strangle) considered that his opinion was certain) " whether an ad- 
 vancement to Mrs. Watson on her marriage, by her father, was a 
 satisfaction of one-third part olhis personal estate previously given 
 to her by his will ; for as it was bequeathed by way of residue, he 
 could not mean it as a portion, since it was always changing, and 
 might be something, or might be nothing." And in Freemantk v. 
 Bankes,(d) Lord Rosslyn entertained the same ideas; observing, 
 " that the fallacy of the argument in favour of the advancement 
 being an ademption, was in considering the bequest of the residue 
 as a gift of a portion. It never could be so considered. The idea 
 of a portion was, ex m termini, a definite sum." With respect to the 
 cases, 
 
 In Farnham v. Phillips,(e] a freeman of London, having a wife 
 and six children, bequeathed to his wife her widow's chamber, and 
 the third of his estate which she was entitled to by the custom ; and 
 to his six children one-third, to which they were entitled by the 
 
 (z) 15 Ves. 513. (a) 2 Atk. 216. (b) Ambl. 327. (c) 4 Bro. C. C. 494. 
 (rf) 5 Ves. 85. see also Devese v. Pontet, 1 Cox's Ca. 188 and Pre. Ch. 240. in 
 notis S. C. (e) 2 Atk. 215. and see 4 Bro. C. C. 493. '
 
 264 General Legacies) [Cn. VI. 
 
 same custom ; and as to the remaining third, of which he had the 
 power of disposal, he directed a debt of 100J. to be paid out of it, 
 and the residue to be equally divided among his wife and children. 
 Upon a subsequent marriage of one of his daughters, the testator gave 
 her 1000/. called in her marriage articles her portion, or provision. 
 And the question being, whether the advancement adeemed the 
 daughter's testamentary share of the residue, Lord Hardwicke de- 
 termined in the negative. 
 
 A similar decision was made by Lord Rosslyn, in Freemantle v. 
 Bankes;(f) a case in which A. gave his residuary estate to trustees^ 
 in trust (after payment of debts, funeral and testamentary expenses, 
 and of a legacy he had given, and such legacies as he might give by 
 a codicil) for his four daughters, and any after-born children, as 
 mentioned in his will. One of the daughters afterwards married ; 
 upon which occasion A. agreed to give with her a portion, by the 
 transfer of so much stock (which was accordingly transferred) as 
 would produce her husband a net yearly income of 400/. ; the capi- 
 tal stock and interest to be settled upon husband and tvife, and their 
 children. The question was, whether the advancement of this por- 
 tion was an ademption of the daughter's share of her father's resi- 
 duary estate under the will "? And the Court determined it was not 
 satisfied, upon the principle before stated. 
 
 There was, however, a circumstance in the last case of considera- 
 ble importance, which was not attended to ; viz. that the advance- 
 ment only gave the legatee an interest for life, whereas by the will 
 she was entitled to a proportion of the residue absolutely. But had 
 not the decision been founded upon the bequest being residuary, it 
 is conceived that the other difference between the two provisions 
 would not have prevented an ademption according to the general 
 doctrine of courts of equity before stated ; the reasons for which will 
 appear in considering what is presumed to be a - 
 
 Fifth exception to the usual presumption in the ademption of por- 
 tions ; viz. that if the legacy to a child be absolute, and the advance- 
 ment be given to him only for life, and the capital to other persons, 
 the latter will not be a satisfaction gf the former ; and upon this 
 ground, that the father is not to be*presumed to have intended, in 
 making such a partial settlement on his child, to revoke the testa- 
 mentary disposition he had previously made as a portion, since the 
 advancement is of interest only, but the legacy of capital ; so that 
 the two provisions are non ejusdem generis. Besides, the contrary 
 presumption would have the effect of leaving the issue of the child, 
 if he had any, unprovided for ; at least, for any thing received by its 
 parent from its grandfather : and intention not to be imputed to a 
 father in the discharge of his moral obligation, in making a provi- 
 sion for his child.(g) But these remarks are inapplicable to cases 
 where, after the life-estate to the child, suppose a daughter, as in the 
 case of Freemantle v. Bankes, last stated, the money advanced is 
 ttled upon her children ; for it may be rationally presumed, that 
 the parent, m making the advancement, did so as a portion to his 
 daughter, which he was anxious to settle and preserve for her and 
 her children of the marriage ; so that his giving to her an interest 
 (/) 5 Ves. 79. ( ff ) See Alleyn v. Alleyn, 2 Ves. sen. 38.
 
 SECT. 11.3 and their Jldemptwn. 265 
 
 for life only is explained by the circumstances ; and such an ad- 
 vancement is in no wise inconsistent with an imputed intention that 
 the daughter should not have double portions. It is conceived, 
 therefore, that in those instances the advancements would be ademp- 
 tions of the testamentary provisions. (&) 
 
 Having considered what are and what are not ademptions of the 
 legacies of parents to their legitimate children by subsequent ad- 
 vancements, the next subject will be 
 
 SECT. II. The Ademption of Legacies by subsequent advance- 
 ments, when the legatees are considered STRANGERS to the 
 testator, and the legacies not as portions. 
 
 Persons are prima facie to be considered strangers to a testator in 
 relation to the present subject, who do not fall under the description 
 of his legitimate children. But although such be the general rule, 
 still a testator may have placed himself in loco parentis to indivi- 
 duals who do not naturally or judicially stand in the relation of chil- 
 dren to him ; to which cases, what has been already said upon ademp- 
 tion of legacies as between parent and legitimate child, will be ap- 
 plicable. When a testator is to be judiciously considered as having 
 assumed the situation or office of a parent in providing for a lega- 
 tee, will be afterwards discussed. In the mean time we shall 
 
 First, proceed to consider the doctrine of ademption as applicable 
 to legacies given to strangers. 
 
 In Debeze v. Mann,(i) Lord Thurlow said, that " if a legacy be 
 given for a particular purpose, and the testator afterwards advances 
 money for the same purpose, it was too late to say it was not a pre- 
 sumption that he meant to execute it." A principle acknowledged 
 by Lord Manners, Chancellor of Ireland, to the following effect: 
 " Suppose (said he) A. bequeathed to his brother 5000Z. to buy a 
 house in Merrion-square ; and that after A. bought one, which he 
 gave to his brother; are there two houses to be boughtf'(fc) Ac- 
 cording to this reasoning, if a testator give a legacy of 100JL to C. 
 to place him as an apprentice, or to purchase furniture, and the tes- 
 tator after the date of his will advance lOOi. with C. as an appren- 
 tice fee, oY give him that sum to buy furniture; either of those acts 
 will be an ademption of the legacy. (/) 
 
 But it is requisite that the purposes of the legacy and advancement 
 should exactly correspond, otherwise the legacy will not be adeemed. 
 Suppose, then, the legacy to be given to A. " to fit her out for 
 India, or to dispose of her in marriage ;" and the testator, after the 
 marriage of A. with B. gave them 600Z., which was the case of De- 
 beze v.Mann;(m) Lord Thurlow decided, that the 600Z. was not an 
 advancement, but a general gift, being after marriage ; and that there 
 was no evidence nor presumption that the gift of 600J. to two mar- 
 ried persons was an execution of a testamentary gift; and that, there- 
 fore, the legacy was payable. 
 
 So also in Roome v. Roome,(n) B. directed his executors to place 
 
 Trimmer v. 
 
 Bayne, 7 Ves. 516. (k) 1 Ball. & Beat. 303. (/) Roseivell v. Bennett, 3 Atk. 77. 
 fm) 2 Brb. C. C. 165. and see Robinson v. Whitdey, 9 Ves, 577. 579. 
 (n) 3 Atk. 181.
 
 266 General Legacies, [Cn. VI. 
 
 1000?. at interest, and to apply the whole or such part of the interest 
 as they thought necessary for the support and education of his grand- 
 son C.', and further, to appropriate all or any part of the principal 
 and interest in binding him an apprentice, or for his advancement 
 in life, as they thought proper; the surplus, if any, to be paid to him' 
 at his age of twenty-one.. After this,!?, placed C. to a haberdasher, 
 and paid with him 1261. The question was, whether by that ad- 
 vancement the legacy was partially adeemed 9 And the Master of the 
 Rolls decided in the negative, for the following, amongst other rea- 
 sons; that the 1000Z. were not bequeathed for the sole purpose of 
 putting C. out as an apprentice, but for other purposes, viz. mainte- 
 nance, &c. 
 
 And since, in the construction of double portions, it has always 
 been considered requisite that both of them should be certain ;(o) 
 a fortiori the lily* construction must prevail when the testator stands 
 in the relation of a stranger to the legatee. 
 
 Accordingly, in Spinks v. Robins, ( p] .#., who lived several years 
 with Mrs. Robins previously to her death, bequeathed to the two 
 daughters of that lady 1000H. a-piece, to be paid at twenty-one, 
 with survivorship between them if either died under that age. Jl. 
 afterwards gave two bonds to B. andC. for 2000Z. each, provided they 
 married during his life with his consent, or in case they survived 
 him ; and Lord Harduricke determined that the legacies were not 
 adeemed by the bonds ; the legacies and subsequent gifts depending 
 upon different contingencies. 
 
 In instances where the bequest is general, and made by a stranger, 
 or other person than a parent, not having placed himself in. loco 
 parentis, and no intention legally appears, that a subsequent ad- 
 vancement was made with a view to adeem the legacy ; such ad- 
 vancement will not have that effect ; for since there is no such 
 obligation upon the testator to provide for the legatee, as subsists 
 between a parent and child, no inference arises that he intended by 
 the subsequent gift or advancement, to perform any such duty in 
 prasenti, which he had provided for by will after his death.(^) And 
 there is no reason why a person should not be entitled to as many 
 gifts as another chooses to bestow. Grand-children, brothers, sis- 
 ters, uncles, aunfe, nephews and nieces, are strangers to the testator 
 within the meaning of the present nile. Natural children, too, are 
 in the same situation ; for the law does not acknowledge their rela- 
 tion as the children of their putative father-,(r) a circumstance which 
 places them, in this instance, in a better condition than legitimate 
 children, since a mere advancement to them will not prima facie be 
 an ademption of a legacy given by their father. As then, natural 
 children are judicially considered in the character of strangers to 
 their parents, the distinction which will be noticed upon the subject 
 of ademption in ihis section, generally apply to them. We shall, 
 however, 
 
 FIRST consider the authorities where the bequest is made by col- 
 lateral relations, and strangers to the legatees. 
 
 In Shudal v. Jekyll,(s] A. the great uncle of B. and C. bequeath- 
 
 () Suflra, p. 262. (^ 2 Atk. 491. 
 
 (?) See exfiarte Dubost, 18 Ves. 153. (r) 18 Ves. 182. () 2 Atk. 516.
 
 SECT. II.] and their Jldemption. 267 
 
 ed to them, while their father was living, legacies of 1000/. a piece. 
 Previously to J?.'s marriage with D., A. in consideration of it, ad- 
 vanced to D. 500/. Lord Hardwicke was of opinion, that the ad- 
 vancement was not an ademption of the legacy, either wholly or in 
 part; because it was not a transaction between parent and child, 
 nor by a person who stood in loco parentis. 
 
 Similar to the last was the case of Powel v. Cleaver,(t] in which 
 B. devised 6000/. to his niece, C. her father being then living ;(M) 
 the GOOD/, was not expressed to be a portion. B. afterwards, upon 
 C.'s marriage, advanced to her 5000Z. ; that sum being called her 
 portion in the settlement made on the occasion. There were also 
 entries in B.'s books, from which it appeared that he made calcula- 
 tions of the sums he had advanced a* a poi'tion. The question was, 
 whether the advancement was a total or a partial ademption of the 
 legacy '1 And Lord Thurlow decided, that it was neither the one nor 
 the other, but that C. was entitled to the legacy. 
 
 His Lordship's judgment was founded on the principle, that the 
 case was not one of parent and child, nor of a person who had volun- 
 tarily assumed the relation of a father ; that the legacy was not given 
 as a portion but a bounty ; and that although the advancement was 
 called a portion, the term should not have the same import and con- 
 sequence in the instance of a stranger using it, as it would have if 
 adopted by a parent. 
 
 In the modern case of Wetherby v. Dixon,(x) A. gave a legacy 
 of lOOOi. to B. a stranger t<* the testator. A. at different times 
 afterwards, purchased 2400Z. three per cent, reduced bank annuities 
 in his own name ; but before his death he transferred them into the 
 joint names of himself and B. B. survived /2. ; and the question 
 was, whether by the transfer the legacy was adeemed'? And Sir 
 W. Grant, M. R. determined in the negative, upon the principle be- 
 fore stated. 
 
 So also in Roome v. Roome,(y) the Master of the Rolls considered 
 that a grandfather was in the same situation in regard to the present 
 rule as a collateral relation ; observing, that a father was obliged to 
 maintain his child, but that a grandfather was not obliged to main- 
 tain a grand-child; and that a father could appoint a testamentary 
 guardian of his child, which its grandfather could not do. 
 
 SECONDLY, With respect to natural chjldren. 
 
 Although it has been often attempted to place natural, upon an 
 equality with legitimate, children, the endeavour has as frequently 
 failed for the reason before stated. 
 
 Accordingly, in Grave v. Lord Salisbury, (z] (the first case before 
 Lord Thurlow,} Lord Salisbury having several natural children, to 
 whom he had given legacies, not so described, afterwards made pro- 
 vision for them in his lifetime, but not ejusdem generis, giving the 
 living of Hatfield to one, a farm and stock to another ; upon which 
 latter gift the question arose. It was contended to be an ademption, 
 upon the presumption arising from an advancement made by a pa- 
 
 (/) 2 Bro. C. C. 499. (M) This fact is to be inferred from the argument. 
 
 (~r) Coop. C. C. 279. (y) 3 Atk. 183. and see Lord Eldon's observations in 
 Perry v. IVIiitehead, 6 Ves. 546. 
 
 (z) Stated 18 Ves. 152, and 1 Bro. C. C. 425. and see infra, under the title 
 "Parol Evidence."
 
 268 General Legacies, [Cn. VI. 
 
 rent to his legitimate child, before considered. And Lord Thurlow 
 directed a Master to inquire into the circumstances, but the Master 
 made no report of the relation of the testator to the legatees ; and 
 his Lordship refused to send it back to him on that account, observ- 
 ing, that the object of Lord Salisbury might have been to conceal 
 that relation. The Court, therefore, without deciding what would 
 have been the result if that relation had appeared, considered it 
 sufficient that the case stood as one of a stranger, so that the gift 
 was not an ademption of the legacy. 
 
 But circumstances may form exceptions to the general rule as, 
 
 2. Where a testator takes upon himself the relation and duty of a 
 parent, which may not only happen when he is collaterally related, 
 or the putative father of the legatee, but where no relationship sub- 
 sists between them. When the testator's assumption of the office of 
 a parent is established, his legacy will be considered a portion, and 
 a subsequent advancement will be an ademption in all cases where 
 it would be so, if made by the natural parent, and which have been 
 before discussed. 
 
 The only difficulty is to ascertain, what are circumstances suffi- 
 cient to invest the testator with the assumed relation of parent to the 
 legatee, and the evidence competent to prove that he placed him- 
 self in such character. The uncertainty of what that evidence ought 
 to be, is confessed by Lord Eldon in ex parte Dubost,(a) where he 
 observes " whether it is to be written evidence in the will and set- 
 tlement, or the conduct observed at tfce marriage, or to be derived 
 from mere declarations, is left so much afloat, that there is considera- 
 ble difficulty in making a judicial decision upon it." 
 
 The test in those cases seems to be, whether the circumstances, 
 taken in the aggregate, amount to moral certainty that a testator 
 considered himself in the place of the child's father, and as mean- 
 ing to discharge that natural obligation which it was the duty of a 
 parent to perform, for that is the principle. The mere circumstance 
 of a provision made by a relation being so usual without any inten- 
 tion to interfere with the relative obligation between parent and child, 
 that no clear inference arises from such a provision that the testator 
 meant to substitute himself in loco parentis. 
 
 It seems a natural consequence from what has been observed, that 
 in questions upon this subject, it must be a material feature in each 
 case whether the father of the legatee be living or dead at the time 
 when the will was made. If living, it appears from the before men- 
 tioned cases ofShudal v. JekylL Powel v. Cleaver, Grave v. Salisbti- 
 ry, and Roome v. Roome, that the mere connexion of grandfather, or 
 collateral relation, or putative father to the legatee will of itself be 
 insufficient evidence of the testator's intention to place himself in 
 loco parentis, to the extent of incurring and paying the moral debt 
 contracted by the father of the child ; consequently a subsequent 
 advancement by such a testator will not come within the general 
 presumption of ademption as between parent and child. (6) And it 
 would seem from the observations in Roome v. Roome,(c) a case 
 
 (a) ISVes. 152. 
 
 (6) See Lord Eldon's observations in Perry v. Whitehead. 6 Ves. 548. 
 
 (c) 3 Atk. 181.
 
 SECT. II. 1 and their Ademption. 269 
 
 where the father of the legatee was dead when the will was made, 
 that such circumstance would not of itself be a sufficient manifesta- 
 tion of the testator's intention to place himself in the situation, and 
 to incur the obligation last mentioned. (d) 
 
 Upon the whole it may probably be considered that although the 
 legatee may have been advanced by the testator during his life, and 
 brought up by him, and who, in a sense, may be considered as stand- 
 ing in the relation of a father to the legatee ; yet if the natural fa- 
 ther be living, and he be described in the will as father of the lega- 
 tee, and the legacy is not expressly given as a portion, the testator 
 will not be considered as having by the bequest meant to perform 
 the father's -duty in providing for the child, but merely to give the 
 legacy as a bounty, so as not to be adeemed by a subsequent ad- 
 vancement, (e) 
 
 Thus in exparte Dubost,(f] A. having three natural daughters by 
 B. the wife of C., bequeathed to them nominatim, and as the daugh- 
 ters of C., 40001. a piece. He also gave to their supposed parents 
 unequal legacies. .#. afterwards, upon the marriage of D. one of the 
 daughters, advanced for her 3000Z. as a marriage portion, which, 
 from the settlement, appeared to have been received by her husband ; 
 and the question was, whether DSs legacy was adeemed by the ad- 
 vancement ?. And Lord Eldon decided in the negative, and said, 
 " recollecting how artificial the rules are, where a person, has edu- 
 cated a child through. life, considering himself as standing in relation 
 of putative father to that child, having a father" acknowledged, de- 
 scribing that child as the child of a mother named and a father nam- 
 ed, ami also making a provision for the father and mother ; it would 
 be too much upon such a will, to say, this is the case of a person, 
 meaning to pay, not what the Court calls a debt of nature, but a debt 
 he meant to contract, or in other words meaning to place himself 
 in loco parentis, in the situation of the person described as the law- 
 ful father of that child." 
 
 That a person may assume the relation and duty of parent, appears 
 from dicta in all or in the great majority of the cases; and Lord 
 Hardwicke has supposed an union of circumstances, which in his 
 opinion will be sufficient to place an individual in loco parentis. 
 " Suppose, (said -he) a female to be an orphan, and under the care of 
 a collateral relation, who bequeaths to her a legacy, expressing it to 
 be for her portion, and afterwards makes provision for her in his life- 
 time; I should be inclined to think that, this would be ademption.'^g 1 ) 
 
 Three things are observable in. the case supposed, viz. that the 
 child should be an orphan, (a circumstance which distinguishes it 
 from ex parte Dtibost before stated ;) that it should be under the care 
 of the testator, and that .the_ testamentary gift should be expressed in 
 the will as a portion. Hence it may be inferred to have been Lord 
 Hardwicke's opinion, that parol evidence was admissible to show the 
 relation, real or assumed, between the testator and legatee; but that 
 it was not admissible, in the first instance, to prove that the legacy, 
 appearing on the face, of the will as a bounty, was intended by the 
 testator as a portion.. For the admission of parol evidence in the 
 
 (d) See also Sfiinks v. Robins, 1 Atk. 491. stated sufira. p. 266. 
 (0 18 Ves. 154. (/) Ibid. 140. (} 2 Atk. 518. 
 
 VOL. i. Mm
 
 General Legacies, [Cn, VI. 
 
 latter case would,. in violation of the statute of frauds, have the effect 
 of altering or defeating the written instrument; first, by raising a 
 presumption that the testator intende'd to place himself in loco pa- 
 rentis when lie made his will, and then, consequently, by bringing into 
 operation the before mentioned rule respecting ademption as in the 
 case of parent and child. 
 
 In Monck v^ Monck,(h) we are supplied with a decision, founded 
 upon the construction of instruments-, or in other words upon written 
 evidence ; pronouncing that a brother had clearly shown at the date 
 of his will, an intention to assume the character of a father to his 
 legatee ; and to perfom the debt or duty which was owing by the 
 natural parent. In that case A. recited in his will, that he had, upon 
 the marriage of his brother .?. given a bond for 5000/. to the uses of 
 B's marriage settlement, and as a provision for him. A. then be- 
 queathed to his brother C. the like sum of 5000Z. directing his trus- 
 tees to pay the interest' to (7. for life ; and in case of his marriage, 
 A. empowered him to settle part of the interest to the annual amount 
 of 150/. as a jointure upon his wife ; and bequeathed the capital to 
 the issue of the marriage ; on failure of whom the 5000Z. was to lapse 
 into A?s real estates, for the benefit of his eldest son. After the 
 date of this will, C. married ; and upon that occasion A. gave a bond 
 for 4000Z. to the trustees in C.'s settlement ; the interest of which 
 sum was limited to C. for life, then to his- wife for life; and the capi- 
 tal was to be divided amongst the issue of the marriage as C. should 
 appoint ; but if there were no issue, who should become entitled to 
 the 4000Z., the money was to be assigned to A. his executors, &c. 
 who had, before the present transaction-, and after the will was made, 
 advanced 1000Z. to C. to enable him to purchase a house. The ques- 
 tion was, whether these advancements were an ademption of the 
 legacy of 5000L 1 ? And to prove that they were, parol evidence by 
 ASs relatives was offered and admitted. Lord Manners, Ch. decid- 
 ed that the legacy was adeemed; and for this reason, that it clearly 
 appeared from the will and settlement, that #. intended, and had 
 placed himself in loco parentis to his brother C. whence arose. the 
 presumption against double portions which subsists between parent 
 and child ; and the presumption being so raised, parol evidence to 
 confirm it was admissible. 
 
 The last is a very strong case, to show that the testamentary pro- 
 vision by the brother was intended as a portion for C. The will so 
 states the fact; and it appears from the contents that A. adopted his 
 two brothers into his family, and provided for them in the same man- 
 ner and to the same amount(ij as for his own children. So that if 
 an advancement to his child would be a presumptive ademption of 
 its legacy or portion, for the same reason, an advancement to the 
 brother must be attended with the like consequences. 
 
 .3 and 4. But it remains to be considered how far parol evidence 
 may be adduced, to show that a testator intended to substitute him- 
 self in loco parentis, when that intention cannot be ascertained upon 
 the face of the will. And as the principles for admitting parol evi- 
 dence in that case equally apply to its admissibility. when offered to 
 
 (A) 1 Ball & Beat. Ca. in Eq. in Ireland, 298. and see Trimmer v. Bayne, 
 7 Ves. 508. (:) 1 Ball. & Beat 304.
 
 SECT. II.] and their Ademption. 271 
 
 prove the intention of a (stranger) to adeem, by advancement, a 
 legacy he had previously given ; both subjects are necessarily blend- 
 ed in the present consideration. 
 
 When the uncertainty and perplexity which obscure these two 
 subjects, and Lord Eldorfs observations relative to the former of them 
 are considered, due allowance, it is hoped, will be made for the dif- 
 ficulty of attempting to present the reader with a satisfactory view of 
 the rules, which regulate the admission of parol evidence in the in- 
 stances before, us, together with a concise arrangement of the cases 
 in illustration of those rules: nor can it be expected that such an at- 
 tempt will be entirely successful, as the subject presents a labyrinth 
 of discordant cases and opposing diQta. The only clue towards a 
 satisfactory termination of the inquiry, must be an examination of 
 each case and dictum, by the test of those principles, upon which the 
 admissibility of parol evidence iu general, has been admitted. 
 
 In early times, parol evidence was admitted in relation to written 
 instruments with great jealousy. Lord Talbot is an authority for 
 the assertion, that previous to the year 1734, none of the cases had 
 gone further in the admission of this kind of evidence, .than to rebut 
 an equity or a resulting trust ; instances in which the parol testi- 
 mony tended to support the intention of a testator, consistently 
 with his written will. (A;) Under this class of cases, may be placed 
 those authorities, where' an executor has a legacy given to him, and 
 the residue is undisposed of. Here a court of equity interferes, 
 upon a presumed intention, that the testator, in giving a part of his 
 personal estate to the executor, who at law is entitled to the whole, 
 meant -him to take no more than the specific share ; consequently, 
 the Court converts him into a trustee for the next of kin. This doc- 
 trine of equity, it must be remarked, is founded upon presumption, 
 not raised by parol, but. upon the testator's will, viz. the legacy 
 therein given, and whence the above presumption springs ; being a 
 presumption, it may be repelled by parol evidence, and consequently 
 confirmed by it. 'This is established by a variety, of cases, from that 
 of Lady Granvill y. The Duchess of Beaufort,(l) to the case of 
 Langham v. Sanford;(m) but such evidence is inadmissible without 
 the prior gift of a legacy, or an inference to the exclusion of the 
 executor, collected from the contents of the will ;(w) for the holding 
 of the contrary j would be not to rebut, but to raise an equity by 
 parol, in contradiction to the legal import of the will. 
 
 Another class of cases upon the present subject is, where there 
 is no error or ambiguity patent upon the face of the will, but there 
 happens to be a latent doubt or mistake discovering itself, when the 
 words of the will are attempted to be applied, to the person descri- 
 bed, or to the subject given. In those instances parol evidence is 
 admitted to ascertain the person and the subject of the bequest. 
 The former was done in Beaumont v. Fell,(o) where the legatee was 
 described as Catharine Earnley instead of Gertrude Yardley; ade- 
 
 () Forrest, 242. (/) 2. Vem. 648. 
 
 (m)' 17 Ves. 435.. 2 Meriv. 6. see also Lynn v. Beaver, 1 Turner, 68. per Lord 
 Eldon ; also, chap. xxiv. 
 
 () Osborne v. Villiers, 2 New Abr. 426. and see 2 Meriv, 17. and White v.* 
 Williams, 3 Ves. and Bea. 73. 
 
 (o) 2 P. Will. 140.
 
 272 General Legacies, [Cn. VI. 
 
 termination, the principle of which has been ever since acted upon 
 in a variety of instances. (/>) 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 
 
 (<?) 7 Ves. 520. (/") Per Lord Thurloio'm Ellison v, Cookson, 1 Ves. jun. 111. 
 (') 2 Atk. 516. (//) Suflra, p. 277. and 2 Bro. C. C. 165. 
 (j) 1 Ves. jun. 109. and more fully stated infra.
 
 280 General Legacies, [Cn. VI. 
 
 conduct, that he considered the gift by will as a subsisting benefit, 
 notwithstanding the advance. Hence conjecture or probability that 
 he meant the legacy to continue after the advancement, will be insuf- 
 ficient ; so that, if the evidence amount to no higher degree of cer- 
 tainty, the presumption that the advance was meant in ademption of 
 the legacy will not be repelled. Suppose, then, the legatee to be 
 entitled to several provisions, as a portion, by the will, and the parol 
 evidence produced to- repel the presumptive ademption of them does 
 not clearly show, whether the father by his subsequent advancement 
 intended that the whole, or which of his testamentary provisions 
 should continue to subsist ; the general presumption, adeeming the 
 portion by the subsequent advance, will prevail. 
 
 Accordingly in Ellison v. Cookson, first determined by Lord Ken- 
 yon,(k) and secondly, by Lord Thurlow,(l) Jl. the father, bequeath- 
 ed the residue of his fortune to his wife, charging her with the edu- 
 cation of his children, and empcnvering her to provide for them at 
 her discretion. After the execution of the will, he wrote upon the 
 paper which contained his testament, instructions for her, by which 
 he appointed 5000/. to each of his two unmarried daughters ; and 
 with regard to the surplus and the savings of his wife, he directed 
 the first to be applied to the purposes before mentioned, and he or- 
 dered the second to be disposed of by her among such of his chil- 
 dren as she thought proper. After this, Jl. advanced with his daugh- 
 ter 5000Z. upon her marriage ; and the question being, whether the 
 testamentary portion of the like amount was adeemed by the ad- 
 vancement in consequence of the established presumption ; parol 
 evidence was offered of Jl.'s intention, that the portion by will should 
 continue notwithstanding the advance. The evidence consisted of 
 a conversation with B. (the brother-in-law of the intended husband, 
 and agent of the husband's father,) and of letters which passed be- 
 tween them before the marriage; and it appeared from the former 
 that A. agreed to give his daughter 50001. as a portion, and said that 
 she should have something considerably more 'at his death, equal or 
 nearly equal to what he intended for her as a portion. Now, as the 
 reference was made to .#.'$ will generally, it would have entitled the 
 daughter to all the benefit it contained in her favour ;(m) but in an- 
 swer to a letter from B. signifying the acquiescence of the intended 
 husband in ASs proposal in the verbal conversation before detailed, 
 ft. explained what he meant by the expressions he had used, and 
 which he stated to have been misunderstood. The effect of which 
 explanation the Court considered to import, that A. meant no more 
 than that the advancement should be in addition to what his daugh- 
 ter might probably or possibly derive from her mother's appointment 
 under the authority of his will, if the mother survived him ; thus re- 
 stricting the generality of the conversation to this particular contin- 
 gent benefit, and consequently leaving the advancement to operate 
 upon the testamentary portion of 50001. as if there had been no evi- 
 dence whatever. The decrees, therefore, were, that the latter sum 
 was adeemed by the advance of equal amount. 
 
 () 2 Bro. C. C. 307. 
 
 (0 1 Ves. jun. 100. 3 Bro. C. C. 61. S. C. and approved by Lord Eldon in 
 Trimmer v. Bayne, 7 Ves. 517. (m) Debeze v. Mann, 2 Bro. C. C. 165.
 
 SECT. II.] and their Jldemption. 281 
 
 So in Trimmer v. Bayne,(n) a legacy of 5000Z. was vested in trus- 
 tees as a portion, to pay the interest to his natural daughter B. till 
 her marriage, and on the happening of that event, to pay the capital 
 to her separate use. J2. afterwards, in December, 1794, and in con- 
 templation of B.'s marriage, agreed to advance to C. the intended 
 husband, 20001. in part of a portion with B, and to give a bond for 
 the further sum of 5000Z. which was accordingly executed, the inte- 
 rest whereof was to be paid by the trustees in the settlement to the 
 separate use of B. during the marriage, and afterwards to C. if he 
 survived B. ; and upon the death of the survivor, the principal was 
 to be divided among the children of the marriage according to the 
 appointment of A. The marriage took place ; and Jl. only paid to 
 C. 500Z. of the 20001. leaving the residue of. that sum, and the 5000Z. 
 upon his bond, owing at his death. The question was, whether the 
 legacy of 5000Z. was adeemed by the portion provided for B. upon 
 her marriage, it being admitted that as both provisions were made 
 for the same purpose, the former would be adeemed by the latter, 
 unless the presumption could be destroyed by evidence of a contra- 
 ry intention. In order, therefore, to entitle B. to the testamentary 
 portion, parol evidence was produced and admitted, consisting of the 
 depositions of one Mrs. Brown (a person having no interest in the 
 affair, nor employed by any of the parties) of what passed in conver- 
 sation between her and A. three, months before the settlement was 
 made ; the substance of which was, that A. upon her inquiries as to 
 the portion he meant to give B. said 5000Z. ; and being pressed to 
 increase the sum, he answered, " she is in my will," intimating when 
 desired to give the whole immediately, that he was only worth 10,OOOZ. 
 Lord Eldon determined that the evidence was insufficient to rebut 
 the presumption of an intent to adeem, which prevailed in those 
 cases. And his Lordship, after showing the little weight to be placed 
 in such testimony from the clear intention of the testator to disap- 
 point and mislead the officious curiosity of the witness, in giving her 
 false information, as was proved by the will and settlement, both in 
 regard to the amount of his fortune and his ready money advance, 
 decided the question upon the unanswerable principle, that evi- 
 dence (admitting it to be true and free from the objection last men- 
 tioned) of what a person meant to do three months before the execu- 
 tion of the settlement, was very deficient and unsatisfactory evi- 
 dence of his intention, when that deed was completed ; for, said his 
 Lordship, " it does not necessarily follow, if..#. in August meant to 
 advance 50001. and leave a demand under his will, that he intended 
 in December to advance 20001. in money, and agree to advance 
 50001. and then to leave B. her chance under the will."(o) Lord 
 Eldon concluded a very able judgment in declaring that, upon the 
 whole, the evidence was not so connected with the settlement in 
 December 1794, as to destroy the effect of that act, operating as an 
 ademption of the legacy ; and that it would be extremely dangerous 
 to say that such evidence was sufficient to prevent the attaching of 
 clear settled rule of law, if it were not clear and satisfactory to that 
 point, and to which it must be in order to rebut the presumption 
 according to that rule, arising out of the effect of the settlement. 
 
 (rc) 7 Ves. 508. (o) 7 Ves. 621.
 
 282 General Legacies ,-fyc. [Cn. VI. 
 
 The last case suggests the remark, that the peculiar circumstances 
 which induced the testator to express himself to the witness Brown, 
 as before mentioned, prevented his declaration that his daughter 
 \\.is in his will," having the effect of repelling the presumptive 
 ademption, and which, as we have seen, would otherwise be the con- 
 sequence of such and similar expressions. 
 
 It remains to consider, 
 
 6. The different degrees of importance to be attached to parol 
 evidence in respect of the periods when the verbal declarations were 
 made, and the situation of the witness to whom the testator express- 
 ed his sentiments. 
 
 These points were alluded to by Lord Eldon, in the last case, who 
 seems to have been of opinion, that, although' it did not appear that 
 the witness Brmvn was employed as an agent, or related to any of 
 the parties, or in the slightest decree interested in the affair, her 
 evidence of what the testator declared was admissible ; and his 
 Lordship observed, that a testator's declarations were evidence, 
 whether consisting of conversations with people in no wise con- 
 cerned in it, or with persons making impertinent inquiries and draw- 
 ing from him angry answers, or in whatever form the declarations 
 were made. But his Lordship remarked, that such declarations were 
 entitled to very different weight arid credit in relation to the time 
 when, and the circumstances under which they were uttered. Accor- 
 dingly in Debeze v. Mann(p) before stated,(</) the conversation of 
 the two fathers upon the subject of the very contract between two 
 persons under parental obligations to provide rationally for the in- 
 terests of their children, is entitled to much more consideration 
 than some others. The like observation applies to the case of Elli- 
 son v. Cookson,(r) before also, stated, (s) the witness being an 
 authorized agent in the treaty, and deposing to declarations between 
 himself and the principal in settling the terms of the marriage con- 
 tract.^) 
 
 Upon the whole the' law may be considered to be thus settled: 
 First, that declarations made by the testator to any person, whether 
 concerned in the business of the advance or. not, are admissible in 
 evidence. Secondly, that declarations of the testator, at the time of 
 his making and settling the advancement, are of more consequence 
 that his expressions afterwards; since the former are reasonably to 
 be presumed as truly explanatory of what was his real intention at 
 the time of pronouncing them, in regard to the transaction in a 
 course of immediate execution ; and that, therefore, if it be by any 
 medium of proof sufficiently ascertained what the actual intention 
 was at the time of advancement, it is immaterial what, for any par- 
 ticular reason, the donor may have thought proper at a subsequent 
 period to declare his intention to have been.(w) And thirdly, that 
 declarations after the advance and settlement of what the testator 
 had done, are entitled to more credit than those made previously to 
 the transaction, as to what he intended to do ; for that intention may 
 have been changed in the interval, or, as in Trimmer v. Bayne,(x) 
 
 (/O 2 Bro. C. C. 165. (?) Supra, p. 277. (r) 1 Ves. jun. 100. 
 
 () Supra, p, 279. (0 See 7 Yes. 272. 
 
 (w) 17 Ves. 453. 2 Meriv. 23. (.r) Supra, p. 281.
 
 SECT. II.] General Legacies. 283 
 
 they may have been made with a view of misrepresenting what 
 the testator meant to do, and what his actual intentions were 
 in relation to the advance. Hence, in the case last named, the 
 declarations of the testator, made three months before the advance-, 
 ment, were not allowed to counteract the effect of that act, viz. 
 the presumed ademption ; and in Langham v. Sandford,(y) little 
 importance was attached to what the testator declared after the date 
 of his will. 
 
 CHAPTER VII. 
 
 General Legacies and their Abatement. The Equity of Lega- 
 tees to follow the Jlssets. And the Refunding of Legacies. 
 
 SECT. I. Of the abatement of General Legacies. 
 
 1. What legacies to abate. 
 
 2. Heir's liability in respect of lapsed interests in lands 
 
 accruing to him. 
 
 3. As to claims of particular general .legatees to a pri- 
 ority of payment to others, so as to be exempt from 
 abating ; considering 
 1. Legacies given as mere bounties. 
 2. Effect of a testator's declarations ; and of his in- 
 tentions otherwise shown to give a preference ; and 
 3. When a legacy is founded upon a valuable con- 
 sideration. 
 4. Of the abatement of general legacies of stock. 
 
 SECT. II. Rights of Legatees to follow the assets when dis- 
 posed of by the executor and the produce wasted. 
 1. Power of executors to sell and pledge the estate. 
 2. Exceptions to that power ; and, 
 3. Effect of acquiescence upon the right of legatees to 
 follow the assets. 
 
 SECT. III. Of the refunding of Legacies. 
 1 . At the suit of executors. 
 2. At the suit of creditors ; and, 
 3. At the^uit of unsatisfied legatees. 
 4. As to interest payable on the sum refunded. 
 
 CONNECTED with the ademption of general legacies (the subject 
 treated of in the last chapter) is the abatement of them. The one is 
 the performance of the bequest by the testator himself, instead of 
 leaving it to be executed by his executors ; and the other is occasion- 
 ed by a deficiency in the assets to pay all the testator's obligations 
 and testamentary dispositions. The abatement of specific legacies 
 has already been discussed,() and what remains further to be con- 
 sidered under the head of contribution is : 
 
 (y) 17 Ves. 4.35. 2 Meriv. 23. (a) Chap. V.
 
 284 General Legacies, [Cn. VII. 
 
 SECT. I. The Abatement of Legacies that are general. 
 1. With respect to the arrangement among the legatees. 
 
 While any of the assets not specifically bequeathed remain, such 
 as are specifically bequeathed are not to be applied in payment of 
 debts, although to the complete disappointment of the general lega- 
 cies ; and specific legacies and legacies in their nature specific, i. e. 
 specific in consequence of the appropriation of a fund by the testa- 
 tor for their payment, will not be under the necessity of abating 
 with the general legacies for the reasons mentioned in preceding 
 parts of this treatise.(ft) But if the fund provided for the discharge 
 of the legacies in their nature specific fail, or be deficient, they are 
 nevertheless so far general legacies as to entitle the persons to whom 
 they are given to call upon the general legatees proportionally to 
 contribute towards the loss or deficiency, as was shown in the fifth 
 chapter, for the rule is general, that if the assets prove insufficient 
 to pay all the debts and legacies, the general legatees must abate 
 proportionally inter se, and not only in respect of debts, but in pay- 
 ment of costs, when a suit has been instituted. (c) 
 
 But a residuary legatee has no right to call upon particular lega- 
 tees to abate. The whole personal estate not specifically bequeath- 
 ed, must be exhausted before those legatees can be obliged to con- 
 tribute any thing out of their bequests. The principle is this, that the 
 testator only intended for the residuary legatee that, which (if any 
 thing) should remain after all the trusts of the will were performed. 
 
 It is to be remarked, that Lord Cowper, in Dyose v. Dyose,(d) 
 made a decree contradictory to the above observations. In that 
 case the testator was possessed of 20,0001. which consisted of a few 
 items, viz. East India stock, bank stock, and money in the funds ; 
 and he gave 30001. a piece to his two youngest sons, and the surplus 
 to his eldest son, appointing his wife executrix, who married B. ; B. 
 wasted the estate and went abroad ; and there being a deficiency of 
 assets from that cause, the question was, whether the eldest son was 
 entitled to any thing until all the debts and legacies were paid 9 for 
 if he were, then his brothers would be obliged to abate proportion- 
 ally with him. And Lord Cowper, C. was of opinion that the son 
 was to be considered a legatee for the value of what would have 
 been the surplus, after payment of the debts and legacies, if there 
 had been no waste of assets, upon the ground of the testator's know- 
 ledge of the amount of his property when he made his will, inferred 
 from the few particulars of which it consisted, and of his presumed 
 intention to give the residue as a particular bequest to the son. 
 
 The principle and authority, however, of the last case was, with 
 great propriety, questioned by Lord Thurlow in Fonnereau v. 
 Poyntz,(e) who expressed himself to the following effect : 
 
 " As to the case of Dyose v. Dyose, there was no ambiguity, either 
 latent and patent ; there was a legacy of 3000Z. a piece given to the 
 youngest sons, the residue to the eldest, and the question was, 
 whether the residuary legatee should have any thing or nothing ; 
 which, if not mixed with the affair of the executrix having wasted 
 the assets of the testator, is a simple question, whether a testator 
 
 () Chap. Ill, and V, (c) Barton v. Cooke, 5 Ves. 464. also see 4 Bro. C.C. 350. 
 (rf) 1 P. Will. 305. (c) \ Bro. C. C. 478. see also Pre. Ch. 401.
 
 SECT. I.] and their Abatement. 285 
 
 giving a larger legacy than he is worth, and the residue to another, 
 there could be a residue 1 ? I cannot agree to the law of that case, 
 for in such an instance,' if the testator did not leave a residue beyond 
 the value of the legacies, the residuary legatee takes nothing. So 
 where the pecuniary legatees abate inter se the residuary legatee 
 takes nothing; and the law of the Court is, that the intention of a 
 testator in making a specific bequest, or giving a pecuniary legacy, 
 cannot be controlled by the statement of his fortune. "(/) 
 
 2. A question may arise between the heir or devisee of real estate 
 and legatees, as to the obligation of the latter to abate where the 
 lands are liable to the legacies, some of which happen to lapse by 
 the deaths of legatees, or are void by being given to charitable uses, 
 and the estate is sufficient to pay all the legacies that are subsisting 
 and well given, but deficient, if the heir or devisee be entkled to so 
 much of the lands, or their produce, as is of the value of the lapsed 
 interests or of the void bequests. Upon the case of lapse, Lord 
 Eldon expresed himself in thess words: "If a man devise his real 
 estate in trust to pay to several persons WOOL each, and any of 
 them die during his life, in the event of a deficiency, the others must 
 abate. But if the devise be in trust to pay his debts and legacies, 
 and he give several legacies, and a legatee die, the fund (i. e. the 
 whole real estate) is a trust for the benefit of all the other legatees, 
 if necessary. "(g) And upon the other case of void legacies, (as 
 when given to charities and payable out of land,) his Lordship con- 
 sidered that there was no difference between it and the former; and 
 so he decided in the case of Currie v. Pye,(h) which was to the fol- 
 lowing effect : 
 
 #. devised her real and personal estates to trustees, upon trust 
 to sell the real, and 'to pay her debts out of the proceeds from the 
 sale, and of her personal property, and also to pay the annuity therein 
 given, and all other annuities- and legacies which she might give by 
 codocil or memoranda written or signed by her, and the surplus ot 
 both funds was to be applied according to her appointment to be 
 expressed in a "similar manner. A. afterwards, by written memo- 
 randa, which were proved with the will, gave several legacies to 
 charities, "which, being void, the question was, whether the propor- 
 tion of the fund, produced by the real estate that would- have been 
 applied in payment of the legacies, to charity, had they been valid, 
 should go to the heir or supply the deficiency of assets for the other 
 legacies ? And Lord Eldon- determined in favor of the legatees, 
 upon the principle, that A. having converted all her real and per- 
 sonal property into an aggregate fund (the whole liable to every 
 legacy) had made the produce of her real estate, where it was not 
 well disposed of, liable to all legacies, well given; as by the general 
 law, personal estate, forming an interest in land, is liable to all 
 legacies except those given to a charity. 
 
 A case, may occur different from a charge of particular legacies 
 upon the real estate, and form an express trust for its application 
 in discharge of debts and legacies. As when the whole real pro- 
 perty, after being charged with debts and legacies, is together with 
 
 (/) See further on this subject ante, p. 222. et seq. 
 () irVes. 466. (A) Ibid. 462. . 
 
 VOL. I. O O
 
 286 General Legacies, [Cn. VII. 
 
 the personal estate, devised to B. and C. as tenants in common : if 
 
 B. die before the testator, half of the real fund will lapse to the tes- 
 tator's heir, and half of the personal residue Will result to the testa- 
 tpr's next of kin. But in case of a deficiency of assets, a question 
 arises, how the real estate is to be applied "? 
 
 Attending to the interests of the heir, and C. the surviving residua- 
 ry devisee, if the personal fund were more than sufficient to answer 
 all the demands ; what remained of it, after satisfaction of the debts 
 and legacies, would belong to C. and the testator's next of kin, and 
 the whole of the real estate would be divisible between the heir and 
 
 C. But in the case supposed, of a deficiency of the personal fund, it is 
 presumed, that the heir and C. must abate pro rata; for the charge 
 upon the real estate of debts and legacies being general, and a trust 
 in equity, and still subsisting notwithstanding the death ofB.; the 
 heir cannot be in a better situation than B. who must have contri- 
 buted with C. proportionally, had he survived the testator. B. and 
 C. could only have taken the surplus of the real estate, after the 
 charges upon it were satisfied ; and the substitution of the testator's 
 heir in the place of B. cannot, it is conceived, impart to the heir any 
 other interest or privilege than what B. would have been entitled 
 to, had he been living. 
 
 3. We shall next consider the claims of some legatees to a pre- 
 ference in payment to others, so as to be exempt from abatement. 
 
 The following appears to be the tests by which all those claims 
 are to be tried and determined. 
 
 FIRST. Whether the legacy be general or specific, or in its nature 
 specific *? for, if it be of the latter kind, it is not liable to abate with 
 general legacie's. But, 
 
 SECONDLY. Suppose it to be a general legacy, then in order to 
 ascertain the necessity of its abating with other general legacies, 
 three points must be settled : 
 
 1. Whether the legacy be a mere bounty'? And if so, then 
 
 2. Whether the testator has shown from the contents of his will, 
 a clear intention, (though not actually expressed in words) that the 
 legacy should have a priority of payment to his other legacies *? or 
 if not , 
 
 3. Whether there be any valuable consideration for the testamen- 
 tary gift ? 
 
 The necessity of the above inquiries, appears from the conse- 
 quences which may result from them ; for if the legacy be a mere 
 bounty, it must abate upon a deficiency of assets, and it is of no im- 
 portance who are the the objects or what are the purposes to which 
 it is given. But if the testator distinctly manifest, upon the face of 
 his will, an. intention that the legacy should be first satisfied, that 
 intention will give it a preference, and an exemption from abating 
 with the others. And so it will be, if there be a consideration for 
 the bequest ; for since the legacy is founded upon a basis wholly 
 different from voluntary dispositions, it will be entitled to a prece- 
 dency in payment to those bequests, and consequently, to the pri- 
 vilege of being exempt from contribution with them to pay debts. 
 With a view to perspicuity j we shall consider the above subjects 
 in their order,
 
 SECT. I.] and their Abatement, 287 
 
 FIRST. Whether the legacy be general or specific, or in its na- 
 ture specific, is a question of great nicety ; but as an attempt has 
 been made in the third chapter, to show what bequests are general, 
 and what specific, or in their nature specific, the reader is referred 
 to that chapter. It will be sufficient in this place, to remind him 
 that whether a legacy be specific, or in its nature, only specific, it will 
 not be made to abate with general legacies. Supposing then, in 
 the SECOND place, that the legacy is general, we proceed to consider, 
 
 1. When the bequest operates as mere bounty. 
 
 It has occurred, that legacies merely voluntary and general, have 
 notwithstanding the rule of abatement prevailing in the equitable 
 administration of assets, been claimed in full, and the persons to 
 whom they were given, have resisted a contribution with other gen- 
 eral legatees in discharge of debts, when the assets were deficient 
 to pay them and the legacies in toto, upon the principle either of a 
 presumed intention of the testator to give them a preference of pay- 
 ment from their relation to him, or under particular circumstances 
 from which they considered themselves to be more especial objects 
 of his favour and predilection ; or when a like inference was thought 
 to arise from the purposes to which the legacies were directed to be 
 applied. But it will appear in the sequel, that such legatees have 
 generally failed in their claims ; for, since they were mere volun- 
 teers, and the bequests general, a court of equity has said, there 
 was no reason why they should be placed in a different situation 
 from other general legatees. 
 
 In conformity with these observations, we find, that servants have 
 insisted that general legacies given to them ought to be preferred 
 to similar bequests made to other persons, and should, therefore, be 
 privileged from abating such claims, however, have not been attended 
 with success. 
 
 Thus, in The Attorney General v. Robbins,(i) legacies of 51. a 
 piece were given to the testator's servants ; and although the exec- 
 utors had paid them in full, yet the assets being insufficient to an- 
 swer all demands upon them, the Master of the Rolls refused to in- 
 fringe upon the rule applying to abatement, vrz. that these legacies 
 being general- and voluntary, should abate with the other general 
 legatees ; and the Court observed, that were it to break in uppn 
 the rule in this instance, it would be impossible to discover the 
 point where to stop. 
 
 So also in Alton v. Medlicot^k) General Pepper bequeathed fo 
 A. 140Z. out of his personal estate to purchase an a'nnuity for life, if 
 she continued in his service, with a direction to his executor to ad- 
 vantfe a further sum if the former were insufficient for the purpose. 
 Upon a deficiency of assets, Sir Joseph JekylL M. R. -ordered that 
 the annuity should abate upon the 140/. 
 
 Tha-t the objects of a legacy, where it is general and voluntary, 
 will not give it a preference to the .other legacies, appears from this 
 circumstance ; that bequests to charities are not privileged from 
 abating with general legacies. The civil law gave a preference to 
 pious and charitable dispositions over all others, but the law of Eng- 
 land has not adopted that code in this instance. It considers such 
 
 (0 2 P. Will. 25. () Cited 2 Ves. sen. 417. and see chap. III. sect. 4. subdiv. 2.
 
 288 General Legacies) [Cn. VII. 
 
 bequests in the same view as others, and not more particularly fa- 
 voured than the rest ; hence, whether a general legacy be left to a 
 hospital or to p<?or relations, it must contribute and abate with other 
 general legacies upon a deficiency of assets, as settled by the au- 
 thorities referred to in the note.(J). 
 
 Executors have sometimes claimed legacies, given to them, in full, 
 as not falling within the rule applicable to abatement on a deficien- 
 cy of assets, -either upon a, presumed intention of testator's to give 
 them a preference in respect of the office to which they were ap- 
 pointed, or as a compensation for their trouble in executing trusts 
 of the will; whence they insisted an inference arose, that in con- 
 sideration of -such trouble the testators must have intended them a 
 priority in payment to other general legatees, who had no duty to 
 perform, for the testamentary benefits which they received. But a 
 court of equity has disregarded such subtle reasoning, and required 
 more substantial evidence or intention in order to place legatees in 
 form and in substance general, in a better condition than other gene- 
 ral legatees. Lord Hardwicke, in the case Heron v. Heron,(m) thus 
 expressed his sentiments upon the present subject : " I am very 
 unwilling to distinguish legacies given to execuotrs/or their care and 
 pains, from common legacies, because whether the words care and 
 pains be expressed in the will or not is a circumstance entirely de- 
 pending upon the whim of the drawer. The legacies are still be- 
 quests, and not more so than others, so that there ought not to be- 
 any distinction among them upon so slight a ground " and such was 
 his Lordship's decision. 
 
 The principle of the last case equally applies to and requires the 
 abatement of general legacies bequeathed to creditors, whose debts 
 had been previously liquidated by composition at less than their real 
 amounts, for those creditors are in no higher a situation than gene- 
 ral and voluntary legatees. 
 
 This question was decided in the case of Coppin v. Coppin,(n) 
 where A. after bequeathing several legacies, proceeded as follows : 
 " Whatever shall remain in money, lands and goods I give to my bro- 
 ther B., who is to pay thereout what I owe to my creditors at Aleppo, 
 who have been so kind as to compound my debts with me at 10s. in 
 the pound-; and they are to be paid without interest." .#. then ap- 
 pointed B. executor. There having been a deficiency of assets, the 
 composition creditors claimed a preference in payment of their lega- 
 cies to the others, upon a suggestion that their demands being ori- 
 ginally debts which the testator thought he was bound in. conscience 
 wholly to discharge, they continued moral obligations, though re- 
 leased in law, and were therefore of a superior nature to mere lega- 
 cies, and ought to be preferred. But the Court conceived that the 
 compounded creditors having once released their debts, which be- 
 came extinct, they were not in the situation of creditors, but of vo- 
 luntary legatees, and had no title to the legacies, except purely under 
 the will ; and that it would be dangerous to make a construction be- 
 
 s' "("*"'< 'Ma*ten v. Masters, Alt, Gen. v. Hudson, IP. Will. 265; 
 
 / % r A , ll l e Blsh P of Peterborough v. Mortlock, 1 Bro. C. C. 566. 
 iV" 3 ' 171 ' and see Att ' Gen < v - Robins, 2 P. Will. 25, Fret-well v. Stacy 
 2 Vern. 434. ( ra ) 2 P. Will. 292. 296.
 
 SECT. I.] .and their Abatement. 289 
 
 yond the words of the instrument, the effect of which would be to 
 make a new will for the testator. 
 
 The reasons of the last decision apply to cases where a testator 
 bequeaths money to pay the debts of a relation or friend, because 
 there was no obligation upon him to make such a bequest. The 
 legacy, therefore, is clearly a bounty, and to be considered merely 
 voluntary ; consequently, it is no better condition than other gene- 
 ral legacies, and must abate with them upon a deficiency of assets. (o) 
 
 There is no distinction between a legatee and an annuitant in re- 
 gard to the general rule of abatement,, for the bequest of an annuity 
 out of or charged upon the general personal estate is not specific, as 
 has been shown in the third chapter of this Treatise, from the autho- 
 rities there produced ; it, therefore, is not privileged from abating 
 with the other legacies. And since the mere circumstance of the 
 bequest being of an annuity raises no inference of an intention that 
 the testator meant it a precedency in payment, the annuitant is even 
 destitute of that ground upon which he might claim an exemption. 
 
 Thus in Hume v. Edwards, (p) it was a question, in consequence 
 of a deficiency of assets, whether a devisee for life of an annuity 
 charged upon the personal estate should abate in proportion with the 
 other legatees'? And Lord Hardwicke determined in the affirmative. 
 
 Such being the rule when an annuity is -given directly out of the 
 personal estate, because it amounts to no more than a general be- 
 quest of so much money out of that fund, as will yearly produce the 
 annuity, it follows, that if the bequest be of a sum of money to pur- 
 chase an annuity, or to lay out in buying land, or to invest upon go- 
 vernment securities for the benefit of the legatee, either in paying 
 to him the rents and interest, or otherwise to dispose of the subjects 
 according to his appointment, or to transfer them to him at a parti- 
 cular time ; in each of those cases, if there be a failure of assets, 
 those sums must abate; since they are no more than voluntary dis- 
 positions, and fall within the class -of general legacies. 
 
 Accordingly in Hinton v. Pinke,(q) /2., among other legacies, gave 
 1500L to B, her eldest son, in trust to lay it out in the purchase of 
 lands of inheritance, and to grant a rent-charge of 50Z. a year out of 
 it to her daughter C, for her separate use ; but if B. refused to make 
 the purchase and grant the rent-charge, he was to have 500Z. only of 
 the money, and the remainder,(10Co/,} 'was to be laid out in buying 
 an annuity for C.'s separate use. There being a deficiency of 
 assets, the question was, whether the legacy of 1500Z., or at least 
 the 50Z. annuity should abate with the general legacies? And it was 
 objected against any abatement that the legacy was to. be consider- 
 ed as a devise of land, and therefore .specific. To which it was an- 
 swered, that the bequest was of money only, and liable consequently 
 to abate with other' general legacies. And of that opinion was Lord 
 Parker, C. since the money was not given in the form of a specific 
 legacy; his Lordship observed, that from the provision in the will 
 for the son's refusal or neglect to make the purchase and grant, he 
 considered the daughter to be a legatee for 1000Z. which must abate, 
 
 (o) See Shirt v. Westby, 16 Ves, 393, 396. 
 
 (ft) 3 Atk. 693. (g) 1 P. Will.' 539.
 
 290 General Legacies, [Cn. VII. 
 
 and the residue be laid out in the purchase of annuity for her. 
 Again 
 
 In Lawson v. Stitcher) the bequest was of 500/. ioA. to continue 
 at interest upon such securities as the testator left 'at his death, or to 
 be invested on government securities at the election of his executors. 
 The assets proving deficient to pay all the legacies, Lord Hardwicke 
 determined that the legacy was general, and liable to abate in pro- 
 portion with the other legatees. 
 
 The cases which have been cited, show that when the bequest is 
 made in the form of a general legacy and is pure bounty, and there 
 are no expressions in, or inference to be drawn from the will, mani- 
 festing an intent to give it a priority, the objects or purposes to which 
 the legacy is to be applied will not exempt it from abatement ; for 
 a court of equity will not speculate upon what a testator might mean, 
 as to preferring a legacy on account of the object or purpose to 
 which it was given, when in form it is merely general; since, if the 
 Court were to do so, it might not only, be making a new will for the 
 testator, but be opening widely its doors to litigants, and the line 
 could not be easily drawn at which the Court might say, " hitherto 
 and no farther shall the rule of abatement be broken in upon." It 
 may, therefore, be concluded, that general and voluntary bequests 
 for the maintenance, or 'for the advancement in the world of the le- 
 gatees, or for any other purposes of bounty, must abate with other 
 general legacies. 
 
 In addition to the cases before produced, may be cited the au- 
 thority of Jlpreece v. *flpreece,(s) in support of the above remarks. In 
 that case general legacies were left for the purchase of mourning 
 rings; and although a priority of payment was insisted upon by the 
 legatees, a claim which, if allowed, would have privileged them from 
 abating, with the others, yet it was determined that these bequests 
 (being general) should contribute with others of a similar denomi- 
 nation. 
 
 The last case seems to be a further authority, that legacies given 
 for mourning are within the rule applicable to abatement. 
 
 If a general legacy for mourning or to purchase mourning rings 
 be under the necessity of abating, being considered as no other then 
 a general legacy, it Should seem that a similar form of bequest for 
 building a monument to the memory of a relation would not be 
 placed in a better situation. But in Masters v. Masters,(t} Lord 
 Parker, C. exempted such a legacy from abating with the general 
 legacies. The monument was for the testatrix's mother, and the 
 amount of the legacy was 200/. The bequest was insisted to be a 
 debt of piety to the mother's memory, and therefore entitled to a 
 preference to other general legacies, 'yet how to distinguish this debt 
 of piety from a debt of charity, or a debt of friendship or remem- 
 brance, is not an easy task, a circumstance which proves the wisdom 
 of the rule acted upon by a court of equity in requiring express dec- 
 laration of priority to a legatee, or clear intention to give it, appear- 
 ing from the context of the will, in order to exempt such legatee 
 from abating with the others. Lord Parker's decision may, there- 
 
 (r) 1 Atk, 507. and see Gibbons \. Hills, 1 Dick. 3^4. 5. P. and stated ante, 
 P- 156. () 1 Yes. & Bea. 364. (*) 1 P. Will. 423.
 
 SECT. I.] and their .Abatement. 291 
 
 fore, be reasonably questioned. And if a monument had been erect- 
 ed to the mother's memory, and the testatrix had left the money to 
 ornament or to keep it in repair, the legacy must have abated upon 
 the authority of Blackshaw v. Rogers. (u) It is difficult to support 
 Lord Parker's decree on the basis of a debt of piety, since that con- 
 sideration may be applied to each case ; and then his Lordship's 
 opinion is over-ruled by Lord Thurlow in the authority last referred 
 to. Upon the whole, it is presumed, that a general legacy to erect 
 a monument for a parent, child, or friend, would not now be except- 
 ed out of the general rule of abatement. 
 
 It appears from the preceding cases and observations, that a court 
 of equity will not make a difference among general legatees, and 
 exempt some of them from the operation of the rule of abatement, 
 upon slight inferences or conjectures that the testator intended to 
 give their legacies a priority of payment, when such intention can 
 alone be inferred from the relation of the legatees to him, or from the 
 purposes to which the bequests are applicable. But it may be pro- 
 per to consider more particularly whether the relationship of husband 
 and wife, or parent and child, entitles those sustaining such intimate 
 relationships to a preference in payment of their general legacies, 
 over other general legatees. They have claimed such a priority up- 
 on the basis of intention, presumed from the close connection sub- 
 sisting betwe.en them and the testator. In the case of Lewin v. 
 Lewin,(x) though not a decision that a wife or child is in general 
 entitled to such preference in payment, yet Lord Hardwicke express- 
 ed himself in terms, which could not be otherwise understood than 
 as his sentiments in favour of the general right. Nevertheless, within 
 ten days afterwards, his Lordship in a case of Blower v. Morret,(y) 
 seems to have changed his opinion in declaring, that a claim of a 
 general legatee (a wife in that instance) to a priority of payment to 
 other general legatees, must be founded upon very strong expres- 
 sions in the will ;(z) thus intimating that inferences of intention 
 drawn from circumstances, such as the relation of parent and child, 
 or husband and. wife, are not of themselves sufficient to form those 
 cases into exceptions to the rule observed in regard to abatement in 
 the administration of assets ; exceptions which the Court has seldom 
 allowed. It cannot be denied that on first impression, it appears to 
 be a natural inference, that a husband or parent should intend to give a 
 preference in payment to a general legacy bequeathed to his wife or 
 child, upon which intent alone it must be that such, priority can be 
 claimed. Yet upon reflection, the impression and inference[first made 
 lose much of their weight, when it is considered that the -testator has 
 not expressly declared that priority, but given the legacy in the same 
 form of generality as his other legacies ; and further, that it is not 
 only possible, but probable, that so far from meaning any preference 
 in payment to any of them, he intended and thought that all the lega- 
 cies he had bequeathed would be fully satisfied ; indeed the very 
 bequests are evidence of his conception and belief that his personal 
 estate was sufficient to answer all his testamentary dispositions. (a) 
 The testator's intention, therefore, to prefer the legacy to his wife 
 
 () 
 (y) 
 
 Cited 4 Bro. C. C. 349. and stated infra. (.r) 2 Ves. sen. 416. 
 Ibid. 420. (z) Ibid. 421. (a) 4 Mad. 168.
 
 292 General Legacies, [Cn. VII. 
 
 or child (that intent being the very foundation upon which the claim 
 rests) seems to be even below doubt ; for it is probable there was a 
 total absence of intenton upon the subject. 
 
 On the whole, it would seem that when a legacy to a wife or child 
 is general, the rule of abatement applicable to other general lega- 
 cies equally applies to it, and can only be evaded by strong expres- 
 sions in the will, or manifest intention collected from its contents ; 
 so that if there be neither expressions in the instrument, nor inten- 
 tion apparent upon the face of it, that such legacy should have pre- 
 cedence, it must abate with the general legacies, with regard to the 
 circumstance whether the wife or child have any other provision or 
 not. The principle is, that the legacy being general like the rest, 
 there is no solid reason in the absence of declaration, or intention 
 appearing upon the will, why that legacy should not be exposed to 
 the same disadvantage as the other legacies. (6) 
 
 But since a testator may by express declarations, or clear intention, 
 shown in his will, prefer one class of general legatees to another, so 
 as to exempt the bequests, falling within that class, from abating 
 with the rest, we shall proceed to consider 
 
 2. What will and what will not be sufficient expression, and 
 what sufficient evidence (in the absence of express declaration) of 
 the testator's intention to prefer in payment one legacy to another. 
 
 It is but seldom that claims by general legatees of a priority of 
 satisfaction, so as not to abate proportionally with others, have been 
 brought before a court of equity. There are not, therefore, many 
 cases upon the subject; yet 'from the authorities which have been 
 and will be produced, it appears how rarely the Court has acceded 
 to those demands, and for the reason before stated, viz. that if it 
 were upon slight grounds or conjecture to give a preference to a 
 general legatee, there would be no end to applications upon the 
 subject. The Court, therefore (when the testator's express decla- 
 rations are relied on) requires them to be clear and explicit, in order 
 to give any individual general legacy a preference over other general 
 bequests. 
 
 Thus in Marsh v. Evans, (c) there were words declaratory of a 
 preference in payment of a legacy given to a daughter. The only 
 question was upon the construction of the words in reference to the 
 event which had occasioned a necessity for abatement by the lega- 
 tees. The case was to the following effect : Jl. bequeathed 2000Z. 
 a piece to his two sons, and 2000Z. to his daughter, payable at twenty- 
 one or marriage ; with a proviso, that if the assets should fall short 
 for the satisfaction of those legacies, his daughter should notwith- 
 standing, be paid her full legacy, and the abatement be borne pro- 
 portionally by the legacies of the sons only. The testator left suf- 
 ficient property to discharge all the legacies, but the widow and 
 executrix wasted the assets, which was the sole cause of the de- 
 ficiency. And Lord Parker, C. on appeal from a decere at the 
 Rolls, determined in reversal of that decree, that according to the 
 words and meaning of the will, the. daughter should have her full 
 portion, and the abatement be only made out of the legacies to the 
 
 (b) See Lord Hardwicke's judgment in Blower v. Morret, 2 Ves, 421. 
 
 (c) 1 P. Will. 668. (rf) i p. Will. 669.
 
 SECT. I.] and'their Abatement. 293 
 
 sons ; and for these reasons, viz. that there was a plain preference 
 given to the' portion of the daughter before those of the sons, and 
 that the event which had happened was within the words of the pro- 
 viso, the estate having actually fallen short to. pay the legacies; also 
 since the testator had not restrained the expressions to any par- 
 ticular means by which the assets should fall short, the construction 
 of them was to be general, i. e. if by any means there should be a 
 deficiency, because the injury was the same to the -daughter, whom 
 the father seemed in all events to have provided for with a portion of 
 2000;. 
 
 It seems to follow from those reasons, that if -the assets had be- 
 come deficient after the testator's death, by losses from fire, or by a 
 defect of title to a security, upon which part of the estate had been 
 lent (events which could not have been foreseen by the testator) 
 those accidents would have been included within the provision of the 
 will, and the daughter entitled to her full portion. (d) 
 
 If, however, the expressions be ambiguous, and do not mark with 
 certainty the testator's intention to give a priority to a legatee, the 
 rule of abatement is so much regarded, that the Court will not per- 
 mit it to-be infringed by such an uncertainty. 
 
 Suppose, then, a testator give to his wife a general legacy of 500/. 
 with a direction to pay it immediately after his death, out of the first 
 monies that should be received by his executors ; neither the order 
 for payment of the legacy, immediately after the testator's decease, 
 nor the direction of its satisfaction out of the first monies which 
 should-come to the hands of his executors, would be a sufficiently 
 clear manifestation of his intention, that he meant to give this lega- 
 cy a precedency in payment to his other bequests ; and for these 
 reasons : the testator, in directing the legacy to be paid immediate- 
 ly after his death, might merely intend to anticipate the legal period 
 of payment, which is at the expiration of one year after his decease, 
 and not to give the legacy a priority to his" other general legacies ; 
 and then the proviso for payment of it' out of the first money to be 
 received after his death, is consequential to that preceding direction, 
 and of no operation. Hence it appears, that the' testator has not so 
 clearly expressed his intention to give a preference to the legacy, as, 
 in this instance, to authorize a court of equity to relax its rule of 
 abating, founded upon the justice of an equal contribution, by all 
 the general legatees. (e) 
 
 And for the reason last mentioned, if a legacy be given to Jl. pay- 
 able one month after the testator's death, a second legacy to B. six 
 months after the testator's death, arid a third legacy to C. payable 
 twelve months after the' testator's decease, the difference in times of 
 payment will not impart to any of the legatees such a preference as 
 to exempt them from abating upon a deficiency of assets ; because 
 the preference being confined to payment only, is consistent with 
 the intent imputable to all testators, that their several dispositions 
 should be wholly satisfied, upon which presumed, intention it is, that 
 the rule of contribution is founded. The intent, then, in the pre- 
 sent case, to exempt any of the legacies from the operation of that 
 
 (rf) IP! Will. 669, (*) Blower v..Morret, 2 Ves. sen. 420.' 
 
 VOL. I. P
 
 294 General Legacies, [Cn. VII. 
 
 rule, merely upon the ground of the different periods appointed for 
 their payment, is, at the utmost, conjectural and ambiguous, and 
 consequently insufficient to impart that privilege^/) 
 
 So also, if a testator expressed himself in the following manner : 
 " Imprimus," or " in the first place. "(g) I give such a legacy to Jl. 
 and "in the next place," or "-afterwards," I give such a sum of 
 money to B.; these words or. variety of expression (considering the 
 inattention and incorrectness with which wills are frequently drawn, 
 as also the little regard paid to nicety of expression) will neither give' 
 A. a preference to 13. nor either of them a priority to other general 
 legatees, so as to exempt them from the obligation of abating with 
 such other legatees. The reason is, that the words merely point out 
 the order in which the bequests are made in succession, and do not 
 impart with certainty an intention to prefer one to another. The 
 expressions before noticed are not necessarily inconsistent with the 
 application of the general rule of abatement which is founded upon 
 equality, but they may be satisfied with a construction compatible 
 with the admission of that rule. The possible intent of the testator 
 to give a preference by the language-he adopted, is judicially insuf- 
 ficient to accomplish a purpose so obscurely or doubtfully intimated. 
 
 All the above expressions occurred in the recent case of Beeston 
 v. Both,(h) in which the testator gave his personal estate to execu- 
 tors, in the first place, to pay debts, funeral and testamentary expen- 
 ses; and in the next place, three legacies to B., C. and D. with 
 legal interest from three months after his death, and afterwards to 
 raise and set apart three sums of money to be applied as therein men- 
 tioned. Upon a question of abatement, the Court declared, upon the 
 principle before stated, that none of the legacies were entitled to a 
 priority of payment, and therefore that all of them must abate pro- 
 portionally, according to the general rule. 
 
 Having considered certain expressions as not sufficiently indicat- 
 ing a testator's intention to exempt one general legatee from abate- 
 ment in preference to another, we shall next produce some instances 
 where the contents of the will were held to- afford the requisite* evi- 
 dence of that intention. 
 
 . Since every testator is presumed to mean, that all the legacies given 
 by him shall be paid^ it follows that if there be a deficiency of 
 assets to fulfil the intent, it is only equitable that all of them should 
 bear the loss in proportion to their bequests ; and such is the rule as 
 before stated. To form exceptions to a rule so founded, the testa- 
 tor's intention as collected from his will, in the absence of appropri- 
 ate expression must be clear, as. appears from the cases before men- 
 tioned and referred to. An instance of the manifestation of such 
 an intention may be, where a testator, in disposing of his personal 
 estate, constitutes two residues, and computes the first after taking 
 out of it one or more legacies, and computes the second, after de- 
 ducting other legacies. In such a case, it has been determined, that 
 the intention was sufficiently apparent to give the first set of lega- 
 
 (/) 2 Ves. sen. 421. 4 Mad. 168. 
 
 (g) Brown v. Allen, 1 Vern, 31. Lewin v. Lnmn, 2 Ves. sen. 417. and Blower 
 v. Morret, ibid. 42L (h) 4 Mad. 161.
 
 SECT. I.] and their Jldemption. 295 
 
 tees a preference in payment to the second, so as to privilege the 
 former from abating with the latter. 
 
 The case of Lewin v. Lewin,(i) will prove and illustrate the above 
 remarks. A. having a wife and two children, bequeathed to her for 
 life an annuity of 120Z. subject to limitations over, if he had a son, 
 &c. And he afterwards directed his executors to buy, if they could, 
 the annuity in government securities of ninety-nine years, or some 
 other long term, but if they were unable to do so, then to purchase 
 lands of the annual value of 2001. to be so settled that the annuity 
 should be to his wife, free from taxes, with remainders over. A. 
 also directed that' if he left any child, his executors should out of the 
 profits of his residuary estate pay to his wife 30Z. a year for the main- 
 tenance of such child. He then gave legacies to some collatral re- 
 lations and friends, and ordered all the residue of his real and person- 
 al estates to be placed out for the benefit of his -children, and to be 
 paid to them at their respective ages of twenty-one or marriage. 
 There being a deficiency of assets, the 'question was, whether the 
 \uife's annuity of 1201. should abate with the other general legacies 1 
 And Lord Hardwicke determined in the negative, expressly stating 
 in the subsequent case of Blower v. Morret,(k] the governing reason 
 for his decree in the present, to be " that the testator had consti- 
 tuted two residues of his estate j". and his Lordship observed in his 
 judgment in Lewin v. Lewin,(l) that it would be an unreasonable 
 construction, and contrary to the intent to presume the testator 
 meant the whole maintenance for his children should depend upon 
 the contingency, whether there would be any surplus after the pur- 
 chase^of the annuity, (the whole of which was to go to the wife for 
 life), and after all the general legacies that he had given to colla- 
 teral relations and friends. 
 
 That the last observations, connected with the manner in which 
 the two sets of legacies are bequeathed, afford additional corrobo- 
 rative evidence of the testator's intention to give a preference of 
 payment to the first class is obvious. But had the annuity been be- 
 queathed and classed with the other legacies without any mark of 
 discrimination, then it should seem, for the reason, detailed in a 
 preceding page,(m) that although its object were a provision for a 
 wife, it would not have been exempted from abatement with the 
 other general legacies. 
 
 Another instance of intention sufficiently manifest to prefer one 
 class of legatees to another may be, when a testator, after bequeath- 
 ing several legacies, states his supposition of there being still a re- 
 sidue of his estate, and. then proceeds upon that idea to give more 
 legacies either in his will or by a codicil ; in such a case if the 
 assets be deficient to satisfy all the bequests the second set of 
 legatees alone must contribute 'to supply the deficiency, for they 
 are not entitled to call upon the others to join in the abatement, and 
 upon the principle of the testator's intent being clear to give the 
 second class of legacies only if there remained a sufficient fund for 
 their payment, after satisfaction of those first bequeathed. 
 
 A question of this kind occurred in the Attorney General v. 
 
 (0 2 Ves. sen. 415. (fc) 2 Ves. sen. 421. (/) Ibid. 417. 
 
 (w) Ante, p. 291.
 
 296 Ueneral Legacies, [On. VII 
 
 Robins, (n) in which tho testator after giving several legacies men- 
 tioned towards the conclusion of his will, that he apprehended 
 there would be a considerable surplus of his personal estate beyond 
 what he had before disposed of in legacies ; for. which reason he 
 gave several others. . After this he gave further legacies in a codicil 
 amounting to 160J. which, upon a deficiency of assets as the event 
 happened, were to be paid out of 200Z. given by the will to chari- 
 table purposes. The Master oftJie Rolls determined that the lega- 
 cies given at the latter end of the will being upon a presumption 
 that there wo.uld be a surplus, but founded in a mistake, should be 
 postponed to those previously bequeathed.. And in regard to the 
 legacies in the codicil, the Court observed, that as a codicil is part 
 of the will, bequests in both should proportionally abate ; but that 
 in the present case, when the. testator in the' latter part of his will 
 said, that, since he apprehended there Would be a considerable sur- 
 plus, he gave additional legacies, the-same apprehension must be 
 intended to continue when he made the codicil; and the legacies in 
 it should take place only out of the supposed surplus, .were it not 
 for the latter part of the codicil in the present case, directing, in 
 case of a deficiency of assets, the legacies it contained should be 
 paid out of. the 200/L given by the will for charitable purposes, a 
 legacy which, in the event that happened, could not take effect to 
 its full extent. Hence it appeared tha't by the reference to the will, 
 and a substitution of the legacies in the codicil for part of one in 
 the first class bequeathed by such will, in the event of a want of 
 assets to pay in full the benefits given by the codicir, .the- testator's 
 meaning was sufficiently evinced, that both these sets of legacies, 
 viz. those of the first class in the will, and those in the codicil 
 should be equally paid ; and, consequently, that all of them should 
 abate in proportion. Again 
 
 In the case of Beeston v. Booth,(o)- the testator, after giving two 
 sets of legacies, directed th'at after payment of those bequests and 
 of his debts, his executors and trustees .should be possessed of his 
 residuary estate, if not exceeding 100QZ. intrust for B.; but if it 
 were more, and not beyond. 1500Z., in trust for B. and C.; and that 
 if such residue exceeded 1500Z., then in trust to pay the further 
 legacies therein given (specifying their amounts) ; and the surplus, 
 if any, to D., with a direction, that if the residue were insufficient 
 to pay those legacies, the persons to whom they were bequeathed 
 should proportionally abate. Upon a. considerable deficiency of 
 assets, one of the questions was, whether the abatement should be 
 general, as well by. the two sets of legacies given before the dispo- 
 sition of the residue, as by the 'third set bequeathed in distributing 
 such estate 1 ? And the Court determined that the two first classes 
 of legatees were entitled to a preference of payment to the third 
 class; and consequently, that the latter could claim nothing, unless 
 there remained a surplus after fully satisfying the testator's debts, 
 and the two first sets of legacies; as the intention was clear, that 
 the third class was to be -payable only in the event of there being a 
 surplus, as before described. 
 
 The last point to be considered, in determining whether a general 
 () 2 P. Will. 23. ( ) 4 Mad. 162. 170,
 
 SECT.. L] . and their Abatement. 297 
 
 legacy is entitled to a preference in payment, so as to be privileged 
 from abating with other legatees as previously observed, (/>)^-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, <md his sale of it"? Sir Thomas Sewell, M. R. determined in 
 the affirmative; a decision) which not being acquiesced in, the cause 
 was re-heard by Lord Kenyon, M. R. who, although he decided 
 against the plaintiff's on account of the length of time which had 
 elapsed between the accruing and the prosecution of their claims, 
 yet he. expressed what -his decision would have been had he been 
 under the' necessity of determining upon the merits of the case; 
 since his Lordship's observations are clear and important, that con- 
 sideration will apologize for the submission of them in detail to the 
 reader. " As far as. respects the mortgage to Mrs. Mascall (in which 
 there is a general recital only that Ridgard and his wife had occa- 
 sion for 1000Z.) I ( said his Lordship) have had some hesitation, but 
 
 (0 Ante, pp. 303, 304. (/) 17 Ves. 165. () 1 Cox, 146, 148.
 
 SECT: II.] to follow the Assets. 307 
 
 upon the whole, I do not think that transaction, impeachable, for I 
 am of opinion, that a purchase from an executor need not have any 
 recital of the purpose for which the money is raised. Ho is allowed 
 to trust the person whom the testator had trusted. If, on the other 
 hand, the moggy appear to have -been borrowed for improper pur- 
 poses, to be sure the transaction cannot stand. Here the husband 
 and wife join in the mortgage. The purpose for which the money 
 is wanted is undefined. The money came to the hands of the ex- 
 ecutrix which it was her. duty to apply ;. and for any thing Mrs. Mas- 
 call could know, it was properly applied. Therefore so far as any 
 person stands in privity, of estate with Mrs. Mascall, the transaction 
 is valid. But then comes the deed of 1752 $ which releases the equity 
 of ademption to Barnard, .and recites that Ridgard was then justly 
 indebted to Barnard in 200Z. by bond, 111. for interest, and 1211. by 
 simple contract, which sums with the payment of 61. formed the con- 
 sideration of sale. This was a few months after the marriage of 
 Ridgard 'to the executrix, which satisfies me, that this money was 
 not raised for fair legal purposes. The fund in the hands of the widow 
 was applicable to the payment of the debts, &,c. and after that to 
 certain defined puposes declared by the will. Barnard had full 
 notice of the will, he knew that, after the debts were paid, this fund 
 ought to be so applied, and he therefore connived at its being mis- 
 applied. If, then, the case turned upon this, I should be bound to 
 set aside the transaction, or rather -to turn the defendants into trus- 
 tees for the plaintiffs." 
 
 The substance of his Lordship's opinion may be thus stated. If 
 there were debts of the testator subsisting at the time of the release 
 to Barnard the transaction with him was of such a nature, as showed 
 that he was consenting to a devastavit in the executrix, viz. in ac- 
 cepting from her part of the assets in satisfaction of a debt due from 
 her husband personally to Barnard, which was inadmissible. On 
 supposing all the' debts to have been discharged, the consequence 
 would be the same ; since it was the duty of Barnard to have seen 
 that all the trusts of the will had been performed, and- that the ex- 
 ecutrix was entitled to the property, before he accepted any of the 
 assets in payment of the debt due to him from her husband. The 
 reason is, that part of the consideration being the debt of the ex- 
 ecutrix's husband, clearly showed that the purchaser was not dealing 
 with her as executrix ; so that the power of disposition given to ex- 
 ecutors over the assets of their testators did not apply to such a case. 
 If that reason be correct, the case of Whale v. Booth,(h) may be 
 doubted. There the executors confessed a judgment to one of their 
 own creditors, and permitted him to take in execution assets belong- 
 ing to their testator, and joined in executing to him a bill of sale. 
 Lord Mansfield and Buller, J. held upon the principle of the execu- 
 tor's power to dispose of the whole, that the title of the executor 
 could not be impeached at the instance of a creditor of the testator. 
 From the observations made at the conclusion of the case of 
 Bonney v. Ridgard, viz. that the purchaser did not deal with the 
 executrix in that character, as was manifest when he took from her 
 the assets for a consideration which had no connection with her 
 
 (A) 4 Term. Rep. 625. in no(is.
 
 Rights of Legatees, [Cn. VII. 
 
 office it appears that the case of Whale v. Booth was improperly 
 treated, when considered as a question upon the power of executors 
 to dispose of their testator's personal estate ; for it ought rather to 
 have been viewed as a transaction between strangers, where the 
 vendors, in order to make a good- title, must have shown, that all 
 claims affecting the property had been discharged, and that they 
 were in a situation to dispose of it free from incumbrances. 
 
 The case of Farr v. Newman,(i) which followed that of Whale v. 
 Booth, was not a decision on the present question. It is true, that 
 the Judges, probably in deference to the case last mentioned, and 
 to those before Lord Hardwicke, of Nugent v. Gifford and Mead v. 
 Lord Orrery,(k) treated, as if settled, the power of executors to 
 dispose of the assets to their own creditors to the prejudice of the 
 creditors and legatees of the testators ; yet they, as well as Lords 
 Hardwicke and Mansfield, admit, that if there be any contrivance 
 between an executor and his own creditor, to enable the former to 
 commit a devastavit, that circumstance excepts the case out of the 
 general power of the executor to' dispose of the estate. Can there 
 be stronger evidence of contrivance for that purpose than in the in- 
 stance of a creditor of the executor accepting the property of a tes- 
 tator in payment of a debt due to him by the executor, whose office 
 and duty proclaim that the executor was, in so doing, dealing with 
 the assets not as executor, but as his own 9 And what necessity 
 can there be, in .order to the due administration of 'the estate, to 
 arm an executor with the power of wasting the assets, when the per- 
 son receiving them from him had, or ought to be considered as 
 having, notice of the misapplication from the transaction itself. 
 
 Upon the whole, it is submitted that neither at Jaw nor in equity 
 does the power of an executor extend to authorize him to sell or 
 pledge the testator's assets with a creditor of his own, so as to pre- 
 vent the persons interested under the testator's will from following 
 them ; for the law seems to say, as declared by Lord Kenyan, " Let 
 executors do their duty, and let the authority cease where injustice 
 begins. (I) 
 
 But whatever may be the decision of a court at law, it may be 
 considered, that a court of equity would not permit such a vendee 
 or mortgagee to retain the assets acquired by him for his own debt 
 owing by the executor individually, and not as executor. In addi- 
 tion to Crane v. Drake and Pagett v. Hoskins, before stated, and 
 more pointedly confirmatory of this remark than those cases, is the 
 ease of Scott v. Tyler(m) which was as follows : 
 
 The testator gave his securities on the river Lee to his executors, 
 who were also trustees for the separate use of Margaret Christiana, 
 then married, until she attained the age of twenty-one, and then for 
 her absolutely. The testator died in the year 1776, leaving the se- 
 curities with Messrs. Hankeys, his bankers, with whom they had 
 been deposited for safe custody in a locked box. Elizabeth Tyler, 
 one of the executors, and sole residuary legatee, being extensively 
 engaged in trade, caused the box to be opened about three year's 
 
 f Term. Rep. 621. () AntCt pp . 304, 305. 
 
 (0 4 1 erm. Rep. 651. and see Eyre, C. J.'s remarks in Quick v. Staines, 1 Bos. 
 &Pull. 295. and those of Lord Eldonm M'Leod v. Drummond, 17 Ves, 154. 155. 
 (OT) 2 Dick. 712. 724. 2 Bro. C. C. 431. 5. C.
 
 SECT. II.] to follow the Assets. 309 
 
 after the testator's death, and being at that time greatly indebted to 
 the bankers on her separate account, she pledged with them ten of 
 the river Lee securities, (which were bonds) for securing not only 
 their prior, but also all their subsequent advances for her; but the 
 bonds were not assigned. Mrs. Tyler having become -a bankrupt, 
 the question was, whether the bankers were entitled to retain the 
 bonds against Christiana^ The case, though compromised, never- 
 theless contains Lord Thurlow's decided opinion against the bank- 
 ers, upon the principle of the deposit having been made for the 
 executor's private debt, for which they knew the assets not to be 
 liable until all the debts and legacies were satisfied. This manner 
 of dealing, therefore, with the estate, placed the bankers under an 
 obligation, as before observed, to ascertain at their own peril the 
 fact above-mentioned, before they accepted any of the assets in 
 pledge for the private debt of the executrix. 
 
 Lord Eldori's observations, in commenting upon the last case, must 
 not be omitted. " If (said his Lordship) an executor cannot deposit 
 securities for future advances to be made to him, not in his charac- 
 ter of executor, but as a trader, it is difficult to hold that he may 
 make the deposit for present advances not as executor, but as acusr- 
 tomer of the bank, in his own individual trade. (n) 
 
 The case that followed, and bearing great resemblance to Scott 
 v. Tyler, was Hill v. Simpson,(o) in which Mrs. Smith, being an ex-r 
 ecutrix and a legatee under the will of her deceased husband, and 
 having possessed all his assets, bequeathed her personal estate (sub- 
 ject to her debts, funeral and testamentary expenses, and to her late 
 husband's will) to her three nephews, the defendant Simpson being 
 one of them, and appointed them executors. Simpson alone proved 
 the will, and received the testatrix's personal estate, and some of 
 her late husband's assets, part of which, consisting of government 
 securities, Simpson transferred to Mqffatt &/ Co., his bankers, as a 
 security, not only for what he then owed, but for so much money as 
 he might afterwards become indebted to them. This transaction 
 took place within a month after the death of Mrs. Smith. Simpson 
 having become a bankrupt, the question was, whether Messrs. Mof- 
 fatt t^ Co. could retain the property against "the claims of two 
 general legatees of Mrs. Smith ? And Sir William Grant, M. R. 
 determined in the negative, upon the same principle that Lord 
 Thurlow would have decided Scott v. Tyler, had that case been . 
 submitted to his decree. His Honour observed, that if the second 
 point in Scott v. Tyler had received the decision which it was ge- 
 nerally supposed would have been given, (p*) it would be an autho- 
 rity far beyond what those plaintiffs want; for in that case the 
 executrix had disposed of the river Lee bonds four years after the 
 death of the testator. The bankers swore they knew nothing of the 
 will, and they believed the bonds to be her own property, not that 
 of the testator. If that case had been decided against the bankers, 
 
 . (rz) 17 Ves. 166. (o) 7 Ves. 152. 
 
 (/i) That Lord Thurlotu's judgment would have been against the bankers, ap- 
 pears from 2 Dick. 724. And in M'Leod v. Drummond, 17 Ves. 166. Lord 
 JEldon declared he could confirm Mr. Dicken's assertion, that the judgment stated 
 by him contained Lord Thurlow's opinion, and intended to have been delivered by 
 him, if the cause had not been compromised. 
 VOL. i. R r
 
 310 Rights of Legatees, [Cn. VII. 
 
 it would have furnished a stronger authority than is necessary for 
 these plaintiffs.(?) 
 
 Since the observations of the Master of the Rolls, in delivering 
 judgment in the last case, are confirmatory of those which have'been 
 previously submitted upon this difficult subject, that consideration 
 will apologise for- their insertion* " The express purpose (said his 
 Honour) for the transfer of the funds, appears to have been to secure 
 a debt of the executor's own, which he already owed to the bankers, 
 and other advances they were to make by taking up bills of his then 
 actually outstanding. The bankers, therefore, had distinct notice 
 that the money was not to be applied to any demand upon the estate 
 of either testator, but the assets were to be wholly applied to the 
 private purpose of the executor. Allowing every case to remain un- 
 disturbed, does it follow from any that an executor in the first month 
 after the testator's death can apply the assets in payment of his own 
 debt, and that a creditor is perfectly safe in so receiving and apply- 
 ing them, provided he abstain from looking at the will, which would 
 show the existence of unsatisfied demands ?" It is clear in regard 
 to an executor thus dealing and being dealt with, that no rule of jus- 
 tice permits, nor of convenience .requires, that he should have this 
 unbounded power. Although it may be dangerous at all to restrain 
 the 'power of purchasing from him, what inconvenience can there be 
 in holding that the assets, known to be such, should not be applied 
 in any case for the executor's debt, unless the creditor should be first 
 satisfied of his right *? It may be essential that the executor should 
 have the power to sell the assets, but it is not essential that he should 
 have the power to pay his own creditor; and it is not just that one 
 man's property should be applied to the payment of another man's 
 debt."(r) Sir JVilliam Grant also considered it to have been the 
 duty of the bankers, before they accepted a transfer of the funds, to 
 have satisfied themselves of the executor's right to pledge the assets 
 for a debt of his own.(s) 
 
 To the decision before stated against the power of executors to sell 
 or pledge the assets with a creditor for their own debt, may be add- 
 ed the opinions of Lord Alvanley in Andrew v. Wrigley,(t) of Lord 
 Eldonin M'Leod v. Drummond,(u] and of Sir John Leach in Keane 
 v. Robarts.(x) 
 
 A difficulty may occur in ascertaining the nature of the transac- 
 tion between the executor and the person to whom he has disposed 
 of the assets ; i. e. it may be doubtful whether the pledge of aliena- 
 tion was in fact made by the former in the proper prosecution of his 
 trust, or in satisfaction of, or to secure his own private debt. Upon 
 this subject opinions seem to agree in the following distinction: 
 When no money is paid for the purchase or deposit, and it appears 
 that the executor was indebted at the time to the purchaser or mort- 
 gagee, it will be presumed, in the absence of contrary evidence, that 
 the sale or mortgage was made in consideration of that debt, which 
 being a devastavit in the executor with the privity and concurrence 
 of the alienee, will invalidate the transaction in regard to s persons 
 claiming under the testator. But that when the consideration is 
 
 (?) 7 Yes. 169. (r)7Ves. 168. (s) Ibid. 170. 
 
 (0 4 Bro. C. C. 136. ( M ) 17 Ves. 154. 170. (*) 4 Mad. 357.
 
 SECT. II.] to follow the Assets 311 
 
 paid at the time of the sale or deposit, then as the transaction is con- 
 sistent with a fair administration of the assets, the presumption will 
 be (subject to rebuttal by proof of a different intention,) that the 
 transaction was bond fide, and the money advanced to enable the ex- 
 ecutor to execute the purposes of the will.(t/) 
 
 An instance, however, occurred in M'Leod v. Drummond,(z) 
 which, in Lord Eldbn's opinion, as also in that of Sir John Leach,(a) 
 would be sufficient evidence of fraud in the alienees to deprive them 
 of the benefit of their security, notwithstanding they gave a consi- 
 deration for it to the executors. In that case the advances of Messrs. 
 Drummond (although paid at the time of the deposits) were made to 
 two executors (who were partners as army agents,) but were so made 
 to them in the course of their business as army agents, credit being 
 given to them, not as executors, but to their account with Messrs. 
 Drummond in the way of their private business, which was confirm- 
 ed by the circumstance that the deposits did not consist of assets 
 alone, but also of the separate property of the executors. Lord El- 
 dpn therefore considered the bankers as much parties to the devas- 
 tavit, as if they had applied the money to pay the private debt of the 
 executors, it being quite immaterial whether the advance were made 
 for the latter purpose, or to the private trade of the executors. (6) 
 
 If indeed the pledge of the assets in the last case were to be con- 
 sidered valid, then as the deposit consisted of property of the ex- 
 ecutors, as well as of the testator, should the whole of it exceed in 
 value the debt or advance for which it was a security, the persons 
 beneficially interested in the testator's estate would have an equity 
 to have the pledged assets exonerated by that portion of the deposit, 
 which formed part of the individual property of the executors. (c) 
 
 Any artifice between an executor and a third person, by which a 
 misapplication of the assets is affected, will vitiate the transaction ; 
 and however artfully the plan be contrived, it will not be permitted, 
 when detected, to operate to the prejudice of persons interested 
 under the will. Now executors may appoint an agent to collect 
 and dispose of the testators's estate, and to remit the produce to 
 them, and such person is only answerable to his employers ; and 
 although he may be .acquainted with the circumstance of their mis- 
 applying the estate, yet he will (as it seems) be justified in perform- 
 ing his duty in faithfully remitting to them the assets -collected under 
 his authority ;(d) and creditors or legatees of the testator have no 
 equity to make him responsible for so much "of the estate as he trans- 
 mitted to the executors after acquiring such knowledge. (e) But it 
 is conceived, that if the person were not merely such agent as be- 
 forementioned, but also agent to the executors, in their private 
 concerns, and he made advances to them for their separate use, he 
 would not be permittee! to bring those loans in account with his 
 agency in respect to the testator's assets, so as to charge that fund 
 with them ; since, if he were allowed to do so, it would be enabling 
 an executor to accomplish that indirectly, which he could not effect 
 directly, viz. an appropriation of the estate to his own debt, with 
 
 (y) See Scott v. Tyler, 2 Dick. 725. M'Leod v. Drummond, 14 Ves. 362. 17 
 Ves. 155. (z) 17 Ves. 156. (c) 4 Mad. 359. (A) See 14 Ves. 356. 17 Ves. 156. 
 (c) 17 Ves. 158. (rf) Keane v. Robarts, 4 Mad. 356, 359. (e) Ibid.
 
 312 Rights of Legatees, [Cn. VII. 
 
 the privity and contrivance of the creditor. It would be converting 
 the union of the two agencies into an engine of fraud. 
 
 If an executor be not permitted to sell or pledge any of the assets 
 for his awn debt, to the prejudice of creditors or legatees of the tes- 
 tator, upon the ground of the direct notice, which the transaction 
 gives the alienee, that the executor is not dealing with him as ex- 
 ecutor, it is requisite to consider whether, if a purchaser or mortgagee 
 of the estate know the executor wastes the assets, or that he will 
 misapply the produce from the sale or mortgage, such notice will 
 except the transaction out of the general power of the executor to 
 dispose of the testators estate *? 
 
 The criterion by which all questions upon the present subject are 
 to be examined, is, whether the person dealing with the executor 
 for the testator's assets, can be charged with fraud, which implies 
 collusion.(y) The testator has trusted the executor with the 
 administration of his estate ; and the law, as incident and neces- 
 sary to the performance of that duty, has empowered the executor 
 to dispose of the assets under his own personal responsibility. If 
 then a transaction be no more than a sale or pledge of part of the 
 estate of money advanced at the time ; that the executor intends to 
 misapply it, is indifferent to the alienee, if he be ignorant of that in- 
 tention ; for the law presumes the disposition to have been made 
 for the purposes for which it gives an executor the power of sale ;(#) 
 and there is no obligation upon the alienee to see to the applica- 
 tion of the money, unless he have notice of all the debts having 
 been paid, a knowledge which he is not bound to be active in ac- 
 quiring. Hence it is presumed, that, although a person have notice, 
 at the period of advancing the money and receiving the assets, that 
 the executor has misapplied part of the general estate, that fact and 
 notice will not vitiate the transaction ; for non cdnstat that the 
 money may not be wanted and may not be applied, notwithstanding 
 the prior misconduct of the executor, in payment of debts, and the 
 alienee is entitled to trust the person whom the testator has trusted. 
 There is nothing upon the face of the transaction importing it to be 
 inconsistent with the duty or character of an executor. The alienee 
 has substituted an equivalent in the hands of the executor, in lieu of 
 the assets received, with the due administration of which he has no 
 concern, and there is no understanding between the parties that the 
 money shall not be applied as part of the estate of the testator. (h) 
 There seems, therefore, in such cases to be no solid ground for per- 
 mitting creditors or legatees of the testator to follow the assets into 
 the possession of the alienee. But, according to the test before no- 
 ticed, it is conceived that the result would be different, if the alienee 
 knew at the time of the transaction that his money was to be appro- 
 priated by the executor for purposes of his own ; since such an ap- 
 
 lication is not the usual mode of administering the estate, it bears 
 the impression of concert and collusion between the parties to com- 
 mit a devastavit, and also of contrivance to injure the persons inte- 
 rested in the assets. In truth, the alienee does not treat with the 
 executor in the character of executor, so that the power of disposi- 
 
 r ' C> 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. (</) Con- 
 sequently, if one or more of them die before the testator, the survi- 
 vors will be entitled to the whole property, for the reasons before 
 detailed. 
 
 Thus in Frewen v. Relfe,(r) the persons whom the testatrix, after 
 various changes, ultimately appointed her executors, were M. Berry, 
 M. Barham, L. Relfe, P. Frewen, and H. Benge, and no disposition 
 was made of the residue. The two first named executors died before 
 the testatrix, and Lord TJwrlow determined that the survivors were 
 entitled to the whole of the fund. 
 
 2. With respect to legacies given to persons as tenants in common. 
 
 1. It is a rule when distinct legacies are given to individuals, or 
 an aggregate fund is directed to be divided among them, nominatim 
 in equal shares, their interests are several ; and if any of them die 
 before the testator, what was intended for those legatees will lapse 
 into the residue ; because the others have no interest in the benefits 
 intended for the deceased legatees, each legatee being solely enti- 
 
 (o) 3 Ves, 628. 631. (/*) Ante, p. 328. 
 
 (V) 2 P. Will. 247. 529. 2 Br6. C. C. 25. 9 Ves, 204. 598. 
 (r) 2 Bro. C. C. 220. See chap. XXIV. sect. 2. sub-sect. 9.
 
 332 Of Lapsed Legacies. [CH. VIII. 
 
 tied to his own legacy or proportional share. In this consists the 
 distinction between tenants in common and joint-tenants, and hence 
 ari<e the different results in regard to lapse. In the one case (as we 
 have seen) the death of one joint tenant before the testator will not 
 occasion a lapse ; but in the other, that accident will defeat the le- 
 gacy, or the share, of the deceased in the aggregate fund. 
 
 Accordingly in Man v. J\lan,(s) the testator, after giving his per- 
 sonal estate to his wife for life or during widowhood, bequeathed it 
 to .#., B., C. and D. his brothers and sisters, in equal shares. 13. 
 and C. died before the testator, and it was determined by Sir Joseph 
 Jekyll that those two shares lapsed. 
 
 So in Bagwell v. Dry(t) the residuary personal estate of a testator 
 was given to four persons, share and share alike. One of them died 
 during the testator's life, and Lord Macdesfield held, that the pro- 
 portion of the deceased legatee was undisposed of. Again 
 
 In Page v. Page,(u] the bequest of the residue was made to six 
 persons, " to. each of them a sixth part." One of whom having died 
 before the testator, Lord King decided that his share was lapsed. 
 
 Also in Owen v. Owen,(x) a testatrix gave the surplus of her estate 
 to her nieces Mary and Elizabeth, daughters of Mr. and Mrs. Owen, 
 in equal shares. One of the nieces died before the testatrix, and 
 Lord Hardwicke determined that her share was undisposed of. 
 
 The last case was followed by Peat v. Chapman,(y) in which a 
 similar decision was made by the Master of the Rolls. 
 
 And in Jlckroyd v. Smithson,(z) the testator, after giving distinct 
 legacies' to a number of persons, also gave them his residuary estate 
 (consisting of personal property, and the produce from the sale of his 
 real estate) " in proportion to their several and respective legacies 
 therein to them bequeathed." Two of those legatees died before 
 the testator, and their legacies and shares of residue were determin- 
 ed by Lord Thurtow to have lapsed for the benefit of the heir and 
 next of kin of the testator. 
 
 The rule relating to interests lapsed by the deaths of legatees 
 during the life of the testator, equally applies to cases where a tes- 
 tator revokes by codicil the benefit intended for one tenant in com- 
 mon, and makes no other disposition of it. And although he con- 
 firms the will, still the other tenants in common cannot make a title 
 to the revoked share ; because by the wiH they took no interest in 
 such share, but only in their own several proportions ; therefore, 
 since the confirmation of the will had no other effect, than to make 
 it speak from the date of the codicil, no new estate or interest hav- 
 ing been given to other tenants in common, it necessarily follows, 
 that, as they, neither under the will or codicil, can take the revoked 
 interest, it is undisposed of, and falls into the residue. In order to 
 exemplify this proposition 
 
 Suppose a testator having children to give his residuary estate 
 among two of his sons and one daughter, as tenants in common, and 
 afterwards to add a codicil revoking the residuary bequests to his 
 daughter, but confirming his will in all other respects. Notwith- 
 
 () 2 Stra. 905. - (*) 1 P. Will. 700. () 2 P. Will. 489. 
 
 f*) 1 Atk. 494. (y) 1 Ves. sen. 542. infra, Chap. XXIV. sect. 2 sub-sect. 9. 
 
 (z) 1 Bro.C. C. 503.
 
 SECT. IV.] Of Lapsed Legacies. 333 
 
 standing this act of confirmation, the daughter's proportion of the 
 residue would be lapsed for the reasons before mentioned. So it 
 was determined by Lord Northington in Cheslyn v. Cresswell, and 
 by the House of Lords on appeal from his decree. (a) It appears 
 from the report of the arguments of counsel, that this was the point 
 upon which the decision in the House of Lords was founded, al- 
 though it be observable from the same report that the daughter died 
 before the testator. 
 
 1. A distinction however must be noticed between cases where 
 a legacy is given to a class of persons in general terms as tenants in 
 common, as to the children of B , and those instances in which it 
 appears upon the face of the .will that particular objects at the date 
 of it were intended to take the property. In the latter we have seen 
 that the death of one of the legatees before the testator, or a revo- 
 cation of the bequest to him, will occasion a lapse, but it is not so 
 in the other, since it is presumed that those persons of the described 
 class, who should survive the testator, were the only objects of his 
 bounty ; so that if an individual answering the description of the be- 
 quest, and who, if living at the death of the testator, would have 
 been entitled to participate in the gift, happen to die before him, 
 that event will not, upon the foundation of the above presumption, 
 occasion a lapse of any part of the fund ; but those persons, answer- 
 ing the description at the period of the testator's death, will be en- 
 titled to the whole of it. This will be illustrated by the following 
 case : 
 
 In Joiner v. Francis,(b) the testator gave " to the children of his 
 late sister Mary Crowson 2000Z. to be equally divided among them." 
 His residuary estate he bequeathed in thirds, one. third to his brother, 
 another third to his sister Martha, and the remaining third he gave 
 "to the children. of his late sister Mary Croivson, equally to be di- 
 vided between the children of his brother S. Wiggington, his sister 
 Martha, and the children of his late sister Mary Crowson" When 
 the will was made Mary Crowson had three children, John, Eliza- 
 beth, and William, but William died before the testator, and it was 
 contended that one-third of a third of the 2000Z. and of the residue 
 bequeathed to the children of Mary Crowson, lapsed into the resi- 
 due by the death of- William in the life of the testator. But the 
 Court declared the contrary, and that those children of Mary living 
 at the testator's death were entitled to the 2000/. and the third of 
 the residue. 
 
 A case indeed of Martin v. Wilson,(c] is a decision contrary to 
 that of Viner v. Francis, which was not mentioned or referred to. 
 But upon principle it is conceived that the latter would be followed 
 in preference to the former. The one prevents a lapse without doing 
 violence to the testator's intention or the expressions in his will ; 
 whilst the other produces a lapse, by entertaining a construction 
 neither required by the description in the will, nor the clear inten- 
 tion of the testator. 
 
 2. Another exception to the rule of lapsing, in consequence of 
 one the legatees dying before the testator, occurs when there is a 
 
 3 Bro. Parl. Ca. 246. 8vo. ed. 2 Eden." 123. 5. C. 
 
 2 Cox, 190. 2 Bro. C. C. 658. S. C. (c) 3 Bro. C. C. 325. Ed. by Belt. 
 
 VOL. I. U U
 
 334 Of Lapsed Legacies. [Cn. VIII. 
 
 limitation over of the legacy to the survivors generally, or upon the 
 death of any of them under the age of twenty-one. In such in- 
 stances, it is settled that the limitation to survivors shall have effect 
 during the continuance of the testator's life; so that, in the first case, 
 if a legatee tenant in common die before the devisor, or if in the se- 
 cond, the legatee die in the testator's lifetime before attaining twen- 
 ty-one, or the happening of the event upon which the limitation over 
 is made to depend, the legacy will not lapse, but go to the survivors 
 under the express provision in the will. 
 
 Of the FIRST proposition the resolution or assent of the Court in 
 the case of Northey v. Burbage,(d] is an example. .#. bequeathed 
 5001. a piece to his grandchildren B. and C. and if either of them 
 died his share was to go to the survivor. B. died before the testator, 
 yet it was held that his share did not lapse but went to the other 
 grandchild. 
 
 So in Smith v. Pybus,(e] Lady Fletcher bequeathed a personal 
 annuity after the death of her father, to be equally divided between 
 her brother and sisters Charles and Catharine Pybus, and Martha 
 Briggs, " to them and their heirs or the survivors of them, in the 
 order they are now mentioned." Martha died before the testatrix, 
 and Sir William Grant, M. R. determined the bequest to be of a 
 perpetual annuity, over which the surviving legatees had an absolute 
 power of disposition; and that Martha's intended share went over 
 to her brother and sister under the limitation to the survivor. And 
 his Honour rejected the words, " in the order they are now mention- 
 ed," as unintelligible and inconsistent with the previous clear ex- 
 pressions in the will. 
 
 Of the SECOND proposition, the following authorities are instances: 
 
 In Miller v. Warreh,(f) the testator gave to the four children of 
 H. Miller 15001. a piece (naming them,) to be paid to sons at twenty- 
 one and to daughters at eighteen or marriage ; and if one or more 
 of them died before their legacies became due the same were to go 
 to, and be divided among, the surviving legatees. Mary, one of the 
 four children died during the life of the testator, and it is presumed 
 before attaining her age of eighteen or being married. The ques- 
 tion was, whether the 1500J. intended for her lapsed, or went to the 
 surviving children 9 And it was decreed that the survivors were en- 
 titled to it, the Court declaring, that should a legacy be given to A. 
 at twenty-one, and if he died before that period then to B. t although 
 A. died during the life of the testator, yet the legacy should go to B. 
 
 Also in Ledsome v. Hickman,(g) the defendant's testator gave 
 300Z. a piece to .#., B. and C. at twenty-one or marriage, and if any 
 died before, then to the survivor. B. died in the testator's lifetime. 
 The question was, whether the 300Z. lapsed, or went over to A. and 
 C.? And it was decreed in their favour. Again 
 
 In Perkins v. Micklethwaite,(h) one Micklethwaite having two 
 sons, Thomas and Joseph, and also two daughters, bequeathed 
 15001 to his younger son Joseph, and WOOL to each of his two 
 daughters ; and directed that if any of his three younger children 
 
 (d) Pre. Ch. 470. and see Barker v. Giles, 2 P. Will 280. 3 Bro. Parl. Ca. 
 104 8vo. ed. ( e ) 9 Ves. 566. 
 
 (/) 2 Vern. 207. (g) 2 Vern. 611. (A) 1 P. Will. 274.
 
 SECT. IV.] Of Lapsed Legacies. 335 
 
 died before twenty-one or marriage, his or her portion should go to 
 the survivors, and he gave his real estate to the eldest son charged 
 with those portions. One of the daughters died under age and be- 
 fore marriage, and then Joseph died under twenty-one and unmarried, 
 in the lifetime of his father, the testator, who lived to have another 
 son whom he named Joseph, upon which occasion he made a codicil 
 and confirmed his will, noticing that since the making of his will 
 another son was born to him, and he therefore gave 500J. a piece to 
 his son Joseph and his surviving daughter, over and above what he 
 had given them by his will. It being objected that by the death of 
 the first Joseph the portion of 1500/. intended for him lapsed. Lord 
 Cowper, Ch. said, it was improper to call it a lapsed legacy, because 
 it was a portion given over, and should take effect ; that the codicil 
 was a republication of the will, and amounted to a substitution of the 
 second Joseph in the place of the first, as if the testator had made 
 his will anew, and had written it over again, by which new will the 
 second Joseph must take ; and that the fixed intention of the testa- 
 tor appeared to be that Joseph should have more than his daughter, 
 whereas if the legacy of 1500Z. should be taken to be lapsed the 
 d aughter would have twice as much as Joseph. 
 
 The last case was followed by Willing v. Baine,(i) in which A. 
 bequeathed 2001. a piece to his children, payable at twenty-one, and 
 if any of them died before that age, then his legacy was to go to the 
 surviving children. One of the children died in .4.'s lifetime, and 
 upon a question whether such child's legacy lapsed or belonged to 
 the survivors, it was resolved by Lord King, Ch., that although the 
 legacy lapsed quoad, the deceased legatee, it was nevertheless well 
 given over to the surviving children. 
 
 The principle of the last authorities was adopted by Lord Thurlow 
 in Rheeder v. Ower.(k) In that case, the testator, Mitchell, directed 
 his trustees to invest his residuary estate in the funds, and to pay the 
 dividends to his five sisters (naming them) in equal shares, during 
 their lives, for their sole use and benefit ; and if any of them died 
 leaving issue, then the trustees were "to pay and transfer the share 
 of the residue (to which his sister so dying, was entitled at or before 
 her decease, to receive the dividends thereon) unto and among all 
 such children, or to such child of his deceased sister, equally at their 
 ages of twenty-one." One of the testator's sisters, named 'Jinn 
 Holdgate, died before him leaving children, the plantiffs, Rheeder 
 and Jennings, who attained twenty-one, and claimed one-fifth of the 
 residue, notwithstanding the words of the bequest to children, seem- 
 ed to exclude those of sisters dying during his life ; and against the 
 claim it was alleged, that in order to. enable children to take under 
 the will, they must be of such sisters as would be entitled to receive 
 the dividends for their lives, which a sister dying before the testator 
 was not. But Lord Thurlow thought that the plaintiffs were entitled 
 to the share of their mother, as an executory devise; and that in a 
 will so loosely drawn, it was more probable that such was the testa- 
 tor's intention than the contrary. 
 
 The cases which have been produced clearly establish, that when 
 legacies are given to persons as tenants in common, with a limitation 
 
 (i) 3 P. Will. 113. () 3 Bro. C. C. 240.
 
 336 Of Lapsed Legacies. [Cn. VIII. 
 
 to the survivors, upon the death of any of them under twenty-one, if 
 any of those persons happen to die under that age before the testator, 
 his legacy will not lapse, but survive to his companions, from the 
 effect of the will. The result, however, would be different, if the 
 legatee's death had taken place after he attained twenty-one, for the 
 reasons and upon the authorities mentioned in the last section. (I) 
 
 3. Instances indeed may occur, where legacies are given to per- 
 sons as tenants in common, with an executory bequest to the survi- 
 vors, that if two or more of the legatees shall die before the testator ; 
 so that it may be necessary to consider, whether the original shares 
 only, or the accrued as well as the original shares passed to the sur- 
 viving legatees. But it is settled, that where distinct legacies are 
 given to individuals in common, with a limitation to the survivors, 
 the original, and not the accrued legacies, will pass to the other 
 legatees; consequently, the latter legacies will lapse by the death 
 of the legatees, who would have been entitled to them, in the life- 
 time of the testator. Questions of-this nature depend upon the suf- 
 ficiency of the words made use of by the testators to embrace ac- 
 crued legacies or shares of accrued legacies ; and it has been decid- 
 ed, that the term " portion," or " share," will not include them. 
 
 Accordingly, in Perkins v. Micklethwaite,(m) distinct legacies 
 were given by the father to his youngest son and two daughters; 
 but if any of them died before twenty-one or marriage, his or her 
 portion was to go to the survivors. A daughter died unmarried, and 
 a minor; and then the son died under twenty-one, and without 
 being married. It was one of the questions, whether, upon the son's 
 death, the part of his sister's legacy, to which he would have been 
 entitled, if he had outlived the testator, passed with his original le- 
 gacy to the surviving daughter? And Lord Harcourt, Ch. deter- 
 mined in the negative, because there were riot words sufficient to 
 pass the accrued share. 
 
 In ex-parte West,(n] Lord Thurlow expressed an opinion, that the 
 word " share," would not pass an accrued interest under a limitation 
 to survivors; and that opinion was confirmed by the decree of Lord 
 Kenyon, M. R. in the same matter, in a suit instituted for the pur- 
 pose of obtaining the solemn decision of the Court upon the 
 question. 
 
 An exception to this rule of the lapsing of accrued interests, has 
 been determined to exist, where the legacies are not distinct ; but 
 an aggregate fund is bequeathed to persons in common, with a limi- 
 tation to survivors, and the testator's intention appeared from his ex- 
 pressions, to preserve the property in an aggregate state throughout 
 his dispositions of it. The general rule is disapproved of, as in most 
 instances, defeating the intention of testators ; but a court of equity 
 considers itself bound to follow it to the extent of its establishment. 
 In the present instance, BuUer, J. considered the rule to be inappli- 
 cable, and decided according to that impression. 
 
 The case alluded to is Worlidgev. Churchill,(o) in which Edward 
 JVorlidge devised to trustees all his real and personal estates, in 
 
 (/) Ante, p. 327. etseg. ( m ) i p. Will. 274. stated supra, p. 334. 
 
 (n) 1 Bro. C. C. 575. E<*. by Belt, and see Forrest. 124. 3 Atk. 79. 2 Ves. 
 jun. 534. 5 Ves.' 465. ( ) 3 Bro. C. C. 465.
 
 SECT. V.] Of Lapsed Legacies. 337 
 
 trust, to sell the former, and invest the clear surplus, and his personal 
 estate, in the funds for the benefit of his four children, Rosalba, the 
 plaintiff, Edward, Ililliam, and John Worlidge, to be equally di- 
 vided amongst them at twenty-one ; but if any died before that age, 
 his or their share or shares were to go to the survivors or survivor. 
 The testator also directed his trustees to apply the interest of such 
 trust money during the minorities of the legatees, for their support 
 and education ; and, if more than sufficient for that purpose, the 
 surplus was to be invested for their mutual benefit. And if all of 
 them died under twenty-one, before Mary Worlidge (to whom he 
 had given an annuity) the interest of the trust money was to be paid 
 to her. And after the decease of all, he gave the trust money to 
 other persons. John first died a minor, as is presumed, before the 
 testator; and William and Rosalba died under twenty-one, after 
 surviving the testator, leaving their brother the plaintiff, Edward, 
 who, as the survivor, claimed the whole fund, consisting as well of 
 accrued as of original shares. And Buller, J. decided in favour of 
 the claim ; first, 'because the present bequests were not given as dis- 
 tinct legacies, but as an aggregate fund ; and secondly, in conse- 
 quence of the testator's intention to keep it in that state, which he 
 manifested by applying the words " trust money" not to each child's 
 share, but to the whole fund. 
 
 The next subject proposed for consideration is 
 
 SECT. V. Lapsed Legacies when the bequests are made under 
 
 Powers. 
 
 The general rule of equity relating to lapses, is equally applica- 
 ble, whether the legacy be given under a will made by virtue of 
 donorship flowing originally from the testator, or whether it be given 
 under a. power created for the purpose; fpr, in the latter case, al- 
 though the legatee will take under the authority of the power, yet 
 he will not be considered as taking from the time of its creation, so 
 as to prevent a lapse occasioned by the death of the legatee before 
 the appointor, when the power is executed by will, and for the fol- 
 lowing reasons. The legatee does not take under the power solely 
 and exclusively, but under it and the will jointly. The will so made, 
 is to be construed and considered like all others. It is, therefore, 
 ambulatory, revocable, and incomplete, till the death of the testator; 
 consequently, no person can take under it, who does not survive 
 him. If, then, an appointee,- by will made under a general power, 
 die before the testator, his legacy will lapse in all such instances, as 
 it would do, if the legacy had been given out of the testator's own 
 property, over which he had absolute dominion. 
 
 Accordingly in Oke v. Heath,(p) Mrs. Smith was empowered, by 
 articles of settlement, entered into upon her marriage with William 
 Smith, to appoint by deed or will 40001. to such persons as were or 
 should be her next of kin, in the events of her dying before her 
 husband, and without leaving issue, both of which events happened; 
 Mrs. Smith executed her power by .will, appointing the 40001. to 
 her nephew, W. Gill, he paying out of it an annuity to his mother 
 for life. W. Gill died Before the testatrix. Lord Hardwicke de- 
 
 (/z) 1 Ves, sen. 135. 141.
 
 338 Of Lapsed Legacies. [Cn. VIII, 
 
 cided that so much of the fund as was appointed to Gill beneficially, 
 lapsed by his death, but not the mother's annuity granted out of it. 
 
 The last case was followed by that of the Duke of Marlborougk 
 v. Lord Godolphin,(q) in which the Countess of Sunderland was em- 
 powered by the will and codicil of her first husband, to appoint 
 30,000/. by deed or will among such of his children as she thought 
 proper ; a power which was reserved to the countess previously to 
 her marriage with a second husband. The countess, in exercise of 
 the power, appointed by will distinct parts of the fund to J. Spencer 
 and Lady Morpeth, two of Lord Sunderland's children, who died 
 before her; and the question was, whether their legacies did not 
 lapse in consequence of the happening of those events'? The solu- 
 tion of which question depended upon the legal effect of a will 
 made in execution -of a power. And the clearness with which Lord 
 Hardwicke expressed himself will apologize for the adoption of his 
 own words upon so material a subject. " I admit the principle, 
 that, when a person takes by execution of a power, whether it be 
 real or personal estate, it is taken under the authority of that 
 power ; but not from the time of the creation of the power. There 
 is no case that the relation shall go back for that which is quite of 
 another nature, and that is the point which must be contended for 
 here, that they must take by relation, so as to make them take from 
 the time of the creation of the power ; for which there is no autho- 
 rity, and that would be unreasonable. The meaning that persons 
 must take under the power, or as if their names had been inserted 
 in it, is, that they shall take in the same manner as if the power, 
 and the instrument executing it, had been incorporated in one in- 
 strument ; then they shall take as if all that was in the instrument 
 executing had been expressed in that giving the power. So it is in 
 appointments of uses. If a feoffment be executed to such uses as 
 the feoffor shall appoint by will; when the will is made, it is clear 
 that the appointee, cestui qm use, is in by the feoffment, but has 
 nothing from the time of the execution of the feoffment, so as to 
 vest the estate in him. The estate will vest in him according to the 
 nature of the act done, and appointment of the use, from the period 
 of the testator's death. This, therefore, is not a relation so as to 
 make things vest from the time of the power, but according to the 
 time of that act executing the -power. Not like the referring back 
 in case of assignment in a commission of bankruptcy, for that is by 
 force of the statute, and to avoid mesne wrongful acts." An obser- 
 vation which his Lordship applied to the reference of the due enrol- 
 ment of a bargain sale to the period of the execution of that instru- 
 ment. He, therefore, decided that the legacies to Mr. Spencer and 
 Lady Morpeth lapsed by their deaths before the testatrix. 
 SECT. VI. As to what persons will be entitled to the benefit of 
 
 lapsed Interests. And 
 
 ! Of legacies payable out of the personal estate. 
 When the lapse is of a general or specific legacy, it falls into the 
 general residue, and, consequently, belongs to the person entitled 
 to that fund by the gift of the testator. If, then, a residuary legatee 
 
 (?) 2 Ves. sen. 61. 73. and see Vanderzeev. jfclom, 4 Ves. 771 Surges v. 
 bwbey, 10 Ves. 319. 326.
 
 SECT. VI.] Of Lapsed Legacies. 339 
 
 be named, he will take the lapsed legacy in that character, (r) But 
 that nomination will not prevent his taking a lapsed bequest by 
 substitution, i. e. in the place of the deceased legatee, when the 
 testator shows his intention that the residuary legatee should so take 
 it, and there is no inconsistency between the characters of a resi- 
 duary and a particular or substituted legatee to prevent it. In fact, 
 the latter title may be more beneficial than the former, upon a defi- 
 ciency of assets to pay all the debts and legacies ; for as residuary 
 legatee, he can claim nothing until all debts and legacies are fully 
 paid; but as a particular or substituted legatee, his right to an 
 equality of payment with the rest is preserved ; so that, after rate- 
 ably abating with them, he is entitled to receive the remainder of the 
 legacy. () 
 
 An instance of a residuary legatee taking by substitution a gene- 
 ral legacy, and not as residue, occurred in the case of Rose v. Rose,(t) 
 in which F. Rose being domiciled in Scotland, and having ah only 
 daughter, Mary, devised to her all his real and personal estates, sub- 
 ject to debts and several legacies, one of which (a debt owing by his 
 brother James Rose) he gave to James's children equally ; directing 
 " the share of the deceased to fall and belong to his (the testator's) 
 heir under his will." Another legacy was given in trust for the wife of 
 James Rose; and one of 10002. to the testator's natural son, Bernard 
 Rose, "whom failing, to revert and return to his (the testator's) heir 
 undert his will." He also desired that at his wife's death 1 1,0002. three 
 per cent stock (in the names of the trustees of his marriage settle- 
 ment, to secure to his wife a part of her jointure) " should revert 
 and return to his heir under the will ;" to whom he further gave 
 10,OOOZ. sterling, free from all deductions. The will then declared 
 the gift of the 10,0002. to be in addition to the legacy of the stock; 
 and that in the event of a deficiency of assets- to pay legacies, his 
 daughter's fortune should not abate below 10,0002. unless she died 
 without heirs of her body ; and, in that case, the defect of asset was 
 not to prejudice the other legacies ; but that, any legatee dying be- 
 fore him, " his or her legacy should fall, accrue, and belong to his 
 heir before mentioned." Bernard Rose, the legatee of 10002., died 
 before the testator. And the question was, whether that sum lapsed 
 into and formed part of the residue bequeatued to Mary, or belonged 
 to her as a particular legatee by substitution in the place of Bernard"? 
 Sir William Grant, M. R., was of opinion, founded upon the lan- 
 guage and import of the will, that the testator intended to substitute 
 his daughter, by substantive and independent gifts, in the places of 
 the legatees who might happen to die before him. 
 
 But if a testator make no disposition of the residue, and appoint 
 an executor, then, although the executor be entitled to it at law ex 
 virtute ojficii ; and also in a court of equity, if there be no circum- 
 stance indicating the testator's intention to the contrary (a subject 
 considered in a subsequent chapter;) yet it seems not clearly settled 
 whether that Court will permit him to take lapsed legacies for his 
 own benefit. It may, however, be strongly urged, that the testator, 
 in giving the legacy, sufficiently showed his meaning, that his execu- 
 
 (r) Roberts v. Cooke, 16 Ves. 451. Leakev. Robinson, 2 Meriv. 393. and see 
 1 Ves. & Bea, 385. (s) See Chap. V. sect. 2 p. 253. (/) 17 Ves. 347. 352.
 
 340 Of Lapsed Legacies [Cn. VIII. 
 
 tor should not in that character be entitled to so much of his per- 
 spiial estate as was equivalent in amount to the bequest; and, con- 
 sequently, that the accident which produced the lapse should enure 
 to the benefit of the testator's next of kin.(w) 
 
 2. The same principle applies to residuary estates. Hence it fol- 
 lows, that if a sole residuary legatee, or one intended to take the re- 
 sidue in common with other persons, die before the testator, the lap- 
 sed share will belong to the testator's next of kin.(x) 
 
 3. When legacies are given-Out of freehold estates, and some of 
 them lapsed by the deaths of the legatees during the life of the tes- 
 tator; to whom these interests belong, has been a subject of litiga- 
 tion between his heir and devisee.' The first lias claimed them as in- 
 terests in land undisposed of by the will, and the second has made 
 title to them as parts of the estate which was devised to him. In the 
 settlement of these claims it is necessary to attend to, the distinction 
 between a beneficial devise of the estate to, or in trust for A. charged 
 with particular legacies, and a devise to a mere trustee to pay those 
 particular legacies; a devise of lands in trust to sell and pay lega- 
 cies generally, not being affected (as we have seen) by the death of 
 any legatee before the testator, if the whole fund be necessary to the 
 full discharge of the other bequests. (y] 
 
 In the first instance, as the estate is effectually devised to A. for 
 his own benefit, and he is substituted by the testator in place of his 
 heir, A. will be entitled to the" same benefits as the heir would have 
 been if no disposition had been made of the land. Upon which 
 principle it is firmly settled (as observed by Lord Alvanley in Ken- 
 nell v. Abbott. ,)(z) that if an estate be devised charged with legacies, 
 which fail, no matter how, the devisee shall have the benefit of them. 
 
 But this is not so in the second instance, where the estate is devised 
 to a mere trustee in trust to sell and .pay particular sums of money, as 
 to B.-, C. and D., which lapse by their" deaths before the devisor, and 
 no disposition is made of the extra produce: . For the heir is not 
 disinherited, and he is legally entitled to all such interests in the es- 
 tate as are not effectually disposed of; -consequently, those lapsed 
 legacies will sink into the land. for his benefit'.(a) 
 
 4. Questions have also arisen 'between the heir and residuary le- 
 gatee, and the heir and next of kin of the testator, in regard to the 
 right to lapsed bequests affecting the real estate -; where it and the 
 personal fund were blended and made one and the same for the pay- 
 ment of legacies ; and the surplus of the consolidated property was 
 either undisposed of r or bequeathed to A. singly, or to B. and C. as 
 tenants in common. 
 
 The solution of these questions depends upon previously ascertain- 
 
 (u) 1 Atk. 496. 18 Ves. 254, 255. Vide infra, Chap. XXIV. sect. 2. sub. 
 sect. 6. ' 
 
 (JT) Bag^vell v. Dry, 1 P. Will 700. Page v. Page, 2 P. Will. 489. Owen v. 
 Owen, 1 Atk.. 494, . Peat v. Chapman, 1 Ves. sen. 542. Bennet v. Batchelor, 
 1 Ves. jun. 63 Ackroydv. Smithson, 1 Bro. C. C.503. 515. Chesslynv. Cres&well, 
 3 Bro. Parl. Ca. 246. 8vo. ed. and Williams v.- Condi-, 10 Ves. 500. et -vide ante, 
 p. 331. et seq. ( y ) 17 Ves. 466, and see ante, p. 285. 
 
 (z) 4 Ves. 811. etvide Baker v. Hull, 12 Ves. 497. also, Ambl. 495. 1 Bro. 
 C. C. 61. 
 
 (a) 17 Ves. 466. and sufira, p. 285; See also Chap. XII. on the exoneration of 
 the real by the personal estate, and the next chap, sect, 1. et passim.
 
 SECT. VI.] Of Lapsed Legacies. 341 
 
 ing whether the testator intended to change the nature of his free- 
 hold property, and to impress upon it the character and quality of 
 personal estate to all intents and purposes. By this test alone were 
 all the cases determined which relate to the present subject. 
 
 If then a sale or charge of freehold property be directed to answer 
 particular purposes, and any of them fail by lapse in the testator's 
 life, we have seen that the heir will be entitled to the benefit of them, 
 because those interests are to be considered as so much land undis- 
 posed of. 
 
 But where the testator ordered his freehold estate to be sold, and 
 the proceeds to be added to his personal property, and directed both 
 to be applied indiscriminately in the payment of debts and legacies, 
 and then gave the surplus, as before mentioned, to A, singly, or to 
 B. and C. as tenants in common ; such a disposition has been con- 
 sidered, with other circumstances, a total conversion of the land into 
 money, so as to entitle A. or B. and C. to the benefit of lapses in 
 preference to the heir. (6) 
 
 The doctrine of conversion of real into. personal estate being of 
 frequent occurrence, and great nicety, it is presumed that no apolo- 
 gy will be necessary for devoting the ensuing chapter to the exclu- 
 sive consideration of so important a subject. 
 
 CHAPTER IX. 
 
 Of the Conversion of Real into Personal Estate. 
 THE person appointed by law to succeed to the undisposed free- 
 hold estate of his ancestor is the heir, so that his title being to the 
 whole, includes every part. 'Hence, if the estate, or any portion of 
 it, be not devised, or not effectually disposed of, it descends to, or is 
 a resulting trust to the heir. Questions, therefore, as to the heir's 
 title, may be reduced to three. First, whether he is wholly disin- 
 herited by the devise of the estate to a stranger, subject to particular 
 charges. Secondly, whether he is partly so disinherited, the estate 
 being devised merely to answer particular purposes. Or, thirdly, 
 whether the disposition of the property be such, as clearly to show 
 the testator's intention to change the nature of the fund, by convert- 
 ing it from real into personal estate, which is commonly described 
 as " a conversion out and out" In the first case, if the heir be so 
 wholly disinherited, the devisee will be entitled to the benefit of the 
 failure of any charges imposed upon it by the testator j since he is 
 substituted for the heir. In the second, if the estate is so devised, 
 so much of the estate, or of its produce, as remains, after the parti- 
 cular purposes are answered, will result to the heir, who will also be 
 entitled to the advantages arising from the lapse, failure, or illegality 
 of any of the purposes to which the estate was intended to be ap- 
 plied. And in the third case, if such intention on the part of the 
 testator be evident, what remains, will be money in the hands of the 
 persons to whom the surplus is given, unless they elect to take it as 
 
 (6) 4 Ves. 802. 810. And see the next chapter for details upon this subject ; 
 also Chap. XII. 
 
 VOL. I. X X
 
 342 Conversion of Real [Cn. IX. 
 
 land : and if any of the preceding purposes fail, it seems that, in 
 consequence of the absolute conversion of the land into personalty, 
 the residuary legatees will be entitled to the benefits. These sub- 
 jects, and others connected with them, will be separately treated of 
 in this chapter, and discussed under the following heads : 
 
 SECT. I. Right of the heir or. devisee to the surplus of real 
 estate subjected to, charged or devised for parti- 
 cular purposes, as well where a sale is, as where it 
 is not expressly directed, and their respective 
 rights to lapsed interests. 
 
 1. When the devisee is entitled to the surplus. 
 
 2. When the heir is' entitled to it. And 
 
 3. Of their respective titles to lapsed interests. 
 
 SECT. II. Right of the residuary devisees or legatees, to the 
 net produce from a sale of lands under the resi- 
 duary clause. 
 
 1. When the net proceeds will not pass, but result to 
 the heir. And 
 
 FIRST. When the residuary , bequest isin the 
 
 same will that devises the real estate. 
 SECOND. When it is contained in a codicil. 
 2. When the net proceeds will pass as personal es- 
 tateunder the residuary clause. 
 
 SECT. III. Right of the testator's executors and next of kin, 
 to the net produce from the sale of lands. 
 
 1 . Of his executors. 
 2. Of his next of kin. 
 
 SECT. IV. Right of the heir or of the devisees of Proceeds 
 from a sale of land to lapsed interests. 
 
 1 . Where the proceeds are given distinct from the per- 
 sonal estate. 
 
 2. Where the proceeds are given and blended with the 
 personal estate. 
 
 3. Title of surviving devisees to real proceeds lapsed by 
 the death of one or more of their companions. And. 
 FIRST. When the y originally take as joint tenants. 
 SECOND. When as tenants in common. 
 
 SECT. V. Right of personal representatives of devisee or lega- 
 tee of real proceeds, in preference to testator's heir. 
 SECT. VI. When Produce from sale of land, resulting to tes- 
 tator's heir, is to be considered land or money. 
 \.-When there is no disposition of the surplus. 
 2. When the residuary real proceeds are disposed of, 
 
 and part of them lapse and result to the heir. 
 ^.^-Ekction. 
 
 SECT. VII. When the devisees of the real produce, take it as 
 land or money.
 
 SECT. I.] into Personal Estate. 343 
 
 SECT. I. Right of the heir or devisee to the surplus of real 
 estate subject to, charged or devised for particular pur- 
 poses, as well where a sale is, as where it is not expressly 
 directed, and there respective rights to lapsed interests. 
 
 1. Of the devise of freehold lands for particular purposes, which 
 entitle the devisee of the estate, and not the heir, to the property, 
 after those purposes have been satisfied. 
 
 The reader will observe, that this first section embraces several 
 cases which are not strictly cases of .conversion, as the question of 
 conversion only arises where a sale is directed ; but it was thought 
 advisable to discuss those cases, where no sale is directed, inasmuch 
 as they are nearly allied to those which properly fall under conside- 
 ration in the present chapter. 
 
 When it appears, upon a fair construction of the will, that the per- 
 sons to whom freehold lands are given, subject to particular charges 
 or payments, were intended to take the estate beneficially after satis- 
 faction of those obligations, it is settled that the heir can claim 
 nothing as a resulting trust ; for he is disinherited by the disposition, 
 and the devisee is substituted for him, and entitled to the same pri- 
 vileges as the heir would have been, if the estate had not been be- 
 queathed. Hence the property, subject to the charges upon it, or 
 to such of them as take effect, will belong to the devisee,(a) as re- 
 marked in the concluding section of the last chapter. 
 
 But it must be noticed, that no general rule can be laid down, 
 as every case depends upon its own circumstances. (6) The only 
 fact to be ascertained is, whether it clearly appears, from a rational 
 construction of the will, to have been the testator's intention to 
 give the estate to the devisee, subject only to the demands he has 
 charged upon it. . t 
 
 In forming a judgment in such a case, courts of equity have con- 
 sidered it a material feature, when the estate was given directly to 
 the devisee charged with the payment of sums of money, or when it 
 was given to him in trust, to make such payments ; and upon the 
 following reasoning : that in the one instance, a trust being express- 
 ly created, fixes the character of a trustee upon the devisee, which 
 renders him accountable to the heir for so much of the inheritance 
 as is not wanted for the purposes of the will ; but in the other, since 
 a trust (if any) must be raised by implication, from a fair construc- 
 tion of the will, the intention of the testator is the chief guide; an 
 intention which must be clear, in order to counteract the effect of a 
 disposition, that prima facie imparts to the devisee the beneficial in- 
 terest in the estate. After these preliminary observations, we shall 
 commence our inquiries in considering 
 
 First. The effect of a devise of freehold property to a person to 
 sell to a particular individual, and where no express disposition is 
 made of the proceeds. 
 
 In Hill v. the Bishop of London,(c] Lord Hardwicke observed, in 
 reference to this subject, that " if J. S. devised lands to A. to sell to 
 B. for the particular advantage of B., that advantage was the only 
 purpose to be served, according to the testator's intention, and to be 
 
 (a) 4 Ves. 811. 12 Ves. 497. (6) 1 Atk. 620. (c) 1 Atk. 619.
 
 344 Conversion of Real [Cn. IX 
 
 satisfied by the mere act of selling, let the money go where it will ; 
 yet (said his Lordship) there was no precedent of a resulting trust to 
 the heir in such a case." It is not indeed probable, that there should 
 be a precedent to that effect ; since the devise upon the face of it 
 imports to be a devise of the estate to A. beneficially, with a direc- 
 tion (not an expressed trust) to sell it to B. The money, therefore, 
 of right, would belong to A. to whom the estate was given. 
 
 Upon the same principle, if A. devise lands to B. to sell for the 
 best price to C. or to demise them to him for three years at a par- 
 ticular fine, there would be no resulting trust to the heir, either 
 of the money produced from the sale, or of the reversion upon the 
 demise,(d) because the objects of the testator's benevolence were 
 A. and C. ; the former by a gift of the estate, and the latter in the 
 privilege of purchasing or accepting a demise of it. 
 
 The same reasoning applies 
 
 Secondly, to the devise of freehold lands to a person charged with 
 (not upon express trust to pay) debts and legacies, for in such case 
 the devisee (and not the heir) will be entitled to the surplus of the 
 real fund after payment of the debts and legacies(e) and to all advan- 
 tages from failures of any of the charges. 
 
 That this is well settled was stated by Lord Eldon in King v. Deni- 
 son,(f) in which he observed, that if A. devise to B. and his heirs 
 all his real estate charged with debts, although the disposition be 
 for a particular purpose, it is not the only one ; for the devise is of 
 an estate of inheritance, in order to give to the devisee the beneficial 
 interest subject to a particular purpose, and that where the legal in- 
 terest is given for a particular purpose, with an intention to impart 
 to the devisee of the legal estate the beneficial interest, if the whole 
 of the real fund be not exhausted in answering the particular pur- 
 pose, the surplus goes to the devisee, as it is intended to be given to 
 him. 
 
 That reasoning Lord Eldon found to have been adopted and acted 
 upon by Lord Hardwicke in Hill v. The Bishop of London,(g) a 
 case of which Lord Eldon expressed his approbation. In it one 
 Richard Smith, after charging all his worldly estate with his debts, 
 bequeathed his perpetual advowson ofBushey, and the glebe, profits, 
 and appurtenances, to his mother-in-law, Grace Smith, expressing it 
 to be his will and desire that . she should sell them to the fellows of 
 Eton College, or to the fellows of Trinity College in Oxford ; those 
 of Eton to have the preference ; but, if both refused, he directed the 
 advowson, &c. to be sold to the fellows of any of the colleges of 
 Oxford or Cambridge, who would give the most money for them. 
 The testator also gave to Mrs. Smith absolutely his other real estates, 
 and made her his residuary legatee and executrix. The question 
 was, whether the testator's co-heiresses or Mrs. Smith the devisee, 
 should present to the living, become vacant by the death of the tes- 
 tator ; the former insisting upon a resulting trust, and the latter 
 claiming the advowson, &c. as absolute devisee. Lord Hardwicke, 
 after the first argument, declared in favour of the co-heiresses, under 
 a conception that the devise was a trust in Mrs. Smith to sell the 
 
 1 Atk. 61 and see 2 Scho. & Lefroy, 545. (e) See Chap. XII. sect 1. 
 
 1 Ves. & Bea. 272. Baker v. Hall, 12 Ves. 497. S. P. (gfl Atk. 618.
 
 SECT. I.] into Personal Estate. 345 
 
 advowson according to the directions of the will ; and also for pay- 
 ment of the testator's debts ; after which, the surplus was a resulting 
 trust for the co-heiresses, to whom belonged the right of presenta- 
 tion as cestui que trusts. But upon a second argument, his Lord- 
 ship changed his opinion in favour of Mrs. Smith the devisee, for the 
 reasons before stated. 
 
 The last case seems to be an instance of a very clear manifesta- 
 tion of the testator's intention to give to Mrs. Smith, for her own 
 benefit, the advowson and its produce ; for, independently of the 
 circumstance that no express trust is declared, she appears upon 
 the face of the will to be the special object of the testator's bounty, 
 by the devise to her of an estate absolutely, and by his appointment 
 of her as residuary legatee and sole executrix. 
 
 In the case .of Rogers v. Roger s,(h] where a testator gave 5J. to 
 his heir, and appointed his dearly beloved wife sole heiress and execu- 
 trix of all his .real personal estates, to sell and dispose of at her 
 pleasure, and to pay his debts and legacies ; the question was, whe- 
 ther the wife was a trustee for the heir of the surplus real property 
 after payment of the debts and legacies'? And Lord King, Ch. de- 
 termined in the negative, because the legal effect of the devise was 
 to substitute the wife in the place of the heir, which, corresponded 
 with the intention of the testator appearing as well from the terms 
 of affection in which the wife was described, as in the gift of a le- 
 gacy to the heir. 
 
 So also in Lloyd v. Wentworth,(i} the devise was " all the residue 
 (of real estate) I give to my wife, to enable her to pay my debts, 
 legacies, and funeral expenses." The testator's heir contended, 
 that as the devise was to enable the wife to pay debts, &c. it was 
 merely a gift in trust ; so that, after those payments, the residue was 
 a resulting trust for him. But Lord Thurlow determined in favour 
 of the wife. 
 
 The reason of his Lordship's decree is clear, viz. the apparent 
 intention of the testator to give his wife the estate beneficially ; with 
 a charge upon it for payment of his debts, &c. The case, therefore 
 falls within the rule laid down by Lord Eldon, and before stated. (fe) 
 
 The principle which produced uniformity in the last determina- 
 tion cannol escape observation. We shall merely add one more 
 case of a very recent date. 
 
 In King v< Denison,(l) Frances Isaacson, after directing payment 
 of all her just debts, devised her real estate to her cousins, Mary 
 Altham and Arabella Isaacson, " subject to and chargeable with se- 
 veral annuities." The testatrix then gave her personal estate to 
 three persons, " subject to and chargeable with" her debts and the 
 legacies after bequeathed by her, and appointed them executors. 
 The annuitants being dead, the real estate was claimed by the tes- 
 tatrix's heirs, upon the ground of its being devised for particular 
 purposes, which having determined, they were entitled to the lands 
 as a resulting trust; but the devisees claimed the property as a be- 
 neficial devise subject to payment of the annuities. And Lord 
 
 (A) 3 P. Will. 193. and see Starkey v. Brooks, 1 P. Will. 390. stated infra, 
 p. 349. (0 Cited 2 Bro. C. C, 594. (fr) Ante, p. 344. 
 
 (0 1 Ves. & Bea. 260. 272, 276. 279.
 
 346 Conversion of Real . [Cn. IX. 
 
 Eldorfs opinion was in their favour; his Lordship observing, "that 
 the disposition \vas a devise in law for the purpose of giving the es- 
 tate, but with an ulterior purpose that the devisees should take it 
 subject to the annuities." 
 
 Lord Eldon also expressed an opinion in the above case, that if 
 the executors were to be considered trustees of the personal residue 
 from the effect of the words, "subject and chargeable with," as ap- 
 plied to that fund, the same words would not produce a similar re- 
 sult upon the real estate given to the devisees, although those words 
 were used in relation to both funds in the same will. " Does it fol- 
 low (said his Lordship) that the words * subject and chargeable' are 
 to have the same construction in both parts of the will 9 That is not 
 a consequence. I cannot infer from the construction which the tes- 
 tatrix giving these legacies has put upon those words, so much as to 
 deny them, as to the real estate, their ordinary construction (a mere 
 charge,) if there be no expressions, applicable to the devise of it, 
 equivalent in their effect to pare down the ordinary meaning of 
 those words ; and the construction must be the same, as if she had 
 expressly said, that the personal estate was to be subject to and 
 chargeable with the legacies, that she did not mean her executors to 
 take ; but that as to the personal fund they were to be trustees, 
 making no such, declaration as to the real estate."(ra) 
 
 The before mentioned authorities have proved a part of the obser- 
 vation made in- the beginning of this section, that a devise to A. sub- 
 ject to particular charges, is a beneficial disposition to him, and re- 
 pels the usual trust by implication of the estate for the heir, after 
 those charges have been satisfied ; but the remaining part of the ob- 
 servation alluded to remains for consideration; viz. that a devise to 
 A. upon trust to pay particular sums of money is not, in general, a 
 beneficial disposition of the estate in favour of A. but to him only 
 and solely to execute those purposes or trusts, leaving the surplus of 
 the property a resulting trust for the testator's heir at law. w Before 
 we proceed to produce authorities upon this subject, it is proper to 
 remark, that the fact of the word " trust" being or not being used 
 in the devise of the estate to A. is a mere circumstance in the case 
 to be attended to; for if the whole frame of the will create 'a trust, 
 for the particular purpose of satisfying which the estate is devised, 
 the law. is the same, although the word " trust" be not used.(w) 
 
 Thus in Buggins v. Yates,(o) A. devised his freehold estates to his 
 wife B. in fee, to be sold to pay his debts and legacies in aid of his 
 personal estate. There being no necessity to resort to the- land for 
 those purposes, the heir claimed them as a resulting trust, in oppo- 
 sition to the devisee. The Court was of opinion, that were lands 
 are devised to be sold, in aid of the personalty, for payment of debts 
 and legacies, and no sale is made. in consequence of the sufficiency 
 of the personal estate, a trust in the devisee for the heir was ckarly 
 implied. 
 
 But the intention to raise a trust must be clear, or the legal title 
 
 (m) 1 Ves. & Bea. 278. and see Randall v. Baokcy, Pre. Ch. 162. and Gibbs v. 
 Rumsbey, 2 Ves. "Sc Bea. 294. (n) 1 Ves, & Bea, 27.3. 
 
 (o) 9 Mod. 122.- And see Chitty v. Parker, 2 Ves. jun. 271. stated infra, sect. 
 3. sub-sect. 2.
 
 SECT. I.] into Personal Estate. 347 
 
 of the devisee to the absolute inheritance of the estate will prevail ; 
 as appears from the case of King v. Denison before stated. Yet al- 
 though the word " trust" be inserted in the will in the declaration of 
 a particular purpose, to which a sufficient part of the estate is to be 
 applied ; if the contents of the will manifestly show an intention that 
 the devisee was meant to take the estate subject to that purpose, he 
 will be entitled to it in preference to the heir. 
 
 An instance of this was considered to occur in the ease of Coning- 
 ham v. Mellish,(p} in which A. devised to his cousin Thomas Mel- 
 lish a dwelling-house to hold to him and his heirs, in trust to be sold 
 for the payment of debts and legacies within a year after the testa- 
 tators death ; and he appointed Mellish executor. Another cousin of 
 the testator was his heir, who claimed the residue of the messuage 
 after the debts and legacies were satisfied. But the Court, consist- 
 ing of the Lord's Commissioners Robinson and Hutchins, decided 
 that there was no resulting trust for the heir. 
 
 The following must have been the grounds of the decree, though 
 their sufficiency may be doubted. (</) First, equality of relation be- 
 tween the testator and his heir and devisee ; and, secondly, the pre- 
 ference shown to the latter in his appointment of sole executor, which 
 gave him the whole of the personal residue in exclusion of the former. 
 From these data the Court drew this conclusion : that Thomas, the 
 devisee of the real estate, was the chief object of the testator's boun- 
 ty; and that the testator could not intend any part of that estate to 
 result to his heir, since it might be attended with a consequence, 
 which would defeat his intentionun giving Thomas his personal es- 
 tate ; for as that fund was first applicable to pay debts and legacies, 
 if it were exhausted in so doing, Thomas would take nothing either 
 of the personal or real property, but the heir would take all. 
 
 We shall now produce an instance of devises of real estates upon 
 express trusts being held to take no beneficial . interest in the pro- 
 perty, but to be trustees of the undisposed surplus for the testator's 
 heir. 
 
 In the case of Southouse v. Bate,(r^ Mr. Southouse, after bequeath- 
 ing legacies (two of which of equal amount he gave to his executors 
 and trustees, A. and B., devised tov2. and B. " all his property, both 
 real and personal, upon special trust that they pay regular the fol- 
 lowing annuities." He then gave annuities,, and disposed of his 
 clothes and furniture, appointing A. andZ?. "their heirs, executors, 
 and administrators his executors, upon especial trust and confidence 
 that they devoted all his property, both real and personal, in pay- 
 ment of his debts, and all the legacies and annuities given by him 
 in trust to them. A. and B. claimed the residuary real and perso- 
 nal estates as beneficial devisees, and not in trust ; contending upon 
 the first part of the will, that as the trust declared was not at all ap- 
 plicable to real property, but only to a particular portion of the per- 
 sonal estate, the devise ought to be read thus : " I give and bequeath 
 to A. and B. all my property, both real and personal ; but as to my 
 funded property on this especial trust, &c.;" a construction, if ad- 
 missible, that would entitle A. and B. to the surplus of both funds 
 
 (/;) Pre. Ch. 31. 2 Vern. 247. 5. C. 
 
 ($0 1 Ball. 8c Beat. 544. (r) 2 Ves. & Bea. 396.
 
 348 Conversion of Real [Cn, IX. 
 
 as devisees for their own benefit. But Sir William Grant, M. R., 
 observed, that whatever was the ambiguity of the clause, it was re- 
 moved by the concluding one, which declared that the whole was 
 given in trust for the payment of debts, legacies and annuities ; so 
 that it was impossible for the devisees to take any part beneficially : 
 upon which his Honour decreed #. and B. to be trustees both of the 
 real and personal estates ; of the first for the heir, and of the second 
 for the next of kin. 
 
 Having stated the importance to be attached to the distinction be- 
 tween a trust being or not being expressed in devising an estate for 
 a particular purpose, we shall proceed to consider 
 
 2. The cases establishing the title of the heir to the residue of 
 real estates devised upon express trust for .particular purposes, after 
 those purposes have been answered, where the surplus is not dispos- 
 ed of, and the real and personal funds are kept distinct. 
 
 In Randall v. Bookey,(s) lands were devised to trustees in trust to 
 permit the testator's wife to receive the profits for life, and after- 
 wards to sell them, and to pay out of the proceeds 1501. to J. S., and 
 100Z. to one Randall (the testator's heir;) and the wife was ap- 
 pointed executrix, with a legacy. The heir claimed the surplus pro- 
 duce from the sale of the lands, and it was so decreed ; the Court 
 remarking, that the devise was in the nature of a mortgage, and that 
 the heir paying the legacies must have the land, although he had a 
 particular legacy out of it. 
 
 In the last case, it is obvious that no person could take the lands 
 subject to the legacies, except the heir. The devisees were pre- 
 cluded, as the estate was expressly given to them upon trust to an- 
 swer particular purposes. The executrix could not take the net 
 proceeds, as they formed no part of the personal residue, from which 
 even she was excluded by the gift of a legacy ; and as to the testator's 
 next of kin, there was no pretence for their claim, since the conver- 
 sion of the real fund was only partial, merely for the purpose of pay- 
 ing the two legacies. 
 
 The next case which presents itself is Hobart v. The Countess of 
 Suff"olk,(t) in which Serjeant Maynard devised to three persons all 
 his real estates upon the trusts after mentioned, viz. after the death 
 of his wife to convey part of them to Sir H. Hobart and Elizabeth 
 his wife for their lives and the life of the survivor, the remainder to 
 her first son, (afterwards to Sir John Hobart) for ninety-nine years, 
 if he so long lived, remainder to his issue male ; and also to convey 
 other part of his estates to his grand-daughter Mary Maynard, (af- 
 terwards Countess of Stamford) for life ; remainder to her issue male, 
 with a cross -remainder on the failure of issue male of either ; and he 
 made no disposition of the reversion in fee of either part of his es- 
 tates, which was claimed by the persons to whom the lands were 
 devised in trust; but the testator's heir insisted, that he was entitled 
 to it as a resulting trust, and so the Court decided. 
 
 The principle of the last case seems to be the same which govern- 
 ed those which preceded, viz. that the devisees could not claim the 
 estates beneficially contrary to the express terms of the devise, un- 
 der which they derived their title, the disposition to them being ex- 
 
 () ^' U ^ u< 10 " (0 2 Vern. 644. Ed. by. Raithby.
 
 SECT. I.] into Personal Estate. 349 
 
 pressly upon trust. (w) The Court therefore declared, that the tes- 
 tator did not intend the devisees of the legal inheritance to take the 
 lands in preference to his heirs, if Sir JohnHobart and Lady Stam- 
 ford, both died without issue male. 
 
 In Wych v. Sir John Packington,(x) a case determined on appeal 
 to the House of Lords, Sir Herbert Perrot bequeathed to his dear 
 wife and executrix, a rent-charge of 200/. a year, to be received by 
 her, her executors, administrators, and assigns, out of part of his real 
 estates ; but upon special trust and confidence that she, his executrix, 
 her executors, &c. might be supplied with money out of the rents 
 and profits for payment of all his debts and legacies : for which pur- 
 poses he gave to his said executrix, her executors, &c. a lease for 
 thirteen years of the said rent-charge, to begin within six months af- 
 ter his death. The testator then gave to his wife and executrix/or 
 her own benefit all his lands in the county of Hereford, for life, in 
 augmentation of her jointure. .- The question was, whether the rent- 
 charge was a beneficial devise to the wife or solely given to her for 
 payment of debts and legacies in aid of the personal fund"? And 
 the Lords confirmed the first decree,(y) pronounced in the cause, 
 which declared, that the rent-charge was not a beneficial devise to 
 the wife, but that there was a resulting or implied trust for the heir 
 after the discharge of such of the debts and legacies as the personal 
 estate should be deficient in satisfying. 
 
 The grounds of the last decision appear to be these : 1st, that the 
 devise was not made to the wife in her private character, but as ex- 
 ecutrix; whence an inference arose that the only motive for the grant 
 was to answer the purposes of the will : 2dly, that such inference 
 was reduced to certainty by the declaration of the testator, that the 
 devise of the rent-charge was made upon special trust to pay debts 
 and legacies. And 3dly, from the consideration, that what the tes- 
 tator intended for his wife beneficially, he so declared ; as in the 
 instance of the devise in augmentation of her jointure ; to which may 
 be added the circumstance of the testator postponing the commence- 
 ment of the rent-charge until six months after his death, which he 
 could not reasonable be supposed to have done in consistency with 
 an intention, that it was to be for his wife's use ; but such postpone- 
 ment is quite consistent with the construction of the grant being 
 purely made in aid of the personal estate for the payment of debts 
 and legacies. 
 
 The following is not merely an authority, that a devise upon trust 
 of lands to pay debts and legacies does not preclude the heir from 
 so much of the estate, as remains after those purposes are satisfied ; 
 but also, that if one of the legacies be given to him, such circum- 
 stance alone will not alter his right; upon the principle, that no 
 disposition having been made of the residuary real estate, the heir 
 takes it by gift of law, and not in consequence of the testator's in- 
 tention. 
 
 Thus in Starkey v. Brooks,(z] Philip Starkey devised his lands to 
 
 f ) 1 Atk. 620. 
 
 (jc} 3 Bro. Parl. Ca. 44. 8vo. ed. and see Hattiday v. Hudson, 3 Ves. jun. 210. 
 stated infra, p. 353. (y) 3 Bro. Parl. Ca. p. 47. 
 
 (z) 1 P. Will. 390. Randall v. Bookey, stated supra, p. 348. S. P. 
 
 VOL. i. Y y
 
 350 Conversion of Heal [Cn. XL 
 
 two persons, in trust, that they or the survivor should sell them for 
 the best price, and pay with the produce his debts, legacies, and fu- 
 nerals. Two of the legatees were his cousins and co-heirs. The 
 lands exceeded by 500Z. the debts, &c. and the question was, whether 
 that sum belonged to the devisees in trust, or to the co-heirs? And 
 Lord Cowper decided in favour of the heirs, notwithstanding it was 
 objected that the legacies given to them implied that they were 
 meant to have nothing more. 
 
 The case of Stonehouse v. Sir John Evelyn,(d} which will be next 
 stated is one of a particular kind. The question in it was between 
 the testator's heir and particular legatees ; and is an authority for 
 the proposition, that where real estate is given in trust to pay par- 
 ticular legacies, with a gift of other legacies should the proceeds 
 from the sale of the land exceed the amount of the former, suppose 
 by 500Z. if these proceeds exceed the first class of legacies, but do 
 not amount to 5001. the excess will belong to the heir as a resulting 
 trust, and not be applicable to a proportional discharge of the se- 
 cond class of legacies. The principle is this, that the gift of the lat- 
 ter legacies being made to depend upon the event of the real estate 
 producing an excess of 5001.; as that event did not happen, the real 
 excess was undisposed of, and necessarily resulted to the heir ; the 
 devisee in trust having no right to it, as appears from the preceding 
 cases. 
 
 In Stonehouse v. Sir John Evelyn, (the case last mentioned,) Lady 
 Wych being seised in fee of a rent-charge of 38Z. 16*. devised it to 
 Thomas Dalton in trust, to pay several annuities (which had deter- 
 mined,) and then three legacies to .#., B. and C., amounting to 8001. 
 But if the rent-charge sold for 1000J. the testatrix gave additional 
 legacies of 100J. each to B. and C. The suit was instituted by A. 
 for a sale of the rent-charge, and payment of his legacy. And the 
 question was, to whom the surplus would belong, if it exceeded 8001. 
 but was less than 1000J.? It was claimed by B. and C. in part pay- 
 ment of their further legacies. But Sir Joseph Jekytt, M. R. said, 
 that as nothing was declared in the will to that effect, to admit such 
 a claim would be to make a ne\v will ; wherefore, as to all the money 
 arising from the estate to be sold, and not disposed of by the testa- 
 trix, there must be a resulting trust for the heir ; so that if the rent- 
 charge be sold for more than 80QL but under 1000Z. the difference 
 must be paid to the heir at law. 
 
 The next case we shall mention is Sherrard v. Lord Harbo- 
 rough,(b)'m which Bennet, Earl of Harborough, devised his manors, 
 advowsons, &c. to persons in trust to pay out of the rents and profits 
 an annuity of 1000/. to the then Earl, the testator's eldest son and 
 heir, for life, and to invest the surplus rents to accrue, whilst his son 
 lived, in the purchase of lands to be settled, after his son's death, 
 upon his (the son's) first and other sons successively in tail, with 
 remainder over. One of the questions was, in whom the right of 
 presentation to the advowsons belonged during the life of the testa- 
 tor's heir the then Earl. And the Court declared the right to be in 
 the Earl as heir of the testator. 
 
 The reasons for that opinion seem to be these ; the devisees of 
 (a) 3 P. Will. 252. See Chap. XX, s. 13. (A) Ambl. 165.
 
 SECT. I.] into Personal Estate. 351 
 
 the legal estate had no claim, as the property was given to them 
 upon trust. The heir was in the same condition as to his title under 
 the will, since nothing was given to him but a rent-charge for life ; 
 and the persons in remainder were excluded, as nothing was limited 
 to them until after the death of the heir. Hence it followed that 
 the right of presentation during the heir's life was a fruit of the 
 estate undisposed of, which necessarily resulted to him. 
 
 The reader is here referred to the cases of Robinson v. Taylor, 
 Chitty v. Parker, Hill v. Cock, and Dixon v. Dawson, stated in 
 section 3 of this chapter,(c) and which are instances of the heir's 
 being entitled to the surplus produce of the sale of lands. 
 
 3. After discussing the title of the heir and devisee to the undis- 
 posed surplus of real estate, remaining after the purposes to which 
 it was liable were satisfied, what remains for consideration is, their 
 rights to such of the interests' affecting the lands as lapse or fail by 
 the deaths of parties or otherwise. 
 
 FIRST, with respect to the title of the devisee. 
 
 It is a consequence from what has been detailed in regard to the 
 rights of the heir and devisee to the undisposed surplus of real 
 estate, that when the devisee takes the estate as a beneficial gift, 
 he will be entitled to all such charges affecting it as a lapse, (d) 
 or fail. 
 
 Thus in Jackson v. Hurlock,(e) Sir John Hartopp devised in fee 
 to Sarah Marsh his manors of B. and C., subject to and charged 
 with the payment of any sum of money not exceeding 10,OOOZ. in 
 favour of such persons as he, by a written memorandum, should 
 direct. He afterwards appointed 6000Z. part of the sum, to charities. 
 Such appointment being void, the question was, whether the heir 
 or devisee should have the benefit of the failure "? And Lord Nor- 
 thington decided in favour of the latter. 
 
 Yet a case may occur, in which the estate of the devisee may be 
 charged with a sum of money that cannot be applied according to 
 the intention of the testator, as when the object is a charity; and 
 notwithstanding the failure, still the devisee will be under the ne- 
 cessity of paying the money to which the heir will be entitled as so 
 much real estate undisposed of. Suppose, then, a devise of land 
 to be made to A. he paying 1000Z. to the testator's executors, which 
 sum, forming part of the testator's residuary estate, is bequeathed 
 to charities ; the bequest of the money for such a purpose would be 
 void; yet the devisee of the land would be obliged to pay it, because 
 the condition requiring him to make the payment to the executors, 
 and not to the charities, is good, and must be performed. The 
 payment of the sum is the price and consideration of the devise, 
 and as the money is so much real estate undisposed of, there is no 
 person but the heir can make a good title to it.(y) 
 
 SECOND, With respect to the title of the heir. 
 
 It only remains to be observed upon this subject, that as the heir 
 is entitled to every interest in freehold estate which is originally un- 
 disposed of, or becomes so by accident, if the devise be made in 
 
 (c) P. 360, &c. infra. (d} 4 Ves. 811. 
 
 (e) Ambl. 487. 495. 2 Eden. 263. S.C. See also Wright v. Row, 1 Bro. C. C. 
 61. and 4 Ves. 810. (/) Arnold v. Chafiman,'l Ves. sen 108.
 
 352 Conversion of Real [Cn. XI. 
 
 trust to pay legacies, so that the devisee is merely a trustee, and not 
 entitled to the estate beneficially, and some of the legacies are void 
 as to the land, in being given to charity, or lapse by the deaths of 
 legatees during the life of the testator, or before the legacies be- 
 come due, they will sink into the estate for the benefit of the heir, 
 the person entitled to the estate, subject to the charges ;(g) but 
 with this qualification, that if the devise be in trust to pay legacies 
 generally, then (as has been. noticed) the lapse or other failure of 
 any of them, will not accrue to the heir, if the whole fund be ne- 
 cessary to discharge the remaining legacies; but that if the devise 
 be in trust to pay particular sums of money to individuals, then 
 the heir will be entitled to such of them as fail by lapse or other- 
 wise. (A) 
 
 The conversion of the real estate, so far as previously considered, 
 has been merely to the extent of answering particular purposes ex- 
 pressed by the testator, and where no disposition was made of the 
 surplus of the lands. We shall now proceed to inquire 
 
 SECT. II. What will and will not amount to a disposition of the 
 produce from a sale of the real estate, under the terms of the 
 residuary clause, upon which the right of the heir or resi- 
 duary legatee, to them depends. 
 
 In discussing this subject, it will be convenient first to consider 
 
 1. When the produce from .the sale of lands will not pass under a 
 residuary bequest of the personal estate, whether the disposition be 
 made by will or codicil. And 
 
 FIRST, When the residuary personal bequest is contained in the 
 will devising the real estate. 
 
 Where a testator gives his real and personal property in trust to be 
 sold for particular purposes, and does not specifically dispose of the 
 surplus proceeds, but makes a general residuary bequest of his per- 
 sonal estate, such a disposition will not include the produce from the 
 sale of the land, in the absence of a contrary intention expressed or 
 inferred from the will, and for this reason; the surplus of the real 
 estate is not made personal ; it, therefore, does not fall within the 
 terms of the bequest. The conversion of the lands into personalty 
 is merely to answer particular purposes, which, when performed, the 
 residue, continuing land and being undisposed of, necessarily results 
 to the heir. So that if A. devise his freehold and personal, or his 
 freehold estate to B. in trust to sell and apply the proceeds in pay- 
 ment of legacies, making no further disposition of the real produce, 
 and then bequeath the residue (of his estate, (i) or of his personal 
 estate t6 C., the net surplus of his real estate will not pass to C. for 
 the reasons before mentioned, but it will' be a resulting trust for the 
 heir of the testator. To prove this the following authorities are pro- 
 duced: 
 
 In Berry v. Usher,(k) James Plomer devised all his real and per- 
 sonal estate to John Usher^ in trust to pay the rents of the one and 
 
 3 Bro. C. C. 355. (A) 17 Ves. 466. and sufira, p. 285. 
 
 (i) Dirty v. Legard,3P. Will. 22. in note. Ed. by Cox, and 1 Bro. C. C. 514. 
 (A-) 11 Ves. 87.
 
 SECT. II.] into Personal Estate. 353 
 
 the interest of the other, to Susannah Berry for life, and then to sell 
 both funds j out of the produce of which he gave several legacies, 
 and appointed Usher and Berry joint residuary executrix and ex- 
 ecutor. The question was, whether so much of the proceeds of the 
 real estate, as remained after the purposes of the will were satisfied, 
 belonged to the heir or residuary legatees'? And Sir William Grant, 
 M. R. determined in favour of the heir. 
 
 The foundation of the decree was, that the conversion of the real 
 into personal estate was merely co-extensive with the purposes ex- 
 pressed in the will, viz. to pay the legacies ; so that the surplus, con- 
 tinuing land, could not pass as personal estate under the appoint- 
 ment of residuary executors. 
 
 The last case was shortly followed by a similar decision of the 
 same Judge in Wilson v. Major ;(l] a case, however, in which the 
 terms of the residuary clause might have included the net proceeds 
 of the real estate, had not a contrary intention in the testator appear- 
 ed. There, Thomas Major devised a copyhold estate to his wife 
 Dorothy, in trust to sell and invest the proceeds upon real or govern- 
 ment .securities; the interest of which he gave to her for life. He 
 further bequeathed to her all his effects for her support, &c. The 
 copyhold estate was not sold ; and the wife being dead, the question 
 was, whether it belonged to the testator's heir, or to the persons 
 claiming under the wife? which depended upon this, whether the 
 capital to be produced from the sale of the estate passed to her un- 
 der the residuary clause 1 ? And Sir William Grant determined, that 
 the heir was entitled to it, upon the principle that the testator could 
 not intend to give to his wife, by a residuary bequest in form properly 
 importing a disposition of personal estate only, an absolute interest 
 in a fund produced from the sale of real property, when he had pre- 
 viously bequeathed to her the annual income of it merely for life. 
 The copyhold estate, therefore, being undisposed of, necessarily re- 
 sulted to the customary heir. 
 
 Similar to the last was the case ofHalliday v.Hudson,(m) where 
 Robert Halliday, after appointing his nephew Hudson sole executor 
 of his will in trust to execute it in the following manner, devised to 
 him all his freehold and leasehold estates, except a house which was 
 subject to a life-interest, and the reversion of which he gave to his 
 nephew and heir, R. Halliday, for life, remainder over. He then gave 
 Hudson his personal estate, " to enable him to discharge all his debts 
 and legacies ;" and bequeathed two legacies to his female servant, 
 which he considered as adebt, and declared that his situation was such 
 as obliged him to make a will, otherwise his heir would take all his 
 lands, and his debts remain unpaid, of which he specified two, amount- 
 ing together to WOOL, and directed his executor to pay them, with a 
 few others. The rest and residue he gave to his executor before named. 
 The testator made a codicil, naming Halliday an executor with Hud- 
 son; gave him 100 guineas, and appointed him joint residuary lega- 
 tee with Hudson. There were only two witnesses to the codicil, so 
 that it could not affect the freehold estate. Halliday, the heir, 
 
 (/) 11 Ves. 205. and see 8 Ves. 485-495. 
 
 (m) 3 Ves. jun. 210. and see Wychv. Packington, sufira, p. 349. also, Kellett v. 
 Kellett, 1 Ball. & Beat. 533. 5. P.
 
 354 Conversion of Real [Cn. XI. 
 
 claimed the land subject to the debts, which was resisted by Hudson, 
 on the ground that it passed to him by the residuary clause. But 
 Lord Rosslyn decided in favour of the heir ; and that, under the par- 
 ticular circumstances, the beneficial interest in the freehold estate 
 did not pass with the residuary personal property. 
 
 The grounds of his Lordship's opinion were these : that the words 
 "rest and residue," were, in the abstract, of ambiguous construction ; 
 but that the sense in which they were used was explained by the 
 context ; for it appeared that the only motive of the testator in af- 
 fecting his real estate was to secure the payment of his debts, and 
 the land was devised to Hudson as executor, and upon express trust 
 for that purpose ; which, with the circumstance of the testator evinc- 
 ing no disinclination to his heir, nor intention to disinherit him, 
 were held sufficiently demonstrative of the testator's meaning not to 
 include the surplus of his real property in the residuary disposition, 
 but merely to create a charge upon that fund, in favour of his cre- 
 ditors, in aid of his personal estate. 
 
 The same reasoning produced the decree in Maugham v. Ma- 
 *on,(n) where Charles Prior devised his freehold chambers in Lin- 
 coln's Inn to trustees, in trust to sell and apply the produce towards 
 payment of legacies ; and after making some specific bequests of 
 stock, and giving two pecuniary legacies, he bequeathed the residue 
 of his personal estate, of what nature or kind soever, after payment 
 of his debts, legacies, and funeral expenses, to his trustees, their ex- 
 ecutors, &c. upon trust to convert it into ready money, and invest it 
 in the purchase of real property, to be settled by them to the sepa- 
 rate use of his niece Cecilia Maugham for life, remainder to her first 
 and other sons successively in tail male, with remainders over. The 
 personal estate was more than sufficient to pay debts, legacies, fu- 
 neral, and testamentary expenses; and' Cecilia being dead, leaving 
 a grandson, the question was between him, claiming under the resi- 
 duary clause the produce from a sale of the chambers, and the tes- 
 tator's heir ; the former claiming them as personal property, and 
 therefore as bequeathed, and the latter claiming them as real pro- 
 perty, and not passing by the residuary clause ; upon the principle, 
 that the conversion was directed for the sole purposes of discharging 
 debts and legacies in aid of the personal fund ; which being suffi- 
 cient to pay all those obligations, the chambers or their produce 
 could not pass under a bequest merely disposing of personal estate ; 
 and of that opinion was Sir William Grant, M. R. who thus express- 
 ed himself upon the general question : " This is a general bequest 
 of the residue of the testator's personal estate ; and the question is, 
 what was meant to be included under that description. Properly 
 speaking, nothing is the personal estate of a testator that was not so 
 at his death. He may certainly so express himself, as to show that 
 something else was intended ; but where there is nothing but a di- 
 rection to sell land, with application of the money to a particular 
 purpose, and a subsequent bequest of the rest and residue of the 
 personal estate, I know of no case in which it has been held that the 
 surplus, after the particular purpose is answered, forms part of the 
 
 (n) 1 Ves. & Bea. 410. and see Hutchesonv. Hammond, 3 Bro. C. C. 129-143. 

 
 SECT. II.] into Personal Estate. 355 
 
 personal estate, so as to pass by the residuary bequest. The mere 
 disposition of the residue of personal estate can never solve the 
 question, what is personal estate *? The clause may be so conceiv- 
 ed, as to show the sense in which those words are used ; but here is 
 nothing more than those words, unaccompanied with any thing ex- 
 planatory of the sense in which they were used." 
 
 So in Dunnage v. White,(o) David Lewis devised and bequeathed 
 to his trustees a freehold estate at B., upon trusts therein mentioned ; 
 and after giving some legacies, he devised and bequeathed the resi- 
 due " of his estate and effects whatsoever and wheresoever, of what 
 nature or kind soever," to his said trustees and executors, upon trust 
 to sell his household goods and stock in trade ; to collect all the 
 debts owing to him, and to divide them into six parts, which he gave 
 to his nephews and nieces. The question was, whether a freehold 
 farm at C. passed by the residuary clause. And Sir Thomas Plu- 
 mer, M. R., determined, that although the real property passed to 
 the trustees under the general words in the beginning of the clause, 
 yet, as there was no trust declared of it, nor any intention to be col- 
 lected from the will, that the testator meant to comprise and bequeath 
 it as personal estate, and the trusts in the residuary bequest merely 
 regarded the personal fund, it did not pass by the residuary clause ; 
 and his Honour declared in favour of the testator's heir. 
 
 SECOND, when the residuary bequest is inserted in a codicil to the 
 will. 
 
 The same observations apply to a general disposition of the per- 
 sonal residue by a codicil duly attested, to pass lands, as to such a 
 disposition contained in the same will, devising the real estate to be 
 sold to answer special purposes, and not specifically disposing of the 
 net proceeds ; so that if a testator devise his real and personal 
 estates, or his real estate, in trust to be sold to answer particular 
 objects, and omit to make any disposition of the produce ultra those 
 objects, other than in bequeathing his residuary personal estate by 
 a codicil sufficiently attested to pass lands, that produce will not be 
 included in such a general bequest ; since what remains of the 
 money arising from the sale, after answering the special purposes 
 to which it was applicable, is land, and not personal estate, and there- 
 fore not within the terms of the bequest. 
 
 So also, if the codicil were not duly attested to pass freehold pro- 
 perty, and the produce from its sale, after answering the purposes 
 of the will, be expressly disposed of by the codicil ; yet that pro- 
 duce cannot pass by such instrument, because the conversion of 
 the real into personal estate being merely partial, viz. to answer 
 particular purposes, the net proceeds do not loose their original 
 quality, but continue land ; they therefore can only pass by a will 
 or codicil attested as the law requires(/>) 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 <? Sir W. Grant declared that the intention of the 
 testator was sufficiently manifest from the will to postpone the vest- 
 ing until his debts had been paid. And in order to ascertain the 
 period when they might have been discharged, an inquiry was 
 directed. 
 
 A third exception to the rule of immediate vesting may arise 
 where a testator has plainly and with certainty expressed his inten- 
 tion that the legacies shall not vest until his property has been sold 
 or realized, and got in by his executors, or be laid out in a pur- 
 chase. For, if a testator think proper, whether prudently or not, 
 to say distinctly, showing a manifest intention, that his legatees, 
 general or residuary, shall not be entitled to the property unless 
 they live to receive it; nor to the produce of his real estate until a 
 sale, nor to lands until they be purchased, there is no law against 
 such intention, if clearly expressed. But if the words admit of such 
 meaning not being imputed to the testator, it will not be imputed 
 
 () 1 Meriv. 422. et vide Smalt v. Wing, 3 Bro. Parl. Ca, 503. 8vo. ed. and 
 stated 1 Meriv. 428.
 
 SECT. II.] payable out of Personal Estate. 381 
 
 to him, as has been before noticed. (x) If, however, the intention 
 be clear, it is the duty of the executors or trustees to call in the 
 property, sell the estate, and invest the produce in a purchase for 
 the benefit of the persons interested, and with all due diligence; 
 since no discretion is left to them.(y) And whether they have done 
 their duty, will be inquired into by the Court, as in the case last 
 stated. 
 
 Thus in Elwin v. Elwin,(z) after stated,(a) the direction was to 
 sell and divide the produce of real estate among five persons, " at 
 such time as the sale should be completed, in case they were then 
 living:" and Sir W. Grant, M. R. was of opinion, that the interests 
 were contingent until a sale, without the fault of the trustees, was 
 or might have been made ; and in order to ascertain that fact, he 
 directed an inquiry. 
 
 A fourth exception must be made out of the positive rule appli- 
 cable to the vesting of legacies, where the gift of the legacy and 
 the time of payment are in terms distinct, when the period for pay- 
 ment is contingent, as upon the marriage, or the taking of holy 
 orders of the legatee ; for in neither of those instances, will the 
 legacy vest before the happening of the contingency, as we have 
 seen it would have done, had the time of payment been certain. 
 The distinction is founded upon the following reasoning. It must 
 be inferred, that where the time is certain, as when the legatee 
 attains the age of twenty-one, the testator merely postponed the 
 payment of the legacy in consideration of the legatee's unfitness to 
 manage his affairs prior to that period; but when the event annexed 
 to the payment, may or may not happen, it is to be presumed, that 
 the expectation of its taking place, was the sole motive, and there- 
 fore of the essence of the bequest. (6) 
 
 Accordingly, in Mkins v. Hiccocks,(c) the bequest was of 200Z. 
 to Eliz. Hiccocks, to be paid at the time of her marriage, or within 
 three months afterwards, provided she married with the approba- 
 bation of, &c. The testator also gave to Elizabeth an annnity, 
 until that event took place ; but she died without ever having been 
 married, after having attained the age of twenty-one. The question 
 was, whether Elizabeth took such a vested interest in the legacy, as 
 was transmissible to" her administrator 1 ? And Lord Hardwicke de- 
 termined in the negative ; upon which occasion he remarked, that 
 in the common cases of legacies to be paid at the age of twenty- 
 one, there was a certain time fixed, not to the thing itself, but to 
 the execution of it; and the time so fixed must necessarily arrive. 
 But that when the time annexed to the payment was merely eventual, 
 and might or might not come, and the person died before the con- 
 tingency happened, his Lordship could find no instance in the 
 court, where it had been decided that the legacy should be paid at 
 all events. 
 
 It may be concluded from these observations, that when the 
 event, upon which a legacy is directed to be paid, is uncertain as 
 to its ever taking place, the legacy will not vest previously to the 
 
 (x} Ante, p. 378. and see 11 Ves. 497. (y} 11 Ves. 498. (r) 8 Ves. 547. 
 (a) Infra, sect. 5. () Godolph, Orph. Leg. 452. Swinb. pt. 4. sect. 17. p. 267. 
 (c) 1 Atk. 500. 
 VOL. I. 3 C
 
 382 Of vested Legacies [Cn. X. 
 
 happening of that event; and that it is immaterial in this respect, 
 whether the gift and the time of payment be in form distinct, as in 
 the last case, or whether there be no gift, except in the direction 
 for payment of the legacy, as in the cases below referred to;(d) 
 since, in each instance, the taking place of the event, is a condition 
 precedent to the vesting of the legacy, according to the maxim that 
 dies incertus in testamento conditionemfacit. 
 
 It seems, however, that this maxim is not without exception, for 
 it must yield to the intention of testators. That intention was con- 
 sidered by Lord Alvanley in the following case, to be sufficiently 
 apparent, attending to the subject of bequest, which was a residue, 
 the ages of the legatees, and the manner of the gift.(e) 
 
 The case refered to, is Booth v. Booth,(f) in which Mr. Bragge, 
 having two great-nieces, both of age, named Phoebe and Ann Booth, 
 devised the residue of his estate to trustees, in trust, to place it out 
 at interest, and pay the annual produce to Phoebe and Ann Booth, 
 until their marriages, and immediately after their respective mar- 
 riages, to assign to them respectively their several shares, Phoebe, 
 after surviving the testator, died without ever being married, and 
 the question was, whether, notwithstanding Phoebe never married, 
 she took a vested interest in her moiety, which was transmissible at 
 her death to her personal representatives, one of whom was her sis- 
 ter Ann, and unmarried, and also her residuary legatee'? Lord 
 Alvanley, after great consideration, and a full review of the authori- 
 ties upon the present subject, determined, that, as this was a residue, 
 and the marriages required were annexed to the times of payment, 
 and not to the gifts of the legacies, Phoebe took a vested interest in 
 her share, to which Ann, as her residuary legatee, was immediately 
 entitled, although Ann could not claim her own original share pre- 
 viously to marriage ; his Lordship observing, that the Court had never 
 accelerated the payment, and that an interest might be vested and 
 disposable, but not tangible, in the meantime, a provision which 
 might be wisely intended for the benefit of the legatee. 
 
 In the last case, it was contended that marriage was not merely 
 annexed to the payment of the shares, but "also to the gifts of them, 
 so as to make the marriages of the grand-nieces an indispensable 
 preliminary to the vesting an interest of their proportions. But 
 Lord Alvanley considered the terms of the devise, as equivalent to 
 the testator declaring a trust of the residue for the grand-nieces, 
 with a direction to pay to them the interest until they married, and 
 then to assign the principal ; that it was not merely a gift of the in- 
 terest till marriage, stopping there, and after marriage, a gift of the 
 capital, for it was clear that the testator considered the principal to 
 have been immediately given, and therefore spoke of it as " the 
 shares" of the legatees of the residue, the possession of which they 
 were to receive when they severally married ; thus distinguishing 
 between the gift of the residue, and the time and event when the 
 
 (d) Garbut v, Hilton, 1 Atk. 381. Elton v. Elton, 3 Atk. 504. Hemmings v. 
 Munckley, 1 Bro. C. C. 304. Knight v. Cameron, 14 Ves. 389. Malcolm v. 
 O'Callaghan, 2 Mad. 349. 
 
 (e) See Bird v. Hunsdon, 2 Swanst. 342. also Jones v. Mackiltoain, 1 Russ. 
 C. C. 220. (/) 4 Ves. 399.
 
 SECT. II.] payable out of Personal Estate. 383 
 
 possession of it was to be delivered. Lord Alvanhy, in the above 
 manner having attempted to prove that the marriages of the legatees 
 were conditions subsequent, not precedent, to the vesting of the pro- 
 perty, arid in addition, after remarking how improbable* it was that 
 the testator should not have disposed of the residue in the event of 
 his grand-nieces not marrying, if he had not intended to bequeath 
 to them the absolute interest in it, proceeded to show that the 
 authorities Garbut v. Hilton, Atkins v. Hiccocks, and Elton v. 
 Elton (before referred to) were inapplicable to the present case, 
 since none of them were dispositions of residue, and the marriages 
 in those instances were required to be had with consent. It was 
 under those circumstances, and on the ground of the bequest being 
 of a residue, to persons of maturity, a circumstance relied upon by 
 him, as also upon the words of the devise, that his Lordship declared 
 the present to be a case to which the maxim dies incertus in testa- 
 mento conditionem facit could not be applied. 
 
 The last case must not be considered as an authority, that in ge- 
 neral a residuary bequest will vest before the event happens upon 
 which it is given. It proves quite the contrary. The whole tenor 
 of Lord Mvanley's argument shows that the gift of a residue upon a 
 contingency, or where there is no gift, but by a direction to transfer 
 it from and after or at a given event, the vesting will be deferred 
 till the event has happened, unless from particular circumstances (as 
 in the last case) a contrary intention can be collected from the will. 
 And in conformity with this distinction, Sir W. Grant determined 
 in Leake v. Robinson,(g) that a residuary disposition of real and 
 personal estate, upon trust to assign and transfer to such children as 
 shall attain the age of twenty-five, with benefit of survivorship among 
 them, did not vest before the legatees attained that age. 
 
 SECT. III. When there is no express gift of the legacy previ- 
 ously to the time appointed for its payment. (h ) And, 
 
 FIRST. When the legacy is contingent from the effect of condi- 
 tional words. 
 
 In the beginning of this chapter it was noticed that legacies given 
 to persons payable or to be paid&t or when they attained twenty-one, 
 vested the interests in the funds in the legatees, which entitled their 
 personal representatives to the property, although they (the legatees) 
 died before arriving at those ages, upon the principal that the gift of 
 the legacies was distinct from the periods appointed for their pay- 
 ment. And it is to be observed, that the words paid and payable 
 are considered so material, that, if they be omitted, and the bequests 
 made to the legatees, as, if, provided, in case of, or when they attain 
 twenty-one, those expressions will, without being controlled by the 
 context of the will, constitute the times of payment as of the essence 
 of the bequests ; and consequently, the legatees can take no vested 
 interests until they attain twenty-one. We shall, therefore, proceed 
 to give instances where those words were held to postpone the vest- 
 ing until the legacies became payable, beginning with the word "at." 
 
 In Smell v. Dee,(i] the bequest was of 100/. a-piece to the two 
 
 (g) 2 Meriv. 363. 384. 
 
 (A) See Batsford v. Kebbel, 3 Ves. 363. and Sansbury v. Read, 12 Ves. 75. 
 
 (0 2 Salk. 415.
 
 384 Of vested Legacies [Cu. X. 
 
 children of J. S. " at the end of ten years next after the testator's 
 death." The legatees died before the expiration of the ten years. 
 Lord Cowper held the legacies to be extinct, and said, " that wher- 
 ever the time is annexed to the legacy, and not to the payment of it 
 (as in the present case,) if the legatee die before the day of pay- 
 ment, the legacy is lapsed." 
 
 So in Onsloiv v. South,(k) the testator being possessed of consi- 
 derable personal estate in Jamaica and in England, bequeathed as 
 follows : " I give to J. S. now under the custody of R. D. 20001. at 
 the age of twenty-one years, to bepaid by my executors in England." 
 J. S. died under twenty-one, but, having attained the age of eigh- 
 teen, he bequeathed this legacy to the defendant South; the validity 
 of which disposition depended upon the question, whether J. S. 
 took a vested interest in the money before the age of twenty-one. 
 And the Lord Chancellor determined that the legacy did not pass to 
 the defendant, since J. S.'s interest in it was not vested, but contin- 
 gent ; and his Lordship remarked, that the word " now" was merely 
 descriptive of the condition of the legatee, and that the word " paid" 
 was only applicable to the persons 'by whom the money was to be 
 satisfied. 
 
 Also in Cruse v. Barley,(l) where the testator gave to his eldest 
 son Christopher Banson, 2001. at his age of twenty-one. Christo- 
 pher died under twenty-one, and it was determined that the legacy 
 never vested in him ; as the age was annexed to the gift, and not to 
 the payment, and consequently, his personal representative could 
 not be entitled to the money. 
 
 Since a bequest to A. at twenty-one will not, as has been shown, 
 vest in him before he attains that age, as the gift and the payment 
 of the legacy are indivisible ; so neither will a legacy given to A. 
 " if" he attain twenty-one, vest at an earlier period. For until the 
 event happens, that which is grounded upon it cannot take place. 
 The word is strictly conditional ; and according to the civil law 
 (which supplies the ecclesiastical courts and courts of equity with 
 most of their rules in the construction of legacies,) a bequest so ex- 
 pressed would not vest the interest in the legatee prior to the age of 
 twenty-one. (m) 
 
 The word provided is also a conditional term ; so that, if a bequest 
 were made to B. " provided" he attain twenty-one, the legacy will 
 not vest in him before he arrives at that age. 
 
 Thus in Atkinson v Turner,(n) the testator gave two-thirfls of 
 three-eighths of his joint stock and trade to his grandson, Richard 
 Turner, provided he should attain the full age of twenty-one, with 
 remainder over if he did not live to that period. Richard died under 
 twenty-one ; and the question was, whether his administrator was 
 entitled to the profits which accrued from the death of the testator 
 to that of his own ; which depended upon the circumstance whether 
 he took a vested interest in the legacy during minority. And the 
 Master of the Rolls determined in the negative ; considering, that 
 
 (*) 1 Eq. Ca. Abr. 295. pi. 6. (/) 3 P Will. 20. 
 
 (m) Dig. Lib. 36. tit. 2 s,ec. 22. and see Brownsivord v. Edwards, 2 Ves. sen. 
 243. 248. Denn\. Bagshain^ 6 Term. Rep. 512. 1 New Rep. C. P. 325. Co. 
 Litt. 204. 3 Ves. 735. 
 
 (rc) 2 Atk. 41 and see Garbut v, Hilton, 1 Atk. 381. and 14 Ves. 392. '
 
 SECT. II.] payable out of Personal Estate. 385 
 
 by the words of the will nothing vested in the legatee, since he did 
 not attain the age of twenty-one. 
 
 The last case is peculiar in this respect, that it was the bequest of 
 a partnership and the profits of a trade. But the Court said, that 
 was of no consequence, for the more general the rule was made, so 
 much the better; it being very dangerous to run into niceties, to 
 distinguish from it any particular case, as that must necessarily oc- 
 casion uncertainty and confusion. 
 
 Similarly to the expressions before considered, the words "in 
 case" import contingency. Suppose then a legacy be given to JL 
 in case he marry with consent, or in case he attained twenty-one ; or 
 to be paid to him in case he live to that age, and not otherwise. 
 Jl's marriage with consent, or his arrival at twenty-one, must pre- 
 cede his taking a vested interest in the bequest. 
 
 Accordingly in the case of Elton v. Elton,(o] where the testator 
 gave to his grand-daughter, Anna Elton, 1500Z. to be at her dis- 
 posal, in case she married with consent, &c. Lord Hardwicke held, 
 that marriage was a condition precedent to the vesting of the lega- 
 cy ; observing, that whether a testator said, " in case she marry, I 
 give, or, I give in case she marry" made no difference ; for in both 
 instances, marriage is annexed to the substance of the devise. 
 
 And in Knight v. Cameron,(p) the bequest was of 1000Z. to 
 Frances Douglas, to be paid to her as soon as she attained twenty- 
 one ; and in case she should live to attain that age, and not other- 
 wise. Sir W. Grant observed, it was impossible to say that this 
 was not a condition precedent either to the payment or the vesting. 
 
 Much diversity of opinion has existed upon the proper construc- 
 tion of the word "when." Some persons have considered the ex- 
 pression as denoting a precedent condition, annexing the time or ac- 
 tion to the substance of the gift ; while others have interpreted the 
 word as solely indicative of the testator's intention to mark the pe- 
 riod, at'which his legatee should have the possession and full benefit 
 of the bequest, and not to make the living of the legatee at the time, 
 essential to the legacy taking effect, Lord jilvanley in May v. 
 Wood,(q) was of the latter opinion ; and determined that a bequest 
 to t#. and B. to be equally divided between them when they should 
 attain twenty-one vested in them at the death of the testator. His 
 Lordship made the decision.without regard to the effect of the words 
 " equally to be divided," which being synonimous with the words 
 " to be paid," appear sufficient, according to the rule stated in the 
 first section, to have imparted vested interests to the legatees at the 
 death of the testator. However, the case of May v. Wood, may be 
 considered a determination, that if a legacy be given to A. when he 
 attains twenty-one, the interest will vest in him, and be transmissible 
 to his personal representative at his death under that age. 
 
 The above decision of Lord Alvanley was carefully and maturely 
 considered by Sir William Grant in Hanson v. Graham.(r] And 
 although that case did not require his Honour to determine it against 
 the principle upon which Lord Jilvanley professed to decide the 
 case of May v. .Wood, yet so well satisfied was he that such prin- 
 ciple was erroneous, as to induce him to declare, that had there been 
 
 (o) 3 Atk, 504. (/O 14 Ves. 389. (?) 3 Bro. C. C. 471 (r) 6 Ves. 239.
 
 386 Of vested Legacies [Cn. X. 
 
 no other circumstances in the case then under his consideration, but 
 his opinion had been requested in regard to the vesting or not vesting 
 of the legacies which were given " to B., C. and D. when they re- 
 spectively attained their ages of twenty-one or days of marriage," 
 he would have decided that they did not vest in the legatees be- 
 fore the happening of one of those events. His Honour, upon the 
 proposition, stated in the report of May v. Wood to have been laid 
 down by Lord Mvariley, viz. " that all the cases for half a century 
 upon pecuniary legacies had determined the word when not as denot- 
 ing a condition precedent, but as only marking the period when the 
 party should have the full benefit of the gift, except something ap- 
 peared upon the face of the will to show that his bounty should not 
 take place, unless the time actually arrived,"(s) observed, that no 
 case had determined the word when, as referred to a period of life, 
 standing by itself, and unqualified by any words or circumstances, 
 to denote merely the time at which it was to take effect in posses- 
 sion, but to be a word of condition, denoting the time when the gift 
 was to take effect in substance. 
 
 His Honour's observations must be confined to testamentary dis- 
 positions of personal property, which are regulated by the rules of 
 the civil law : for it seems to be settled, that if freehold estate be de- 
 vised to A, when he. shall attain twenty-one, A. will take an imme- 
 diate vested interest in the subject, whether the devise be immediate 
 or in remainder. (t) 
 
 By the civil law, the words "when" an^ " if" are of the same 
 import in speaking of an uncertain event. Both are words of con- 
 dition annexed to the very gift of the legacy, when unexplained by 
 the context of the will.(w) The construction is the same in courts 
 of equity, which adopt the rules of the civil code upon the present 
 subject. 
 
 Accordingly, in Stapleton v. Cheales(x}. it was stated by counsel, 
 and agreed to by the Court, that if a legacy be given to a person 
 when he shall attain the age of twenty-one years, and the legatee 
 die during minority, the bequest is lapsed, and shall not go to his 
 executors or administrators^; a proposition, which Sir William 
 Grant declared, in Hanson v. Graham, that he did not find contra- 
 dicted by any authority. 
 
 Agreeably therefore with the civil law, and with our own found- 
 ed upon it in personal bequests, as admitted in the case of Stapleton 
 v. Cheales, it may be -reasonably concluded that a bequest to a per- 
 son when he shall attain twenty-one, is contingent during his infan- 
 cy, so as not to entitle his personal representative to receive it if 
 he die before twenty-one (y}. 
 
 But all these and other similar words of condition may be so ex- 
 plained and controlled by the context of the will, apnot to prevent 
 the legacies from vesting before the happening of the events, 
 upon which they are made 'payable. In such instances, the inten- 
 tion of testators will predominate over technical words and expres- 
 
 (s) 3 Bro. C. C. 474. 
 
 (0 Doev. Moore, 14 East, 601. and see 1 Maul. & Sehv. 334. and Mac/tin v. 
 Reynolds, 3 Brod. & Bing. 121. ' (w) Dig. Lib. 36. tit. 2, sect. 22. 
 
 (a?) Pre Ch. 317. and see Grant's case, stated 10 Rep. 50 a, andCro. Car. 435. 
 (y) 9 Ves. 230. 1 Burr. 227.
 
 SECT. III.] payable out of Personal Estate. 387 
 
 sions, when it is declared, or appears from a sound rational con- 
 struction of their wills. It may, therefore, be useful to consider 
 some of the cases, when such words and expressions weredeprived 
 of their natural import, and which will be attempted under the fol- 
 lowing title : 
 
 SECOND. When legacies will vest at the testator's death, not- 
 withstanding they be given in words purporting to constitute the 
 gifts and times of payment of them, one and the same. 
 
 In the construction of wills the intention of testators is the great 
 object to be ascertained, and, when discovered, it will always pre- 
 vail, if agreeable to the rules of law. Hence, although the terms 
 of bequeathing a legacy be such, as, if unexplained by other parts 
 of the will, would prevent it from immediately vesting ; yet, if they 
 be coupled with circumstances showing that a condition precedent 
 to its vesting was not intended, but that the words importing a con- 
 dition were only meant to denote the period when the legacy was 
 to be received or enjoyed, the sense is put upon the words which 
 the will requires (z}. Consequently the words if, when, &c. may 
 or may not be conditional according to circumstances. Instances 
 of their conditional import have been given, and examples of their 
 not being so considered now remain to be produced. There are 
 some general rules which may be guides in these cases, one of 
 which is, 
 
 1. When the period of payment or enjoyment of the fund is de- 
 ferred until the legatee attain twenty-one, and the first gift of it is 
 made to him when or after he shall attain that age, but in the mean- 
 time the property is given to a parent, guardian or trustee, for the 
 legatee's benefit ; the words " when" or " after," which import a 
 condition precedent to the vesting of the legacy, will not be per- 
 mitted to produce that effect; on the contrary, they will be con- 
 sidered as merely descriptive of the time when the legatee was to 
 be let into the possession of the fund, and then according to the 
 rule mentioned in the first section, the interest in the legacy will 
 vest at the death of the testator ; and, if the legatee die before 
 twenty-one, his personal representative will be entitled to the 
 money. The principle is this ; since the whole interest in the fund 
 is given in one way or the other to and for the benefit of the legatee, 
 it could not be the testator's intention to make it contingent 
 whether the legatee should have the absolute inteftest. That inte- 
 rest is split into two parts ; till one period it is given to the parent, 
 guardian, or trustee ; and at the other it is given to the legatee. 
 The reason why it was not given sooner to the legatee, was from 
 regard to his convenience, as it could not be conveniently given to 
 a person under age. Hence it is apparent that the conditional 
 words were merely annexed to the payment, not to the gift of the 
 legacy (a). The following authorities are produced in support of 
 these remarks, commencing with those cases where the interest of 
 the legacies was given for the maintenance of the legatees until 
 the money became payable. 
 
 It is settled that, although there be no gift of a legacy previous 
 to the period appointed for its payment, yet, if the intermediate in- 
 
 (z) See Chap. XIII. sect. 1. (a) 9 Ves. 230.
 
 388 Of vested Legacies [Cn. X. 
 
 tei'est be given to the legatee, or be directed to be applied for his 
 maintenance or education, such circumstances will prima facie have 
 the I'lfect to vest the legacy ; and for this reason ; as no interest could 
 accrue to the legatee before the time appointed for payment of the 
 principal, the testator's intention in giving such interest must be 
 presumed to have been, to give the capital in all events to the le- 
 gatee, and to have allowed him intermediate interest as a recom- 
 pence for the forbearance of the capital(ft). 
 
 Thus in Fotiereau v. Fonereau,(c) the bequest was of 1000Z. to 
 Claudius Fonereau, when lie should have attained the age of twenty- 
 five. The testator empowered his -executors and trustees to place" 
 the money at interest, which he directed to be applied at their dis- 
 cretion for the education of Claudius, as also part of the principal to 
 put him apprentice, and the remainder to be paid to him when he 
 should have attained the age of twenty-five, and not before. Clau- 
 dius having died under that age, the question was, whether his 
 personal representative was entitled to the legacy ? which depend- 
 ed upon this ; whether he took a vested interest. And Lord Hard- 
 wicke decided in' the affirmative. 
 
 Had the disposition in the last case stopped at the conclusion of 
 the first sentence, doubtless, Lord Hardwicke would have deter- 
 mined against the vesting of the legacy. His Lordship, however, 
 rested his decision upon the subsequent words controlling the word 
 when, as it \vould have operated standing alone. For when the 
 testator proceeded to give interest for the education of the legatee, 
 and a power to the trustees to apply any part of the principal as an 
 apprentice fee with the legatee, and gave the remainder of the 
 capital to him when he should attain the age of twenty-five, it was 
 clear upon the w r hole will, that nothing was, or was intended to be, 
 postponed by the conditional term when, except the payment of the 
 money(d). 
 
 So in Hoath v. Hoath(e), the testator gave 1001. to Thomas 
 Hoath at his age of twenty-one, and directed the intermediate in- 
 terest to be paid to his mother for his maintenance. Thomas hav- 
 ing died under twenty-one, the question was, whether this was a 
 vested legacy *? And Lord Thurlow determined in the affirmative, 
 in consequence of interest having been given for the benefit of 
 Thomas, before his legacy became payable. 
 
 This principle^'was acknowledged by Lord Kenyan, M. R. in 
 Walcott v. Hall(f). In that case, John Pearce, bequeathed to his 
 god-son, the plaintiff, Thomas JValcott, 501. to be paid at twenty- 
 one or marriage, and directed the money to be placed at interest 
 in the name of his executor, who was to apply such interest towards 
 the maintenance and education of Thomas ; but if Thomas died 
 before twenty-one or marriage, the testator gave the legacy to his 
 own executor, in trust for the poor of Stoke; and after disposing 
 of his residuary estate, he appointed the defendant Hall executor, 
 who having distributed the residue and retained the legacy of 50/. 
 became a bankrupt, and obtained his certificate. Thomas Walcott, 
 
 (6) 2 Ventr. 342. Stafiletonv. C/ieales, Pre. Ch. 318. Sounders \. Earle, 2 
 Chan Rep. 190. (c) 3 Atk. 645. (d) 6 Ves. 245. (e) 2 Bro. C. C. 4. 
 
 (/) Ibid. 305. and see 2 Meriv. 386.
 
 SECT. III.] payable out of Personal Estate. 389 
 
 the legatee, attained the age of twenty-one ; and it was one of the 
 questions, whether he had a claim upon the executor for the 50Z. 9 
 which depended upon this, whether Thomas took a vested interest 
 before twenty-one, that might have been proved under the commis- 
 sion ; for if he had, then his right was barred by the certificate. 
 And the Master of the Rolls was of opinion, that the legacy vested 
 in Thomas previously to his attaining twenty-one, which might 
 have been proved under the commission, and was therefore barred 
 by the certificate. And his Lordship remarked, that the gift of in- 
 terest always vested personal legacies. 
 
 In conformity with these authorities, Sir W. Grant decided the 
 case of Lane v. Goudge(g), in which the testatrix being possessed 
 of 20251 three per cent, consols, bequeathed to her sister Naomi 
 Ivy, 301. yearly for life, to be paid out of the three per cent, consols, 
 and she gave all the interest that remained, after payment of the 
 30i. to James Lane, for his second daughter to be born, (she being 
 christened Zipporah Ivy] for her education, until she arrived at 
 twenty-one ; and after she attained that age the testatrix bequeath- 
 ed to her such interest absolutely. The testatrix also gave the an- 
 nuity of 30Z. after the death of Naomi Ivy, to James Lane, until 
 his same second daughter attained twenty-one, and after she arrived 
 at that age, the testatrix bequeathed to her the annuity for ever. 
 James had a second daughter, whom he christened Zipporah Ivy, 
 and she died intestate, under the age of twenty-one. Her father 
 nevertheless claimed a transfer of the bank annuities, on the ground 
 that his daugeter took a vested interest in them, to which he was 
 entitled as her legal personal representative, and so Sir W, Grant 
 determined. 
 
 With respect to the first bequest, there could be little doubt of 
 Zipporah having taken a vested interest in it, since the dividends 
 to accrue during her minority were given to her father as a trustee 
 for her, and for her education, which showed that the legacy was 
 meant to pass to her instanter, with a postponement of tire posses- 
 sion until she attained the age of twenty-one. And in regard to 
 the second bequest, although it was not expressed to be given to 
 her father for her, or for her education, as in the first, an omission 
 founded probably in accident ; yet supposing that omission incapa- 
 ble of being supplied, and the father therefore entitled to the an- 
 nual dividends from the death of Naomi during his daughter Zip- 
 porah's minority ; still as Zipporah would take a vested interest in 
 remainder in those dividends, to commence in possession, from her 
 age of twenty-one, her father, in his own right, and as her personal 
 representative, became absolutely entitled to the whole of the bank 
 annuities at her death (Naomi being then dead,) and consequently 
 to a transfer of them for his own use and benefit. 
 
 It is to be remarked, that where the interest of the fund is so given 
 as to vest the legacy before the time of payment, that construction 
 will not be prevented by the insertion of dubious expressions. 
 
 Thus in Dodson v. Hay,(h) Mr. Wilmot bequeathed to the chil- 
 dren of his sister the whole of his real and personal estates, directing 
 that all the children should be educated with the yearly interest c/f 
 
 (#) 9 Ves. 225. (A) 3 Bro.C. C. 404. 409. Ed. by Belt. 
 
 VOL. i. 3D
 
 390 Of vested Legacies [Cn. X. 
 
 whatever portion of his estate might fall to each respective child's 
 lot or share ; and that such portion should not be otherwise claimed 
 or inherited, directly or indirectly, until the said children arrived at 
 the age of twenty-two years, whether married or single. One of the 
 children, a daughter, died before attaining that age, and her share 
 was claimed by her administrator, upon the ground that she took a 
 vested interest in it at the death of the testator, and the Court deter- 
 mined in favour of the claim ; the Master of the Rolls observing, 
 that by the gift of interest, the shares being prima facie vested, that 
 interpretation could not be altered by words of vague import ; and 
 that the enjoyment, not the gift, of the fund was postponed until the 
 legatees attained their ages of twenty-two years. 
 
 Such is the established rule in favour of vesting, founded upon the 
 intention of testators, presumed from the gift of intermediate inte- 
 rest for the support of the legatees previous to the arrival of the times 
 appointed for receipt of the capital. But if the gift of maintenance 
 be not co-extensive with the whole amount of the interest ; or if it be 
 made out of another fund, in neither case will the legacies vest prior 
 to the arrival of the periods at which they are made payable ; for 
 such provisions afford no presumption that the testators intended 
 the legacies to vest before they became due ;(i) -and then the gifts 
 and the payments of the legacies being one and the same, if the le- 
 gatees die before that period, their personal representatives cannot 
 make a title to the funds. 
 
 We shall next proceed to the authorities which prove, that where 
 the interest of legacies before their times of payment is not express- 
 ed to be applicable for the support of the legatees, but it, or the 
 funds, are given to parents, guardians, or trustees for the benefit of 
 the legatees generally, such bequests will vest in them at the death 
 of the testators, notwithstanding the gifts and times of payment of 
 the legacies are the same, and which, without such a declaration, 
 would have made the bequests contingent previously to the arrival 
 of the periods when they were appointed to be paid. 
 
 Thus in Hanson v. Graham,(k) the testator bequeathed to his 
 three grandchildren 500Z. a piece four per cent, consols, when they 
 should respectively attain the ages of twenty-one, or be married, 
 provided the marriages were had- with the consent of his executors 
 and trustees ; and he directed the interest of the annuities to be laid 
 out at the discretion of his Executors and trustees as they should 
 think proper, for the benefit of the legatees until they attained twen- 
 ty-one or marriage, and for no other use, intent, or purpose. The 
 testator then gave his residuary personal estate to his son Isaac Gra- 
 ham, whom he appointed executor. One of the grandchildren died 
 intestate at the age of nine years, after surviving the testator, and 
 the question was, whether the plaintiffs, its next of kin, or the resi- 
 duary legatee of the testator, were entitled to the legacy ; which de- 
 pended upon this circumstance, whether the deceased grandchild took 
 a vested interest in it ? And Sir W. Grant determined in favour of the 
 plaintiffs, the next of kin, upon the principle, that the gift of the 
 whole interest for the benefit of the legatees, which gave them the 
 absolute property in it, as it became due, also gave them immediate 
 
 (f) See 3 Bro. C. C. 416. 6 Ves. 249. 2 Meriv, 386. () 6 Ves. 239. 249.
 
 SECT. III.] pay able out of Personal Estate. 391 
 
 vested interests in the legacies ; and consequently, that the next of 
 kin of the deceased grandchild were entitled to the 500Z. bequeath- 
 ed to it. 
 
 In Branstrom v. Wilkinson,(fy the testator gave to the two chil- 
 dren- of his niece, one dock-share, &c. when they should attain the 
 ages of twenty-one, in equal shares, and appointed their father trus- 
 tee for them during minority. The question was, whether the lega- 
 tees took vested interests before twenty-one *? And Sir W. Grant 
 decided in the affirmative, upon the ground that the testator in tip- 
 pointing a trustee for them during minority, clearly showed his inten- 
 tion to postpone the possession, and not the vesting of the legacies. 
 
 Upon similar reasoning, the case of Love v. L 'Estrange may be 
 supported, notwithstanding Lord Rosslyn expressed his inability to 
 account for the principle of the decision,fm) unless it were to be re- 
 ferred to the circumstance of being a residue; as the words were 
 annexed to the gift. 
 
 In that case,(w) the testator vested in trustees, who were his ex- 
 ecutors, his residuary estate, in trust to sell, dispose of, and improve 
 "until Walter Nash should attain his age of twenty-four years." 
 He then expressed a wish, that Walter should be wholly employed 
 in his trade, either as an apprentice or a journeymen, until his said 
 age, and directed that he should be paid an annuity of 101. out of 
 the residue from his age of twenty-one until he attained twenty-four, 
 and from thenceforth in trust (as to the residue) for him the said 
 Walter Nash. Walter died under the age of twenty-four; and the 
 question was, whether he took a vested interest in the fund which 
 was transmissible to his personal representatives 9 Lord King de- 
 termined in the affirmative, from whose decree the testator's next of 
 kin appealed to the House of Lords, which confirmed the decision. 
 
 Although the last was a case not of simple unqualified gift to the 
 legatee, yet there were many circumstances to show that Walter 
 Nash was intended to have the benefit absolutely ; and that the en- 
 joyment of the property was alone postponed until he attained the 
 age of twenty-four. The reason for deferring payment is obvious. 
 Walter Nash was a minor at the date of the will, and the testator 
 appeared to be anxious to counteract the mischief with which pos- 
 session of his fortune might be attended to the legatee, if he were 
 permitted to receive it at an earlier period than the age of twenty-four; 
 as it might induce him to abandon the trade which the testator was 
 desirous he should qualify himself for, and carry on. That was the 
 motive for postponing the enjoyment of the bequest; and in addition, 
 the testator, in the mean time, gave the fund, intended for Walter, 
 to trustees, for his benefit, to improve for him and to make him an 
 allowance in the interim^ circumstances, proving under the authority 
 of the cases before stated, that the fund w.as intended to be imme- 
 diately given to the legatee, with a delay of the possession only until 
 he attained the age of twenty-four years. 
 
 In all the instances which have been produced, the corpus of the 
 property was immediately given, and the interest or fund directed 
 
 (/) 7 Ves. 421. (ni) 1 Bro. C. C. 300. 
 
 () Bro. Par). Ca. 59.8vo. ed. and see Doe v. Lea, 3 Term. Rep. 41. and Good- 
 title v. Whitby, 1 Burri 228.
 
 392 Of vested Legacies [Cn. X. 
 
 to be applied or managed for the benefit of the legatee. If, however, 
 the interest or dividends alone be the subject of bequest until a par- 
 ticular time, and the principal is not sooner taken out of the residue, 
 but directed for the first time to be taken out of it, and paid or trans- 
 ferred to the legatee at the end of that period, the intermediate gift 
 of the interest or dividends will not vest the capital; because the 
 gift and payment of it are one and the same, and it was the intention 
 of the testator to make the gifts of the interest and the capital sepa- 
 rate and distinct, so as to constitute the time appointed for payment 
 of the principal, the very essence of the gift of it. 
 
 Batsford v. Kebbell,(o) is a case of this description. There the 
 testatrix gave to Robert Endly the dividends which should become 
 due after her death upon 500Z. three per cent, bank annuities until 
 he should arrive at the full age of thirty-two years, at which time 
 she directed her executors to transfer to him the principal sum, for 
 his own use. Robert died under that age ; and the question was, 
 whether his personal representatives or the residuary legatee of the 
 testatrix were entitled to the legacy 1 ? which depended upon the 
 circumstance, whether Robert took a vested interest in it previous 
 to the age of thirty-two. It was .insisted for the residuary legatee, 
 that there was no gift of the principal to Robert but in the direction 
 to transfer at a time which never arrived ; and that the difference was 
 between a gift of the corpus, taking it out of the residue, and a gift 
 of the dividends only, the capital being to be taken out at a future 
 period. And Lord Rosslyn concurred in this statement, and de- 
 creed in favour of the residuary legatee ; remarking, that he had 
 looked into the cases, from which it appeared that dividends were 
 always a distinct subject of legacy ; that, in this instance, there was 
 no gift but in the direction for payment; a direction that only attached 
 upon a person of the age of thirty-two, which necessarily excluded 
 Robert, as he never attained that age. And his Lordship said, that 
 in all other cases of vesting, the thing was given, and the profit out 
 of it was given. 
 
 2. It may, however, happen that the intermediate interest is not 
 bequeathed to or for the maintenance or benefit of the legatee 
 during minority, or until the fund is directed to be paid to him; 
 but such interest may be bequeathed to another person beneficially 
 till the legatee of the capital arrive at a particular age, and, when 
 he attains to it, the fund may be directed to be transferred to him, 
 or the fund or its intermediate interest may be given to executors or 
 trustees to answer particular purposes, as to pay debts, &c. with a 
 direction to pay over the property to the legatee after satisfaction of 
 those demands ; or the intermediate interest may be given to an- 
 other person for life, as when the fund is bequeathed to or in trust 
 for Ji, for life, and after his death to B. In all those cases, the 
 person to whom the absolute property is limited, will take an im- 
 mediate vested interest in the subject, since such bequests are in 
 the nature of remainders; the rule as to which is, that the interests 
 of the first and subsequent takers vest together. It is clear that the 
 testator intended to give immediately the capital to the person in 
 
 (o) 3Ves. 363. referred to 3 Ves. 367. 5 Ves.' 5 14. 3 Meriv. 342. and see 
 Sambury v. Read t 12 Vs. 75. See also Ford v. Rav>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 <f where 
 there are clear words of gift creating a vested interest, the Court will 
 never permit the absolute gift to be defeated, unless it be perfectly 
 clear that the very case has happened, in which it is declared that 
 the interest shall not arise ; that it must be determined, upon the 
 words of the will, there was a vested interest, which was to be de- 
 vested only upon a given contingency i And the single question 
 was, whether the contingency had happenedv?"(as) 
 
 According to this rule, if legacies 'be given to A. and B., and if 
 either die during the life of D., then to the survivor living at D.'s 
 death, and both die before D.; as the bequests vested in Jl. and B. 
 at the testator's decease, subject to a contingency which did not 
 happen, the -interests which vested conditionally in the legatees, 
 became absolute in both of them upon- the death of the survivor be- 
 fore D. This instance will apply to others of a similar description, 
 and which will be afterwards noticed. 
 
 In Harrison v. Foreman,(y) the testator gave to trustees 40Z. a 
 year, part of 566Z. annuities, in trust to pay the dividends to Mrs. 
 Barnes for life, for her separate use ; and after her death, upon trust 
 to transfer the annuity, or the security upon which it was invested, 
 to Peter and Susannah Stallard, equally ; " and in case of the death 
 of either of them before Mrs. Barnes, he gave the whole to the sur- 
 vivor living at her decease." Both the legatees died during the life 
 of Mrs. Barnes. The question was, whether their legal personal re- 
 presentatives, or the testator's residuary legatees, were entitled to 
 the 401. annuities ? And Lord Jllvaniey, M. R., determined in fa- 
 vour of the former, upon the principle that Peter and Susannah hav- 
 ing taken vested interests in the fund at the death of the testator, 
 subject to be devested in favour of the survivor who might be living 
 at the decease of the tenant for life ; as there. was no such survivor 
 at that period, the de vesting .contingency never happened, and con- 
 sequently the interests at first vested remained undisturbed, which 
 entitled the personal representatives of the two legatees to the pro- 
 perty. 
 
 So in Smitherv. Willock,(z) the bequest was of personal property, 
 and the produce from the sale of real estate, to the testator's wife 
 for life, with remainder, as to the capital, after her decease to be di- 
 vided among the testator's brothers and sisters ; but if any of them 
 died before the wife, their shares were to be distributed among their 
 
 JT) 5 Ves. 209. ( y ) ibid 207. 
 
 z) 9 Ves. 233. see also IVhittell v. Dudin, 2 Jac. & Wqjt. 279.
 
 SECT. V.] payable out of Personal Estate. 415 
 
 children. One of the brothers died during the life of the wife with- 
 out ever having had a child. And Sir W. Grant, M. R., declared 
 the share of the deceased brother to be vested, subject to be devest- 
 ed in the event only of his death before the testator's widow leaving 
 .children; which contingency not having happened, the brother's 
 personal represen'tative.was entitled. 
 
 And in Wall \. Tomlinson,(a) the testator gave the interest of his 
 residuary estate to his wife for life, and the capital, after her death, 
 to her children ; but if she had none (which event happened,) then 
 to Mrs. Strangeway absolutely, in case she should have children ; in 
 failure of which the property was given over. Mrs. Strangeway had 
 only one child born alive, and which died before her. The question 
 was, whether the interest which vested in that lady upon the birth of 
 her child was absolute, or it was devested upon her dying without 
 leaving a child, which, depended upon the construction of the am- 
 biguous expressions, " in failure of which." And Sir W. Grant said, 
 it would be very difficult in the present case to give those words the 
 construction of the legatee not leaving children at her death ; a 
 construction which would lock up the property during her whole life ; 
 and that the testator did not appear to have contemplated the event, 
 which had happened, of the death of the child in the lifetime of its 
 mother. 
 
 Also in Browne V. Lord Kenyon.(b) 1000Z. were bequeathed to 
 trustees to pay the interest to Abigail Jones for life, remainder in 
 trust to divide the interest between Miss Chetwode and Mrs. Davison 
 during their joint lives, and to pay the whole of it to the survivor for 
 life, with remainder in trust after the survivor's death to pay the capi- 
 tal to Sir John Chetwode ; but if he were then dead, to divide it be- 
 tween his two brothers, Charles and Philip Chetwode, or the whole 
 to the survivor. Abigail Jones died first, then Miss Chetwode, after- 
 wards her brother Charles, next her brother Philip, then Sir John 
 Chetwode, and lastly, Mrs. Davison. It was determined, that the 
 legacy vested in Charles and Philip as tenants in common, subject 
 to be devested if one alone should survive Mrs. Davison, the last 
 tenant for life ; and that since there was no survivor in existence at 
 that period, both brothers having died before her, the contingency 
 upon which the interest was to be devested never happened ; conse- 
 quently, the personal representatives of each brother were entitled to 
 the fund. 
 
 The last case was followed by that of Sturgess v. Pearson,(c) in 
 which the testator gave the interest of one-fifth part of personal pro- 
 perty to his daughter, Jinn Tatnall, for life, and the capital, after 
 her death, to be divided among her three children, or such of them 
 as should be living 'at her decease, payable at twenty-one. The 
 three children died before their mother, and it was decided that the 
 children took vested interests, which were only to be divested in the 
 event of there being some or one of them living at the mother's 
 death, an event which did not happen ; for there was not one child 
 in existence at that period, the necessary consequence of which was, 
 that the personal representatives of the children became entitled to 
 the legacy upon the death of the tenant for life.. 
 
 (a) 16 Ves. 413. (b) 3 Mad. 410. see also Laffer v Edwards, ibid. 210. 
 
 (c) 4 Madd. 411.
 
 416 Of vested Legacies [Cn. X. 
 
 So also, if there be several infant legatees of the same fund, as 
 tenants in common, with a direction for payment of their shares at 
 twenty-one, but if all of them die under that age without leaving 
 issue, then to C. Although one or more of them die under twenty- 
 one without issue, yet, if another afterwards attain that age, the per- 
 sonal representatives of 'the deceased children will be entitled to 
 their shares ; and for the following reasons : The shares are so 
 given as to vest immediately in all the legatees, subject to be de- 
 vested in the event of all of them dying before twenty-one without 
 issue ; and since the contingency upon which those interests were 
 to be devested did not happen, as one child attained that age, they 
 continued vested ; therefore, upon the authorities we have been con- 
 sidering, the personal representatives of the deceased children 
 will be entitled to their proportions of the fund.(d) 
 
 Upon the same principle, if a legacy be given to a person abso- 
 lutely, and a mere discretionary authority is intrusted to two or more 
 executors to qualify the bequest, and reduce it to an estate for life, 
 with remainders over; if by any -means the authority become in- 
 capable of execution, the entire interest which originally vested in 
 the legatee, will become absolute. 
 
 Thus in Keates v. Burton,(e) Mr. Burton bequeathed 2000Z. to his 
 natural son, James Christie ; " but if his executors should think it 
 more for the advantage of James to have 20001. placed at interest, 
 and to pay him interest for life, as it became due, or otherwise in such 
 proportions, and at such timeSj manner, and form as they in their dis- 
 cretion should think fit, they were authorized and empowered to place 
 the money at interest, as therein mentioned, in their joint names, or 
 in the names of the survivors, and directed to pay him the interest in 
 manner aforesaid during his life," with limitations over. There were 
 four executors, one of whom died before the testator, and the others 
 renounced probate. Under these circumstances the joint authority 
 having become incapable of execution, the question was, whether 
 James was entitled for life only, or took a vested absolute interest 
 in the legacy, liable to be devested by the exercise of the power 
 delegated to the executors jointly ? for if the latter, then, since the 
 event upon which the devesting was to take place could never hap- 
 pen, the assignees of the Legatee under an insolvent act would be 
 entitled to the money. And Sir W. Grant, M. R. decided the fol- 
 lowing points : 1st, that this was a mere personal discretionary au- 
 thority to the executors ; which, if not exercised, a court of equity 
 could not execute : 2d, that the gift by will was of the -entire pro- 
 perty, subject to be divested upon execution of the power : and 
 lastly, that the power being extinct, the interest of the legatee be- 
 came absolute, as the event could not happen, upon which it was 
 to be divested. His assignee therefore had made out a good title. 
 
 It is observable in the before stated cases of Harrison v. Foreman, 
 Browne v. Lord Kenyan, and Sturgess v. Pearson,(f) that the limi- 
 tations to the sarviving legatees, were to such only as should be 
 living at the deaths of the tenants for life. As., therefore, none of 
 them were in existence at those periods, the contingencies divesting 
 
 See Sfcey v. Barnes, 3 Meriv. 335. 340. (e) 14 Ves. 434. 
 
 Ante, p. 414. et seq.
 
 SECT. V.] payable out of Personal Estate. 417 
 
 the bequests, made to them generally, never happened ; consequent- 
 ly, the interests, which originally vested in all the legatees, remained 
 undisturbed, a circumstance that entitled their representatives to the 
 legacies. But this is otherwise, when surviving legatees are not re- 
 quired to be in esse at the death of the "tenant for life. If, then, the 
 legacy be limited "to A. for life, and after his death to his two children, 
 B. and G'., in equal shares, but should either of them die before A., 
 then to the -survivor; although B. and C. die. during the 'life of ./?., 
 yet C., if he survive B., will be entitled to the whole; because the 
 interest of B. was devested by his death before C. and became vest- 
 ed in the latter according to the limitation in the will, C. not b^eing 
 required to be living at the death of .#.', the tenant for life, as in the 
 preceding cases; authorities reconciled by this distinction with those 
 of Scurfield v. Howes, and Barnes v. Allen, before stated. (g) 
 
 Questions indeed have arisen upon the ; expressions of wills, in re- 
 ference to the event upon which the limitation over was meant to 
 take place; viz. whether upon the sole contingency of the legatee 
 dying under twenty-one, or upon his death, during the life of a per- 
 son to whom the fund was given for life, notwithstanding he had at- 
 tained that age. We shall therefore, consider, 
 
 7. The construction of the words, "payable, &c." in reference to 
 the event introducing a limitation over of legacies or portions if any 
 of the legatees die before their shares become payable, or payable, 
 assignable, and transferrible. 
 
 FIRST. Of legacies. 
 
 The term "payable" is. of ambiguous import, and is capable of 
 being referred either to the period when the legacy is to vest in in- 
 terest, or to the time when it becomes due/ The determination in 
 these instances depends upon a sound interpretation of the will. 
 In the following case the word " payable" was referred to the time 
 of vesting, viz. twenty-one, and not to the period of the legacy be- 
 coming actually due. 
 
 The case is Hallifax v. Wilson,(h] in which Mr. Hodgson be- 
 queathed the residue of his estate to trustees, upon trust to pay the 
 interest of it to his mother, Rebecca, for life, and from and imme- 
 diately-after her death, to pay and transfer the trust fund among his 
 nephew and nieces, Barbara, Thomas, and Margaret, equally; the 
 shares with the accumulating interest to be paid or transferred at 
 twenty-one ; but, if any of the legatees died before their shares be- 
 came payable, such shares were to be equally divided among the 
 survivors or survivor, &c. Thomas, one of the legatees, attained 
 twenty-one, but died before Rebecca, the tenant for life ; and the 
 question was, whether the vested interest that he took in his share at 
 twenty-one, was devested by- his death before Rebecca'? which de- 
 pended upon the period to which the word " payable" was to be 
 referred. Sir W. Grant decided in favour of the personal repre- 
 sentative of Thomas ; observing, that the bequest over being imme- 
 diately connected with the direction for payment at twenty-one, the 
 natural reference of the words "if any of the legatees die before their 
 shares become payable," was to their death under twenty-one. 
 
 If such be the construction upon kgacies, a fortiori it must equal- 
 
 C0 Sufira, pp. 394 & 402. (A) 16 Ves. 168.
 
 418 Of vested Legacies [Cii. X. 
 
 ly prevail where the objects are children claiming portions from a 
 parent. The following distinction must be attended to; that, if to the 
 term "payable,". other expressions be added, fairly importing the 
 intention of a testator to divest the interests previously given upon 
 the death of any of the legatees before the tenant for life, and not 
 merely in the event of any of them dying under twenty-one, the in- 
 terests will be divested accordingly; as in the instance of a limita- 
 tion over upon the death of any of the legatees before their shares 
 become payable, assignable, or transferrible. But if the bequest be 
 not mere bounty, as when the objects are children claiming portions 
 payable at twenty-one, tlieir parents having life-interest in the fund ; 
 those words will generally be construed to mean such children only 
 as shall die under twenty-one, so as to divest the interests of those 
 who attain that age, although they happen to die before tlieir pa- 
 rents. The- reason of this distinction will appear in considering 
 
 SECOND. The construction of the words "payable, assignable, and 
 transferrible," used in the limitations over of portions, when the 
 parent has a life-interest, and the portions are directed to be paid at 
 twenty-one. 
 
 It is a rule, that a child who has attained twenty-one, or married, 
 is primd facie to be considered entitled to a portion provided for 
 children, upon the ground that an intention is not to be imputed to 
 a fathec to leave his child, having occasion for a fortune, without 
 one. And, to form an exception to the rule, it must be shown, from 
 the tenor and words of the will or settlement, that the child was not 
 meant to have the provision at that age ; .an intention that must not 
 be doubtful, but clear. (i) There must be something in the instru- 
 ment utterly incompatible with giving the portion at twenty-one. If, 
 then, the terms of the instrument be ambiguous, or if there be con- 
 flicting or contradictory clauses, so as to leave in a degree uncertain 
 the period at, or the contingency upon which, the portion is to vest 
 or be devested, it is the inclination of a court of equity to vest the mo- 
 ney in sons at twenty-one, and in daughters at that age, or marriage. (&) 
 Hence it follows, that if the portion be given over in language which 
 is capable of being referred either to the death of children before 
 twenty-one, or during the lives of their parents; the expressions will 
 be restricted to the period of vesting, i. e. in the event of death un- 
 der twenty-one ; for a court of equity considers that it would be 
 very unreasonable to suppose a father to mean that his child hav- 
 ing attained twenty-one, or married, and founded a family, should, 
 not take its portion, because it happened to die before him. Upon 
 such argument, the Court interprets the words of the will or settle- 
 ment by what is fairly presumed to be the intention of the father, 
 considering the relation of the parties ; and in doing so, it uses 
 greater latitude than in questions of this kind between strangers, 
 or upon a contract, where there is no ingredient of parental feel- 
 ing.^) 
 
 Suppose, then, a bequest or settlement (for it is immaterial which) 
 (wi) to be made in trust for A., the wife, for life, and after her 
 death for her children by the testator or senior; equally ; to be paid 
 
 (i) See Bernard v. Montague, ante, 380. (fr) 3 Ves. & Bea. 85. 91. 
 
 (/) 6 Ves. 507. (m) 16 Ves. 172.
 
 SECT. V.] payable out of Personal Estate. 419 
 
 to sons at twenty-one, and to daughters at that age or marriage, 
 except those events happen during the life of A., and then the pay- 
 ment to be postponed till ASs decease ; but if any . of the children 
 die before their portions or shares become payable, assignable or 
 transferrible such shares to go to the survivors in the same manner 
 as their original portions ; and if all of them die be fore. their por- 
 tions or shares become payable, &c. then to B. Now whether the 
 words " payable," &c. were intended to refer only to children 
 dying under twenty-one, without regard to the death of .#., is by 
 no means clear ; consequently, a court of equity will, according 
 to the observations before made, consider the expressions " paya- 
 ble," &c. as relating merely to the age of twenty-one, 'or marriage, 
 so that if a son attain twenty-one, or a daughter attain .that age or 
 marry, they will take an indefeasible vested interest in their por- 
 tions or shares, transmissible to personal representatives, although 
 they happen to die before A. It is conceived that the following 
 case establishes, the preceding remarks. 
 
 In Jefferies v. Reynolds, (n] Exchequer annuities were settled 
 upon husband and wife for their lives, and after their deaths for the 
 children of the marriage, in equal shares, to be assigned and made 
 over to them at their ages of twenty-one happening after the death 
 of the surviving parent; but if any of them attained twenty-one 
 during the lives of their parents, their shares were to be paid, 
 assigned and made over, within three months after the death of the 
 survivor of the parents, unless sooner directed. And survivorship 
 among the children was provided, if any of them died before their 
 shares became payable, assignable, or transferrible. It was also 
 declared, that if there should be no child, or there being children, 
 if all of them died before any of their shares became payable,, as- 
 signable, or transferrible, as aforesaid, the annuities should go to 
 the parents, and the survivor of them. There was only one child, 
 a son, who attained twenty-one, but died before his mother, who 
 survived her husband. And it was determined, first at the Rolls, 
 afterwards by Lord JVorthington, Ch., and ultimately by the House 
 of Lords, that the son's executor, and not the mother's, was enti- 
 tled to the fund. 
 
 The comments of Sir W. Grant upon the last authority, in 
 ScJienck v. Legh,(o) were, that it was a stronger case against the 
 child than the latter ; for, said he, " the first declaration in Jefferies 
 v. Reynous, as to payment at twenty-one, has the qualification of 
 happening after the death of the father and mother, and the ques- 
 tion was not upon the survivorship between the children, but upon the 
 limitation over to the parents ; as against whom it could not be said 
 to be transferrible till after the death of the survivor." The cases 
 mentioned in notc(p) apply to the present subject, and may be 
 consulted with advantage. 
 
 The next subject for consideration is . 
 
 (n) Stated 9 Ves. 311. 6 Bro. Parl. Ca. 398. 8vo. ed. (o) 9 Ves. 311. 
 
 ( //) Emfieror v. Rolfe, 1 Ves. sen. 208. Randall v. Metcalfe, 3 Bro. Parl. Ca. 
 318. 8vo. ed. Willis v. Willis, 3 Ves. 51. Hofie y. Lord Clifden, 6 Ves. 499. 
 Schenckv. Legh, 9 Ves. 300. Potvisv. Burdett, ibid. 428. Bayard v. Smith, 14 
 Ves. 470. Walker v. Main, 1 Jac. & Walk. 1. 8. Hoivgrave v. Cartier, 3 Ves. 
 & Bea. 79. Perfect v. Lord Curzon, 5 Madd. 442. Maitland v. Chalie, 6 ib. 243.
 
 420 Of vested Legacies [Cn. X. 
 
 SECT. VI. The effect of powers of appointment upon the 
 vesting and devesting of Legacies or Portions. 
 
 1. Where the power is merely to ascertain the shares each lega- 
 tee is to take. 
 
 When the will creating the power provides legacies or portions 
 for a class of persons in common, to be enjoyed after- the death of 
 an individual, and simply authorizes that person to fix the amount 
 of each legatee's proportion ; the shares will vest in interest in such 
 of them as are alive at the death of the testator, and in'others an- 
 swering the description, as they come into esse, during the life of 
 the donee of. the power, subject only to be devested, so far as re- 
 gards the amounts of the shares, by an exercise of the power, pro- 
 vided all the legatees survive the donee of the power ; for if any of 
 them die during the' donees' life, and before he have executed the 
 power, the interest which vested in the deceased legatee will be 
 devested if the donee appoint (as he mayj the whole fund among 
 the survivors, which was decided by Lord Thurlow in Boyle v. 
 The Bishop of Peterborough ;(q) a case acknowleged by Lord El- 
 don in Butcher v. Butcher, (r) and by Sir Thomas Plumer, who de- 
 cided the case of M'Ghie v. M ( Ghie,(s] upon the authority of the 
 first. But if the donee of the power die without executing it, or 
 make an invalid appointment of the whole fund, then, as the interest 
 which vested in the deceased legatee was never devested, his per- 
 sonal representative, after the death of the donee, will be entitled 
 to an equal share of the property with the other legatees. And if 
 part of the fund only be effectually appointed, the remainder of it 
 will be divisible among the surviving legatees, and the personal 
 representative of the one deceased, in respect of the vested interests 
 that all the legatees took in the whole property, subject to the power 
 of appointment ; which, as to that residue, is to be considered as 
 never having been made. The following authorities will clearly 
 illustrate the above remarks : 
 
 In Malim v. Keighley, and Malim v. Barker,(t] the bequest was, 
 that if the whole of the testator's residuary personal estate became 
 vested in any one of his three daughters under the trusts previously 
 declared, he gave it to her, with a recommendation. to dispose of it, 
 after her death, among the children of his daughter Ann Malim, and 
 of his nephew John Lowe. The residue became vested in his daugh- 
 ter Sarah, who died without issue and intestate, having made no 
 such disposition as desired by the will. The direction was determined 
 to be a trust in favour of the children of Jinn and John, among all of 
 whom, as well those living at the testator's death, as those afterwards 
 born, the appointment must have been made, had the power been 
 executed. And Lord Mvanley said, that every child which came in 
 esse acquired a vested interest, liable to be devested by the exercise 
 of the power of appointment ; and there being no appointment, he 
 must construe it as if there was no power ; and it had been frequent- 
 
 fy) 1 Ves. jun. 299. 3 Bro. C. C. 243. 5. C. (r) 1 Ves. & Bea. 90. 
 
 () 2 Madd. 378. Vane v. Lord Dun^annon, 2 Scho. & Lefroy, 118. 129. 
 
 (t) 2 Ves. jun. 333. 506. and 3 Ves. 150. and see Witts v. Boddington, 3 Bro. 
 C. C. 95. ed, by Belt, also Robinson v. Smith, 6 Mad. 194. stated infra, Chap. 
 XXI. on Construction, sect. 6. div. 2, sub-div. 1.
 
 SECT. VI.] payable out of Personal Estate. 421 
 
 ly determined, that in such a case all children coming into esse should 
 take. In the present instance, some of the children having died be- 
 tween the death of the testator arid the donee of the power, his 
 Lordship declared that their personal representatives were entitled 
 to their shares. 
 
 The last case was followed by that of Bristow \. Warde,(u] in 
 which it was agreed, by articles upon the marriage of Mr. and Mrs. 
 Bristow, th&t a sum of money should be invested in South Sea an- 
 nuities, in trust to pay the dividends of part of it to a Mrs. Foissin 
 for life, and the remaining dividends to Mr. Bristow during the lives 
 of himself and wife ; and, if he died before her, leaving issue of the 
 marriage, in trust to pay the dividends (subject to the trust for Mrs. 
 Foissin) to Mrs. Bristow for life, and after her death, to apply the 
 capital in such manner as Mr. Bristow should by deed or will ap- 
 point ; and in default of appointment, to be equally divided, after 
 Mrs. Bristow 's death, among the issue of the marriage, at their ages 
 of twenty-one ; the intermediate dividends to be applied for their 
 maintenance, with benefit of survivorship upon the death of any of 
 them under twenty-one. Mr. Bristow died before his wife, leaving 
 several children; and. he by will appointed the fund among them, 
 and in some instances to grandchildren, after limiting interests for 
 life to their parents ; and to one daughter, Catherine, he had by 
 deed appointed, on her marriage, part of the fund, which he increas- 
 ed by the will. Under these circumstances,' Lord Rosslyn decided 
 the following points: 1st, that the power of appointing was not 
 indefinite, as it purported to be, but was to be considered as confin- 
 ed to children ; in which sense also the word " issue" was to be 
 taken ; 2d, that in consequence, the appointment to grandchildren 
 was void, but good so far as it limited interests for life to their pa- 
 rents ; 3d, that the defective execution of the power in part did not 
 avoid the appointment in toto ; 4th, that so much of the fund as was 
 ineffectually appointed vested in all the children living at the death 
 of the father, the appointor. And lastly, that although the power 
 was executed at different times, and not by one single act, and in 
 one instance in augmenting the proportion of a child, yet those 
 several appointments were valid. (x) 
 
 Shortly after this case was determined, Lord Mvanley, M. R., 
 decided that of Wilson v. Pigott,(y) which bore a near resem- 
 blance to it, and received a similar decision. 
 
 In that case, 4000Z. were vested in trustees of 'a marriage settle- 
 ment, to pay the interest, subject to an annuity to B., to the hus- 
 band during his life; then to his wife for life, remainder as to the 
 capital, in trust equally to divide it among all the children of the 
 marriage, except an eldest or only son, at such times and in such 
 proportions as their parents, or the survivor, should by deed or will 
 appoint; and in default of appointment, among such children (ex- 
 cept as aforesaid) equally, and to pay the whole to one child, if there 
 should be one only ; to be paid to daughters at twenty-one or mar- 
 riage, and to sons at that age, if their parents and the annuitant 
 should be then dead ; if not, immediately after the death of the.sur- 
 vivor ; with benefit of survivorship among them, upon the death of 
 
 () 2 Ves, jun. 336. (x) See 2 Ves. sen. 62. (y) 2 Ves. jun. 351. 
 
 VOL. i. 3 H
 
 422 Of vested Legacies [Cn. X. 
 
 any of the sons before twenty-one, and of the daughters before that 
 age or marriage ; the accrued shares to be paid at the same periods 
 as the original ; and the intermediate interest was to be applied for 
 maintenance ; but if there was ah only, or only surviving son, he was 
 to receive the 4000/. at twenty-one, and the intermediate interest 
 for his support. And if there were no issue, or all of them died be- 
 fore the fund became payable, it was given to the survivor of the 
 husband and wife. There were four younger children,*two sons and 
 two daughters ; and upon the marriages of the two daughters and one 
 of the sons, the father appointed 1000J. of the 4000Z. to each of 
 them, but made no appointment of the remaining 10001. His young- 
 er son, named Charles, never having been married, no appointment 
 was made in his favour, and he died, after attaining twenty-one, be- 
 fore his father. Under these circumstances, the following points 
 were determined : 1st, that the appointments made at several times, 
 as in the last case, were good ; 2d, that so much of the fund as was 
 not appointed, being an immediate vested interest in all the children 
 as they came in- esse, '-was divisible among the three surviving chil- 
 dren and the personal representative of Charles, there being nothing 
 either in the settlement or the appointments to the three children, 
 which could authorize the Court to give the whole of the 1000Z. to 
 his representative. 
 
 The other cases referred to in note(z) concur with those before 
 stated in establishing the proposition, that, where by will or settle- 
 ment legacies or portions are directly given to a class of individuals 
 generally, subject to powers of appointing the property among them, 
 the interests in it will immediately vest in the persons answering the 
 description as they come in esse, during the life of the appointor ; 
 so that, if no appointment, or only an imperfect or invalid one be 
 made, of the whole or part of the fund, it, or so much of it as is not 
 effectually appointed, will belong to the legatees or donees living at 
 the death of the donee of the power, and to the personal represen- 
 tatives of those who happen to be then dead. And the cases of 
 Boyle v. The Bishop of Peterborough, Butcher v. Butcher, and 
 M'Ghie v. M'Ghie, referred to in the beginning of this section, prove 
 that the interests, are not so indefeasibly vested, but that the shares 
 of legatees or donees dying before the donee of the power, may be 
 appointed as parts of the entire fund among the surviving legatees 
 or donees. 
 
 It must be noticed that Lord Rosslyn, made a decision irrecon- 
 cileable with the authorities before stated and referred to, so far as 
 regards the equal distribution among the legatees or donees of so 
 much of the fund as should be either not effectually appointed or 
 not appointed at all. The case alluded to is fteade v. Reade,(d) 
 which the reader will consult. In allusion to it Lord Eldon made 
 the following remarks : " Lord Loughborough (Rosslyn), appears in 
 Readev. Readeto have disturbed that doctrine ( just stated), giving 
 the unappointed fourth (three having been appointed among three 
 
 (r) Gordon v. Levi, Ambl. 364. Doe v. Martin, 4 Term. Rep. 39. 64. Smith 
 v. Camelforci, 2 Ves. jun. 698. Vanderzee v. Adorn, 4 Ves. 771. Butcher v. 
 Butcher, 9 Ves. 382. 1 Ves. & Bea. 79. 99. 5. C. 1 Scho. & Lefroy, 293. Vane 
 v. Lord Dungannon, 2 Scho, 8c Lefroy, 118. () 5 Ves. 744.
 
 SECT. VI.] payable out of Personal Estate. 423 
 
 of four children which, according to that old course, would have 
 been divided among the four] ; to the representatives of the deceas- 
 ed child. I do not perfectly understand that case which is quite 
 novel in this respect."(6) 
 
 It is observable that the cases which have been stated, and re- 
 ferred to are instances where from the terms of the instruments the 
 funds were immediately given to the legatees or donees subject to 
 powers delegated to individuals to alter and fix the amounts of the 
 shares by the exercise of a sound discretion. There was no event, 
 upon which the interests that had vested in the several donees or 
 legatees were to be totally devested upon the execution of the 
 power, except the death of any of them before the appointor, and the 
 appointment being made to the survivors, and comprehending the 
 whole fund. If, however, there be no such immediate gift, the power 
 authorizing a selection of the objects, and the title of the individuals 
 to take is made to arise and entirely depend upon the execution of 
 the power, and there is no limitation to any of them in default of 
 appointment, the legacies or portions. will necessarily be contingent 
 until the donee of the power shall have exercised it ; as will appear 
 from considering 
 
 2. In what cases the vesting of legacies or portions depends upon 
 the execution of powers of appointment. 
 
 Suppose the interest of a sum of money to be bequeathed to or 
 settled upon A. for life, remainder in trust of the capital for such of 
 the children of A. as he should appoint ; and no disposition of the 
 fund is made in default of appointment. It is presumed that no 
 child can take a vested interest previously to appointment by Jl. ; 
 because, until the power be executed, the objects of the bequest or 
 settlement are uncertain ; no particular individuals of the descript 
 class can make out a title under the original instrument; or accord- 
 ing to the expressions of Lord Hardwicke, " there is no designation 
 to take under the will, but such of the children as A. should appoint ; 
 and no person can be ascertained under the will, until A. has made 
 such appointment. (c) 
 
 Accordingly in the Duke of Marlborough v. Lord Godolphin,(d) 
 Charles Earlof Sunderland, bequeathed by will and codicil 30,000/. 
 to his wife for life, and after her death to be divided and distributed 
 to and among such of his children, and in such manner and propor- 
 tion as she should appoint, and for no other purpose. The Countess 
 executed her power by deed and will, as she was enabled to do; and 
 by the latter instrument she appointed to two of the children, John 
 Spencer and Lady Morpeth 17,OOOL of the trust-fund. These two 
 children died before her, and consequently their shares became 
 lapsed ; and to whom they belonged was the question '? On the one 
 hand, they were claimed by the representatives of the testator's re- 
 siduary legatee, and on the other they were claimed by the repre- 
 sentatives of John Spencer and Lady Morpeth, as having vested in 
 those two persons under the testamentary appointment ; or, if n'ot so 
 entitled, then the money was claimed by the surviving children and 
 the personal representatives of those who were dead^ on the alleged 
 ground that all the childftn, who outlived the testator, took vested 
 
 (6) 1 Ves. 8c Bea. 92.' (c) 2 Ves. sen. 74. 
 
 (d) Ibid. 61. 74. 81. see also p. 208. of the same bcnk, and Ambl. 365.
 
 424 Of vested Legacies. [Cn, X. 
 
 interests in the whole property under his codicil, subject onlyto be 
 devest'ed as to the proportions by the exercise of the power by the 
 Countess; the execution of wh'ich having failed in part by the death 
 of John Spencer and Lady Morpeth, before the Countess, the ap- 
 pointor, the 17,0001. were distributable in the same manner as if no 
 appointment had been made, viz. among surviving children and the 
 representatives of those that were dead. But Lord Hardwicke de- 
 termined in favour of the representative of the testator's residuary 
 legatee, and he disposed of the other claims as follows: With re- 
 spect to the title of the representatives of John Spencer and Lady 
 Moiyeth, under the testamentary appointment ; he declared it to be 
 without foundation, for the reasons stated in a preceding chapter 
 which treats of " lapsed legacies. "(e) And in regard to the claims 
 of the surviving children, and the representatives of those who died 
 before the appointor, to an equal distribution of the 17,OOOZ. upon 
 the idea of that sum having been vested in all the children under the 
 codicil of Lord Sunderland, and not de vested by the appointment, 
 in consequence of the two appointees dying before the appointor, 
 Lord Hardwicke observed, that the codicil gave no interest to any 
 of the children appeared from the words of it, the gift and distribu- 
 tion being to and among such children as the Countess should ap- 
 point. He. was therefore of opinion that there was no gift to the 
 children otherwise than as they might take by the execution of the 
 power,(y) hence it followed, that, as no interest in the fund vested 
 in any child prior to appointment, and the two shares bequeathed to 
 John Spencer and Lady Morpeth, became eventually unappointed by 
 their -deaths before the appointor, neither the surviving children nor 
 the representatives of the two deceased could make a title to them : 
 not the former, because there was no appointment in their favour, 
 nor the latter because the two persons, in whose rights they claimed, 
 never took any interests capable of transmission; the only person 
 therefore, to whom the shares could possibly belong, was the per- 
 sonal representative of the residuary legatee named in the will of 
 the Earl of Sunderland. (g) 
 
 If then, as we have seen, children will not take vested interests in 
 a fund, prior to appointment, limited in remainder to such of them 
 as A. shall appoint, and there is no limitation over to them in de- 
 fault of appointment ; it seems to follow, that the determination 
 must be the same, if the power be restricted to such younger chil- 
 dren as A. shall appoint. (h) 
 
 But if in the last stated case of the Duke of Marlborough v. Lord 
 Godolphin, the 30,000/. had been given over to the children of Lord 
 Sunderland in default of appointment by the Countess, it is conceived 
 that the determination of Lord Hardwicke would have been in 
 favour of the surviving children, and the personal representa- 
 tives of John Spen.cer and Lady Morpeth; since, from the effect 
 of the limitation over, all the children would have taken vested 
 interests in the whole fund, subject only to be devested upon ex- 
 ecution of the power ; and as the appointment failed to the extent 
 of 17,OOOJ. those interests would have been devested; a circum- 
 stance, which, according to the principle*of Doe v. Martin, and the 
 other cases before stated and referred to, would have entitled the 
 
 (e) Chap. VIII. sect. 5 p. 337. and see 2 Ves. sen. 75. 
 
 ( f) 2 Ves. sen. 74. (e-) Ibid. 81. (A) Sec 1 Ves, sen. 210.
 
 SECT. VII.] payable out of Personal Estate. 425 
 
 surviving children, and the personal representatives of Mr. Spencer 
 and Lady Morpeth to a distribution of that sum among them. 
 
 SECT. VII. As to vesting generally. 
 
 1. Instances of vested interests not being transmissible at the 
 death of the legatees. 
 
 It may happen that the interest in a bequest shall be so vested in 
 a legatee, as from the nature and circumstances of the gift it may 
 be considered to be personal, and therefore determine with his life. 
 A case of this kind occurred in exparte Davies,(i) in which Mr. 
 Cottrell devised, his real and personal estates to his wife, during 
 his son Henry's minority (which minority he directed should 
 cease on the 1st day of November 1805,) upon condition that she 
 should find his son with suitable education, support, and clothing; 
 and after the determination of his son's minority, he gave him 
 a moiety of his income. The testator then directed, that upon his 
 wife's death, (to whom he had given parts of his personalty for life,) 
 the whole of his property should belong to his son ; but if he died 
 during minority, the whole was to rest with his said wife during her 
 life. He also appointed guardians and trustees for his son, in the 
 event of his wife dying while his son continued a minor ; an event 
 which happened ; but previously to it she married the petitioner 
 Davies ; who, as her administrator, claimed such interest in the 
 testator's estate during the infancy of the son, as his late wife would 
 have been entitled to, had she continued alive during the whole of 
 that period. But the Master of the Rolls determined against the claim. 
 
 The reason for- this decision appears to have been the intention 
 of the testator manifested upon his will. It would have been a very 
 extraordinary intentionto impute to this testator, as against his own 
 son, that he meant to give the interest of his fortune to any stranger 
 who might happen to be the executor or administrator of the widow. 
 It was quite clear that the testator only intended the interest for her, 
 provided she .continued to live until her son attained twenty-one, 
 and' should be in a situation to find him with suitable education, 
 maintenance, and clothing. He confides that trust, as he expresses, 
 to his said wife and to no other person. But contemplating the pos- 
 sibility of her death during his son's minority, the testator provided 
 for that event by appointing for him guardians and trustees; an ap- 
 pointment, which would have been useless, if the wife had taken 
 beneficially an absolute vested interest in the produce of .the son's 
 fortune until he attained twenty-five ; for then those trustees would 
 have had nothing to manage ; the produce would have been under 
 the controul of the wife's personal representatives, and the son would 
 have been at their mercy for his education and maintenance, although 
 those two objects appear to have, been the principal, if not sole, mo- 
 tives of the gift to the wife during the minority of her son, and for 
 which guardians and trustees were specifically appointed in the event 
 of her death before the son attained twenty-five. This intention of 
 the testator was further apparent from the bequest of the whole pro- 
 perty to the wife for life, if his son died under twenty-five : a limita- 
 tion, which negatived any intent that she should take a beneficial 
 interest in the produce of the estate before the happening of that 
 
 (i) 6Ves.l4r.
 
 426 Of vested Legacies [Cn. X. 
 
 event, viz- during the son's minority. Under these circumstances, 
 the Master of the Rolls was of opinion that the administrator of the 
 wife had no title. 
 
 Upon similar principle the decision in the m'ore simple case of 
 Neal v. Hanbury,(k) was founded, There Mr. Neal bequeathed 
 51. a year to his nephew Thomas, (not naming executors or admi- 
 nistrators), to be paid half yearly during the life of his wife on con- 
 dition that he behaved himself civilly to her. Thomas died, and his 
 administratrix claimed the annuity during the life of the testator's 
 widow. But his demand was negatived by the Master of the Rolls, 
 who said the bequest was personal to Thomas, which appeared from 
 the condition requiring his civil deportment towards the widow, and 
 could not be observed after his death. The annuity therefore was 
 not transmissible to his personal representative. 
 
 2. As to the word " survivors" being construed the same as 
 " others." 
 
 Upon this subject. Lord Eldon made the following remarks: 
 " The difficulty (he observes) that has always been felt to apply the 
 term ' survivors' to persons who may not be alive at the time when 
 the distribution of the fund is made, has been met by presuming 
 that the testator intended those individuals not then living, but who 
 might come into existence before the distribution; construing the 
 word ' survivors' as ' others' to take in all who should come into 
 existence before that period."(J) The same doctrine equally ap- 
 plies in relation to persons who happen to die previously to the 
 time when the fund is payable, when the will shows the intention, 
 that the interests should vest in those persons at a particular period, 
 which they survived. In order' to illustrate this remark 
 
 Suppose a bequest to the testator's children, #., B. and C., to 
 be paid at twenty-one, but if B. or C. died under age, then to the 
 two survivors; and if two of the legatees died before twertty-one, 
 the whole to the surviving child; and if the three died under that 
 age, the whole to go to D. and E. Should B. die after attaining 
 twenty-one, and 'A. afterwards under that age, leaving C.; although 
 C., as the only surviving -child at the death of w2., when, his share 
 became payable, would, be literally entitled to the whole of it; yet, 
 since upon B.'s attaining twenty-one, the will showed the intention 
 to have been that all B.'s interests under it should vest, the limita- 
 tion over to survivors, in the event oi one dying under twenty-one, 
 would be construed as if expressed, " to the others of them:" a 
 construction which would vest a moiety of JlSs proportion in B., 
 although B. died before 4., and consequently entitled B.'s personal 
 representative to a half of that share. 
 
 Such was the case of Wilmot v. Wilmot,(m) in which Mr. Wilmot 
 bequeathed to his son Andrew one third part of his residuary estate, 
 to be placed at interest for his son's benefit, with a declaration that 
 his son should not be put into possession of it before twenty-five. 
 The remaining two-thirds the- testator gave to his two daughters, 
 Mary and Sarah, to be laid out at interest for their advantage, but 
 possession not to be delivered to them previous to their ages of 
 twenty-one. Ar\d if either of them died under twenty-one, her third 
 
 (/t) Pre.Cha. 173.' (/) 14Ves, 578. (w) 8 Ves. 10.
 
 SECT. VII. J payable out of Personal Estate. 427 
 
 part was to be equally divided between the two surviving children ; 
 but in the event of the death of two children, the whole was to de- 
 volve to the surviving child. And if the three children died before 
 twenty-one, the whole was to go to the testator's brothers, A. and 
 B. Mary attained twenty-one, and received her share ; she after- 
 wards married, and died in the lifetime of Andrew and Sarah, and 
 of her husband, who was her administrator. Andrew then died 
 under twenty-one ; consequently Sarah was the only surviving child 
 at the period when Andrew's share became payable under the limi- 
 tation over, and as such, she and her husband claimed the whole of 
 it; a demand resisted by the administrator of Mary, who claimed in 
 her right a moiety, upon the principle that all the interests given to 
 her by the will vested upon her arriving at the age of twenty-one ; 
 a proposition which necessarily included what she might eventually 
 become entitled to receive, if either her brother or sister did not 
 live to the periods at which their shares were made payable. And 
 of that opinion was Lord Eldon, who, in deciding in favour of the 
 administrator, thus expressed himself: " It must be argued, that the 
 word ' surviving' means the same as ' other,' or ' living at the age 
 aforesaid.' In the clause in which the gift over is made, it was 
 never meant that any portion should be taken ; it was to be either the 
 whole or none. I think they are right in contending that this is vested." 
 
 3. Instances have occurred of sums of money being directed to 
 be laid out in the purchase of annuities for legatees during life ; 
 and in consequence of their deaths before the money was so invest- 
 ed, questions have arisen between their personal representatives 
 and the persons entitled to the fund to which that money belong- 
 ed ; the former claiming the gross sums, as having vested in the 
 legatees at the death of the testators ; and the latter insisiting that 
 the bequests were of annuities only, and therefore, since the lega- 
 tees died before the money was so invested, it ought not to be taken 
 out of the general estate. It is, however, settled, that when it is 
 clearly ascertained to have been a testator's intention that a gross 
 sum was to be sunk in annuities for the benefit of a legatee, and 
 not the interest of it alone given to him for life, he will take a vest- 
 ed interest in the principal, immediately upon the death of the 
 testator, which will entitle his personal representatives to the 
 money, although he happen to die the day after the testator's de- 
 cease ; and upon this principle : the gift to or in trust for the 
 legatee being of the absolute property in the capital, and not 
 abridged by^tfee mode of enjoyment prescribed by the testator, en- 
 titled the legatee to the money ; and a court of equity, at the suit 
 of a legatee so circumstanced, will order it to be paid to him, and 
 not to be laid out in the purchase of an annuity. 
 
 In Yates v. Compton,(n) the testator directed his executor to sell 
 his real estate, and with the proceeds, together with his personal 
 property, to purchase an annuity for the life of Jane Styles. Jane 
 died before the annuity was purchased, and even before the lands 
 were sold, and yet her administrator was held to be entitled to the 
 money. 
 
 So in Barnes v. Rowley,(o) a legacy was given to be laid out in 
 
 (n) 2 P. Will. 308. 311. (o) 3 Yes. 305.
 
 428 Of vested Legacies [Cn. X. 
 
 an annuity for the life of the legatee ; and it was determined to 
 be a vested interest at the death of the testator, and the personal 
 representative of the legatee therefore entitled to the whole sum. 
 
 Similar to the case of Yates v. Campton was that of Bayley v. 
 Bishop,(p] with this difference, that the sale of the estate was post- 
 poned to the death of a tenant for life. The testator, after devising 
 his lands to his wife for life, directed them to be sold after her de- 
 cease to pay legacies, one of which (500J.) he directed his trustees 
 to invest in the purchase of an annuity for his son for life, and to 
 permit him to receive it. Notwithstanding the son died before the 
 wife, and consequently before the sale of the property, and an in- 
 vestment of the 500Z. in the purchase of an annuity could be 
 made, yet Sir W. Grant decreed the principal sum to the admin- 
 istratrix of the son, upon the authority of the preceding cases. 
 
 The last case was followed by Sir Thomas Plumer, M. R., in 
 Palmer v. Craufurd,(q) a case attended with very particular cir- 
 cumstances. There the testator gave to trustees 30001. to be in- 
 vested in their names, on the life of his brother George Craufurd, in 
 the purchase of a government life-annuity, of the value of 30001., 
 to be received by them, and paid to him every six weeks, for his life ; 
 with a condition annexed to the gift, which he performed. George 
 received an annual allowance from the testator, through the me- 
 dium of the latter 's agents in Holland, where George resided ; and 
 the testator, after the date of his will, directed those agents by 
 letter to continue the allowance after his death, until .his executors 
 had arranged his affairs. He also left a writing without a date, 
 declaratory of his resolution to give such an order to those agents, 
 for George's subsistence, and until the executors declared their 
 readiness to carry into effect the clause in the will respecting him ; 
 observing, that by this manner of preventing his death being an 
 'inconvenience to George, he the better enabled his executors to 
 make arrangements with the other legatees. The 3000Z. were 
 never invested as directed by the will, owing to George's absence 
 in Holland, ill health, and other obstacles, which prevented his ap- 
 pearance at the government annuity-office in this country an in- 
 dispensable preliminary to the investment being made, tip to his 
 death George received his usual allowance ; and before that event, 
 the trustees were prepared to have made the investment, had he 
 been able to appear at the office. Sir Thomas Plumer declared, 
 that notwithstanding the circumstances which had occurred sub- 
 sequently to the will, George took a vested interest *iq the 30001. 
 which entitled his executors to receive the money ; but that since 
 George, instead of the government life-annuity, had been paid his 
 allowance from the testator's death, which (amounting to 1050Z.) 
 was admitted to be equal in value with such an annuity, and in 
 consequence had overdrawn the estate of the testator, the Court 
 was of opinion, that the legacy should be reduced in the latter 
 sum ; and it adopted the following arrangement : Interest was di- 
 rected to be computed .on the legacy of 30001. ; and the 1050J. was 
 to be considered as so much received by George on account of 
 principal and interest. 
 
 (/i) 9 Ves. 6. (y) 2 Wils. C. C. 79. 3 Swan. 482. S. C.
 
 SECT. VII.] payable out of Personal Estate. 429 
 
 4. Legacies are sometimes given to persons generally, with the 
 additional expressions, " to be at their disposal." Those bequests 
 are considered to be immediate vested interests in the legatees, so 
 as to be transmissible to their personal representatives, although they 
 make no disposition of the property. 
 
 Thus in Robinson v. Dusgate,(r) the testator devised lands to B. 
 for life, remainder to C. in fee, he paying 400/. ; 2001. of which to 
 be "at the disposal of his wife by will, to whom she should think fit 
 to give the same." The wife died intestate, and the plaintiff, her 
 administrator, claimed the 200Z. The Court was of opinion, that the 
 whole interest and property in the money vested in the wife, and 
 that her administrator was entitled to it. 
 
 The last case was followed by Sir Thomas Sewell, M. R. in Mas- 
 kelyne v. Maskelyne,(s) where the testator gave 2001. to his brother 
 James, " to be disposed of by will as he should think fit." Upon a 
 question, whether James had only a power to dispose of the money 
 by will, or took any and what interest in it, the Master of the Rolls 
 declared, that the legacy absolutely vested in James. 
 
 So in Hixon v. Oliver,(t) Mr. Oliver bequeathed 3001. to his wife, 
 " to be disposed of as she thought proper, to be paid after her death :" 
 a bequest placed between an annuity to the wife, and a specific le- 
 gacy of a leasehold house limited to her for life. The wife survived 
 the testator, and died intestate, having made no disposition of the 
 3001. Lord Erskine determined, that the wife took a vested abso- 
 lute interest in the legacy at the husband's death, which entitled her 
 administrator to receive it. 
 
 The legacy will equally vest in the legatee absolutely, although 
 it be given over in the event of his dying " without disposing of it ;" 
 because the absolute interest in the fund having once vested, to 
 which a power of spending or otherwise disposing of it is incident, 
 the executory limitation over of the property, '* if the legatee do not 
 dispose of it," is a conditional defeasance, repugnant to the original 
 bequest, and cannot therefore be supported ; consequently, the es- 
 tate of the legatee not being devested, his personal representative 
 will be entitled to the legacy, if it be not received by the legatee 
 during his life. 
 
 Upon this reasoning, Sir Thomas Plumer, M. R., decided the case 
 of Ross v. Ross,(u) in which the testator, a native of Scotland, gave 
 to his son James Ross 2000 J., payable at twenty-five, or between 
 twenty-one and twenty-five, at the discretion of his executors, with 
 intermediate interest for maintenance ; " and in case James should 
 not receive, or dispose of by will, or otherwise, in his lifetime, the 
 20001., then it should return, and be paid to the heir entail in pos- 
 session of the Shandwick estate for the time being." James, after 
 surviving the testator, attained twenty-five, and died intestate before 
 receipt of the money, which was claimed by his administrator, upon 
 the ground that James took a vested absolute interest, which was 
 not devested by his death without having disposed of the fund ; the 
 clause purporting to have that effect being repugnant and void. 
 And the Court was of that opinion, and decreed the legacy to the 
 administrator. 
 
 (r) 2 Vern. 181. (s) Ambl. 750. (f) 13 Ves, 108. () 1 Jac. & Walk. 154. 
 VOL. i. 31
 
 430 Of vested Legacies [Cn. X. 
 
 It is observable, in the cases we have just been considering, that 
 the bequests were made in forms, which imparted to the legatees 
 absolute dominion over the property, and amounted to absolute gifts 
 to them of the whole, interest in the subjects of disposition. But 
 when a particular estate is limited in the instrument, followed by a 
 declaration that the legatee may dispose of the fund, he will not take 
 a beneficial interest in the capital. He will have a mere power to 
 dispose of it, and no more ; because, where a limited interest is ex- 
 pressly given, its enlargement by implication will not be permitted. 
 If, then, the interest of 1000Z. be given to A. for life, with a declara- 
 tion that he may dispose of the principal at his death, the prior limi- 
 tation will not merge in the general power of disposition ; so that 
 A. will take a vested interest for life, with a power to appoint the 
 capital. 
 
 Thus in Nannock v. Horton,(x) Mr. Norman bequeathed to trus- 
 tees 8000J. three per cent, consols, to pay the dividends to his son 
 Robert for life, and after his death to pay and transfer 60001., part 
 of the capital, to such persons as Robert should appoint by deed or 
 will. The testator, by a codicil, directed that Robert should be paid 
 the dividends for life of 600CZ. only, part of the 8000Z. three per cent. 
 consols, and at his death he should be at liberty to dispose of 4000Z., 
 part of the 6000Z. three per cent, consols, instead of the whole of the 
 latter sum. The question was, whether, under the will and codicil 
 of the father, Robert, took a vested absolute interest in the 40001. 
 stock, or merely an estate for life, with a power of appointing the 
 capital*? And Lord Eldon determined that, under the will, Robert 
 was entitled for life only, with a power to appoint the 4000i!. stock ; 
 a right which was not varied by the codicil, except as to the quantum 
 of stock over which the power extended by the will. 
 
 5. When a legacy is expressed to be given to answer a particular 
 purpose for the benefit of the legatee, which purpose is disappoint- 
 ed, and cannot take effect. (?/) 
 
 Where a legacy is given to a person to answer a particular pur- 
 pose, to which it becomes impossible to appropriate it, but from no 
 fault in the legatee, he will be entitled to the money: as in instances 
 of a sum of money being left for the benefit of an infant, as an ap- 
 prentice fee, and he is never placed in the situation or character of 
 an apprentice ; or when a legacy is given to a person to assist him in 
 defraying the expenses necessary to procure priest's orders, and he 
 becomes a lunatic ; in each case the legacy will vest at the testa- 
 tor's death, and upon this principal : It is considered that the pro- 
 perty was intended for the legatee at all events, and that the mode 
 directed for its application was merely a secondary consideration, 
 and independent of the gift. 
 
 Accordingly, in Barlow v. Grant,(z) the bequest was of 30/. to Ji., 
 an infant, to bind him an apprentice. A. died before attaining a 
 proper age to be placed out an apprentice ; and the question was, 
 whether his executor was entitled to receive the money *? which de- 
 pended upon a preliminary question, whether A. took a vested in- 
 terest in the legacy <? The Court, in determining in favour of .#.'* 
 
 (x) 7 Ves. 392. 394. 398. and see "Law of Husband and Wife," 2vol. pp. 
 205, &c. 1 P. Will. 149. (t/) Vide sufira, p. 377. (z) 1 Vern. 255.
 
 SECT. VII.] payable out of Personal Estate. 431 
 
 executor, necessarily decided that Ji. took a vested interest in the 
 fund previously to his death. 
 
 Similar to the last is the case of Nemll v. JVewM,(a) in which the 
 testator gave 5001. to the eldest son of John Nevill, " to place him 
 out apprentice ; or, as in the registrar's book, " for putting him forth 
 either to law or merchandise." John had a son born after the death 
 of the testator, who claimed the legacy, although he was unfit to be 
 placed out as directed by the will. Yet the legacy was ordered to 
 be paid ; a decree which must have been founded upon the legatee's 
 having taken a vested interest in the money at the death of the tes- 
 tator. 
 
 So in Barton v. Cooke,(b) Mr. Cowling directed his executors to 
 apply " 1001. for the board and education of James Barton, until he 
 were fit to be put out apprentice, and that then they should pay the 
 further sum of 1001. with him as an apprentice fee." It appeared 
 that James attained the age of nineteen, but had not been placed 
 out an apprentice. The question was } whether he was entitled to 
 the legacies of IQQl. each; and Lord Alvanley decided in the affir- 
 mative, remarking, " that if a legacy be given for benefit of an infant 
 one way, and it cannot be so applied, it may be applied for his bene- 
 fit in another.(c) 
 
 CHAPTER XI. 
 
 Of vested Legacies payable out of Heal Estate. 
 
 HAVING in the last chapter treated of the vesting of legacies 
 payable out of personal estate, the subject next in order is the vest- 
 ing of legacies payable out of real property, and which will be dis- 
 cussed under the following arrangement : 
 
 SECT. I. Where the gift of a legacy or portion is immediate, 
 and the payment postponed until the legatee at- 
 tains twenty-one, or marries. 
 Legacy contingent so far as it affects the real 
 estate, and vested so far as regards the personal 
 estate. 
 
 SECT. II. When payment of the legacy or portion is not post- 
 poned on account of the age of the legatee or 
 child, but in regard to the convenience of the 
 person, or the circumstances of the estate charg- 
 ed with it. 
 
 Vested, although the legatee or child die before 
 the time of payment. 
 
 (a) 2 Vern. 431. ed by Raithby. . (A) 5 Ves. 462. 
 
 (c) See the case of Lewis v. Lewis, 1 Cox, 162. stated infra, Chap. XIV. sect. 
 2. sub-div. 4. See also Harnmond v. JVeame, 1 Swan. 35. infra.
 
 432 Of vested Legacies [Cn. XI 
 
 SECT. I Where the gift of a legacy or portion is immediate, 
 and the payment postponed until the legatee attains twenty- 
 one, or marries. 
 
 IT was noticed in the beginning of the second section of the last 
 chapter, that courts of equity, in their construction upon the vesting 
 of personal bequests make a difference when the words " payable" 
 or " paid," are or are not inserted in the form of the bequest ; de- 
 termining in the first case in favour of immediate vesting, and in 
 the second against it. These courts, however, have adopted the 
 above distinction as a mere positive rule, in compliance with the 
 practice of the Ecclesiastical Court, which in these matters has a 
 concurrent jurisdiction, and not from any conviction of the sound- 
 ness of the rule. They have, on the contrary, generally expressed a 
 disapprobation of the distinction, even where they have been under the 
 necessity of adopting it. ' In gifts, therefore, of legacies or portions 
 orignally payable out of, or charged upon real estate, as such dis- 
 positions are not within -the Ecclesiastical jurisdiction, Courts of 
 Equity have not found themselves obliged for the sake of conformity 
 to adopt the same rule of construction ; they have, therefore, re- 
 quired the whole condition, upon which the legacies or portions were 
 given to be complied with, viz. the attainment of the legatee to the 
 age of twenty-one, &c. ; nor do they admit of any exception whether 
 the legacies or portions were made payable at twenty-one, or given 
 at twenty-one, or with or without interest. This distinction, how- 
 ever, must be noticed, that when legacies or portions are charged 
 both upon the real and personal estates/ if the legatees die before 
 the time of payment, the legacies or portions will sink into the land, 
 in all cases where they would be held to sink, if the fund consisted 
 of real estate only ; and they will be considered vested, with re- 
 gard to the personal estate, in all cases in which the same would be 
 so adjudged, if the fund consisted of personal property only. And 
 it is immaterial whether the provisions be made by deed or will. 
 
 The case of Pawlett v. Pawlett(a} is a leading one upon the pre- 
 sent subject. Lord Pawlett settled by deed real property in trustees 
 for a term of years in remainder after his death, upon trust, after pay- 
 ment of his debts, to pay such sums of money and maintenance for 
 younger children, as his Lordship should appoint by will ; and, in 
 default of appointment, to raise 4000/. a-piece for each such child, 
 payable at twenty-one or marriage, with maintenance in the inter- 
 mediate time. Lord Pawlett appointed by will to his two daughters, 
 and only younger children, Susanna and Fere, 4000J. each, to be 
 raised and paid in manner, and at the times, and with the mainte- 
 nance prescribed by the deed. Both daughters survived him. But 
 ^ ere died under age, and unmarried, before any part of her portion 
 could be raised ; and her mother was her administratrix, who claim- 
 ed her portion. The question was, whether such claim could be 
 supported, as Fere died under twenty-one, and unmarried. And the 
 Lord Keeper determined in the negative : observing, that " the por- 
 tion was to come wholly out of the lands, and the personal estate 
 no way subjected or made liable to the payment of it by the will." 
 
 (a) 1 Vern. 321. affirmed by the House of Lords.
 
 SECT. I.] payable out of Real Estate. 433 
 
 Upon the authority of the last case, the Master of the Rolls de- 
 cided that of Smith v. Smith,(b) in which a testator devised real 
 estates to his son at the age of twenty-one, charged with SQ much 
 of his daughter's portion, as should not.be raised by his executors 
 and trustees before that period ; and he gave to his daughter 1000/., 
 to be paid at twenty-one or marriage, and to be raised out of the 
 rents and profits of the lands ; but if his son died under, age, &c. 
 he gave the estates to B., who was to make the portion 2000Z. At 
 the death of the testator, his son and daughter were infants ; the 
 elder not being more than, three years old. The daughter died 
 shortly after the testator, an infant and unmarred, as did the son 
 under twenty-one, after surviving the daughter. Their mother, who 
 was the personal representative of the daughter, claimed either the 
 whole or some part of the 2000Z., insisting, that her daughter took 
 a vested interest, although she died during infancy and unmarried. 
 But the Court was of a different opinion, upon the ground that 
 the provision was a portion, payable out of real estate, which failed 
 by the death of the daughter before the time appointed for raising it. 
 
 The next case decided upon the authority of Pawlett v. Pawlett, 
 was Yates v. Phettiplace.(c) There the testator gave to his daugh- 
 ter a portion of 3000i., directing that if his personal estate should 
 be applied in discharging a debt Ke owed upon mortgage, the mort- 
 gage should be kept on foot to make good the portion, which was 
 to be paid at twenty-one or marriage with consent, but .reducible to 
 100QJ. if his daughter married without consent. The daughter died 
 at six years of age, and it was adjudged by Lord Somers, that the 
 portion should not be raised for her administratrix. 
 
 In allusion to that case, Lord Hardwicke said it was rightly de- 
 cided, for if the portion had vested, and it ha'd been charged upon 
 the personalty only, it would have been transmissible ; but being 
 originally a charge upon the lands, and the legatee dying before 
 the day of payment, it lapsed to sink into the inheritance for the 
 benefit of the heir, according to the established rule of a court of 
 equity. 
 
 In order to make the portion originally payable out of the real 
 estate, his Lordship must have considered that such was the testa- 
 tor's intention, as appeared from the direction given respecting the 
 mortgage, the effect of which was to fix the land with the amount 
 of the portion under any circumstances. For if the personalty were 
 applied in -exonerating the real estate of the mortgage, the portion 
 was to be substituted in the place of the debt ; or, if the debt was 
 paid out of the lands, then the personal fund, to the extent of the 
 3000/., which, in the ordinary administration of assets, was first liable 
 to exonerate the real estate of the debt, being saved to the personal, 
 would amount, in substance to the application of so much of the 
 real proceeds, in discharge of the portion. Hence, the portion being 
 solely payable out of the land to the daughter at twenty-one, her 
 death under that age necessarily occasioned a lapse of it in favour 
 of the heir, according to the rule before mentioned ; a rule founded 
 upon this reason, as expressed by Lord Hardwicke to the following 
 
 '() 2 Vem. 92. 
 
 (c) 2 Vern. 416. Pre. Ch. 140. S. C. approved by Lord Hardwicke in Reynish 
 v. Martin, 3 Atk. 335,
 
 434 Of vested Legacies [Cn. XI- 
 
 effect: "I have often heard it said, that the reason why legacies, 
 &c. charged on land, payable at a future day, shall not be raised if 
 the legatee die before the day of payment^ though it is otherwise in 
 the case of a charge on the personal estate, is this, that the heir is 
 a favourite with a court of equity, and ought to have the preference 
 of the representative of a legatee ; and likewise, that the Court will 
 go as far as it can in keeping the real estate entire, and as free from 
 incumbrances as possible. But I think the Court has never gone 
 upon such reason, but the true reason I take to be, that the Court 
 will govern itself, so far as is consistent with equity, by the rules of 
 the common law. In the instance of personal estate, the rule is the 
 same here as in the civil law, that there may be uniformity of judg- 
 ments in the different Courts ; but in the case of lands, the rule of 
 the common law has always been adhered to : as suppose a person 
 should covenant to pay money to another at a future day ; if the 
 covenantee die before the day of payment, the money is not due to 
 his representatives."^) 
 
 Similar to, and upon the authority of, the last case, Sir Joseph 
 Jekyll determined that of Jennings v. Looks,(e) in which a testator, 
 having two sons named Richard and Thomas, and being seised in 
 fee of the manor ofBlackacre (which was in mortgage,) devised 1000Z. 
 to Thomas (then a year old,) to be paid to him at twenty-one out of 
 that manor : with a power to the executor, by selling timber, to raise 
 money in aid of his personal estate, to pay debts and legacies. 
 Thomas died about the age of two years, and Richard at the age of 
 six ; upon which the manor devolved to the uncle. The question 
 was, whether the administratrix of Thomas was entitled to the por- 
 tion 9 And the Court decided in the negative, as Thomas died be- 
 fore twenty-one, and the portion was payable only out of the lands ; 
 but Sir Joseph Jekyll observed, " that were the legacy chargeable 
 on the personal, as well as the real estate, then so much thereof as 
 the personal fund would extend to pay, should go to the executors 
 or administrators of the child." 
 
 Upon the strength of the two last authorities, Lord King deter- 
 mined the case of the Duke of Chandos v. Talbot:(f) a case, 
 where both the real and personal funds were charged with the pay- 
 ment of legacies, and resort was necessary to be made to the real 
 estate in aid of the personal. 
 
 There Sir T. Doleman bequeathed to his nephew Thomas 500Z. 
 payable at the age of twenty-five. He also devised his real estates 
 to trustees, charged with the payment of debts, and legacies. Thomas, 
 having survived the testator, died at the age of sixteen. From the 
 state of the real and personal assets, it became necessary for the 
 Court to determine, whether all or what proportion of the 500Z. was 
 to be paid, regard being had to the circumstance of the legatee not 
 having lived to the age of twenty-five. And the Court decided, 
 that so much of the legacy as was to affect the real estate failed by 
 the death of Thomas under twenty-five ; and that such part of it as 
 the personal estate was sufficient to answer vested in the legatee, 
 and was transmissible to his personal representative. Lord King 
 observed upon this occasion, that there was no difference where the 
 
 (d) lAtk. 486. (e) 2 P. Will. 276. (/) 2 P. Will. 602. 612.
 
 SECT. I.] payable out of Real Estate. 435 
 
 real. as well as the personal estate were charged; for in such case, 
 so far as the executor or administrator claimed out of the latter 
 fund, he should succeed, according to the rule of the Ecclesiastical 
 Court,(g) in which those things were determinable, even although 
 the infant legatee died before the time of payment ; but that so far 
 as the legacy was charged upon the land, so far should it, upon the 
 legatee dying before the money became payable, sink ; a rule, which 
 having of late universally prevailed, whether the legatee were a 
 child or a stranger, it would be of the most dangerous consequence, 
 and disturb a great deal of property, to break into it." 
 
 Lord Hardwicke acknowledged the force of these observations 
 on a subsequent occasion. His Lordship said, " he thought it very 
 extraordinary, that when the real estate was only an auxiliary fund 
 fund to the personal, it should be chargeable in a different manner, 
 and not be liable to the same rules and determinations as the pri- 
 mary security, the personal estate. But he found the resolutions so 
 strong, that there was no difference between a charge on the real 
 estate only, and a charge upon the real and personal property, that 
 he could not make a contrary determination." His Lordship 
 therefore, acted upon the preceding authorities in the following 
 instance : 
 
 In Prowse v. 3bingdon,(h} Mr. Compton, after directing his 
 trustees and executors to sell part of his real estate, towards satis- 
 faction of debts, and to stand seised of the remainder, upon trust, 
 by the means mentioned in his will, to pay all his debts and lega- 
 cies, remainder to the use of Mrs. tflbingdon for life, &c. gave to 
 his nephew Thomas Proivse a legacy of 5001. to be paid at twenty- 
 one or marriage. Thomas never married, and died under twenty- 
 one ; and it became necessary to resort to the real fund charged 
 with debts and legacies, for payment of the legacy of 5001., if the 
 administrator of Thomas were entitled to receive it, notwithstand- 
 ing the death of the latter during infancy. But Lord Hardwicke 
 was of opinion against the claim, upon the principle, that as Thomas 
 died under twenty-one, he did not take a vested interest in the 
 money, so far as concerned the real estate. 
 
 In the last case, it was attempted to induce the Court so to mar- 
 shal the real and personal assets as to confine the creditors to the 
 former, in order that sufficient of the latter might be left to answer 
 the legacy ; in which event, the administrator of Thomas would 
 have been entitled to the money, as being payable out of the per- 
 sonal estate. Lord Hardwicke, however, was of opinion, that the 
 point so raised could not be maintained ; for the rule of thus mar- 
 shalling the assets only applies, where it is proper to be done, at 
 the time the legacy first takes place, and not where it is owing to a 
 fact which happens subsequently to the death of the testator, and to 
 a mere accident, as the death of the legatee before twenty-one. 
 
 The next case is an authority that a gift of interest, until the le- 
 gacy become due, will not vest the principal ; but that if the lega- 
 tee die before time of payment, the money will sink into the real 
 estate. 
 
 () See last chapter, sect. 2. (A) 1 Atk, 482, and see Van v. Clark, ibid. 510.
 
 436 Of vested Legacies [Cn. XL 
 
 In Gawlerv. Standerwicke,(i) at the Rolls, 15 November 1787, 
 legacies were given to infants out of lands (charged generally with 
 debts) payable at twenty-one, with interest at three per cent. One 
 of the infants having died before that age, Lord Kenyan, after great 
 consideration, decreed, that the legacy of the deceased child was 
 not to be raised. 
 
 The last case which we shall cite is Harrison v. Naylor.(k] Mr. 
 Naylor bequeathed 50002. to his natural daughter Elizabeth, and 
 30002. to his unborn child, to be paid to them respectively at twen- 
 ty-one ; and he directed those legacies to be collected and raised in 
 the manner and by the means thereinafter pointed out and explained. 
 He then ordered his executors to invest his residuary personal estate 
 in Bank stock, and to lay it out in the purchase of a freehold estate, 
 which he devised to his natural son as therein mentioned. The tes- 
 tator, after providing out of the rents a maintenance for his children, 
 directed his executors to apply " the residue of the rents and profits 
 of the said estate to the purpose of raising and providing the lega- 
 cies thereby given to his said natural children ; and if the said rents 
 and profits proved insufficient, then he made the estate, so to be 
 purchased, chargeable with the payment thereof." The child, who 
 was unborn at the date of the will, died an infant, to whom admin- 
 istration was obtained by authority of a sign manual. And the ques- 
 tion was, whether the administrator was entitled to the 30002. as the 
 legatee died before the time of payment *? From the peculiarity of 
 the bequest, Lord Thurlow at first doubted whether this was not a 
 mere personal legacy ; but he was finally of opinion that it was pay- 
 able out of land, for such the residuary estate was to be considered. 
 His Lordship observed, that the testator, having referred to the man- 
 ner in which the legacy was to be raised, provided for the payment 
 of it out of his real estate ; and that the moment the residue ought 
 to be laid out in land, it was to be considered as a real fund, and 
 therefore within the common rule. 
 
 Such is the general rule in regard to the vesting of legacies or 
 portions primarily given out of, or secondarily made charges upon, 
 real estate. But Courts of Equity have allowed and established ex- 
 ceptions to it in particular instances ; as, when the condition annex- 
 ed to the legacy or portion had respect to the circumstances of the 
 estate, and not to the person of the legatee. In those cases they 
 have considered, that a benefit was at all events intended for the 
 legatee, and that the time of payment alone was deferred, with a 
 view to the convenience of the estate, and not to prevent the lega- 
 cy from sooner' vesting. These exceptions it is proposed to consider 
 under the following title : 
 
 SECT. II. When payment of a Legacy or Portion is not post- 
 poned on account of the age of the Legatee or Child, but in 
 regard to the convenience of the person, or the circumstan- 
 ces of the estate charged with it. 
 An instance, where such a postponement of paying a legacy or 
 
 Bro. C. C. 106. in a note to Green v. Pigot. 
 
 3 Bro. C. C. 108. 2 Cox, 247. 5. C. and see Phijijis v. Lord Mulgrave, 
 613. also Pearce v. Loman, ibid. 135.
 
 SECT. I.] payable out of Real Estate. 437 
 
 portion will not prevent its vesting, may be thus supposed. If lands 
 be devised to A. for life, remainder to B. charged with a legacy or 
 portion for C. upon the death of ./2. ; in this and similar cases, al- 
 though C. happen to die before A. yet his personal representative 
 will be entitled to the legacy.; because the interest in it is vested in 
 C. at the death of the testator, the time of payment being only de- 
 ferred for the benefit of 'A. until B. came into possession of the es- 
 tate. The real property is not (as in the instances produced in the 
 last section) merely created a fund for the payment of the legacy or 
 portion to C. at a future period on account of his age and unfitness 
 to receive it ooner, but the estate is devised in remainder equally 
 for the benefit of B. and C. ; the interests -of B. and C. vest toge- 
 ther, for the testator Intended to divide the estate between them. B. 
 was to take the estate minus in value, by so much as the legacy or 
 portion to C. amounted to. It will appear from the authorities be- 
 low stated, that in determining cases according to this distinction, 
 the Court of-Chancery has, in several of them, laid particular stress 
 on the fact, that the charge of the legacies upon the land was not 
 merely equitable but legal, and would have, enabled the representa- 
 tives of the legatee, who died before the time of payment, to recover 
 the money in a Court of Law. 
 
 The first case, where .a legacy, payable out of the real estate at a 
 future time, was determined to be vested before the arrival of that 
 period, was Kingv. fVithers,(l) in which Mr. Withers bequeathed to 
 his daughter Mary, at twenty-one or marriage, 2500J., declaring that 
 if his son Charles should die without issue male then living, or which 
 might be afterwards born, Mary, should receive an additional sum 
 of 3500J. at twenty-one or marriage. But if the contingency of his 
 son's death did' not happen before Mary attained twenty-one or mar- 
 ried, she was nevertheless to be paid the 3500& whenever his son died. 
 The testator then devised his real estate to. his son in tail, remainder 
 to his brother in fee ; and charged that estate with the payment of 
 the 35001. " whenever it should b'ecome due and payable," directing, 
 in case of failure of issue of his son, that Mary, her heirs or assigns, 
 should join in a surrender of some copyholds to the use of his bro- 
 ther, or the bequest of the 3500Z. was to be void. Mary having at- 
 tained twenty-one, died before her brother, who also died without 
 male issue, and the 3500Z. was claimed by her administrator. The 
 question was, whether the money was to be raised out of the land, 
 the personal estate being deficient 9 which depended upon this ; 
 whether such an interest in it vested in Mary, as to be transmissible 
 to her personal representative, although she died before the period 
 when it was made payable 9 And Lord Tatbot decreed in the 
 affirmative. 
 
 The decree appears to have been founded'upon the principle that 
 the time of payment was merely postponed, in favour of Charles and 
 his issue, and not in respect of the age or person of his sister, who 
 was to .receive the 3000/. whenever Charles died without issue. 
 The ' remainder to the brother, and the charge 'upon it, vested at, 
 
 the same instant. It was as much the intention of the testator that 
 
 . 
 
 (/) Forrest. . 117. Decree affirmed by the house of Lords, .? Bro. Parl. Ca. 135. 
 8vo. ed. 
 
 vofi,. i. 3 K
 
 438 Of vested Legacies [Cn. XI. 
 
 Mary should have the 3500J., as that the brother should succeed 
 to the estate ; and it clearly appeared that the testator meant to in- 
 crease his daughter's provision, in the event of Charles's death 
 without issue. It is therefore obvious, that this case is an excep- 
 tion, upon sound principle, to the rule stated in the preceding 
 section. 
 
 The last case was followed by Hutchins v. Foy,(m} where the 
 testator devised his real and personal estates to Thomas Beal for 
 life, remainder to his children, remainder to his sister Martha, for 
 life, remainder to John Beal for life, and afterwards to his children, 
 with remainder, as to a moiety of the real estate, to the defendant 
 Foy in fee, " paying out of it, when it falls 500Z.,-" 50Z. of which 
 he gave to Margaret, a daughter of his sister Martha. Margaret 
 died before Thomas Beal, and the remainder to Foy having come 
 into possession, Margaret's administrator claimed the 50J. ; con- 
 tending that she took a vested interest in that sum at the death of 
 the devisor, which entitled her personal representative to receive it; 
 and so the Court determined. 
 
 The reasons for such decision were these : First, because the re- 
 mainder to Foy, and the 50Z. out of it, vested immediately upon the 
 demise of the testator; and, secondly, because the estate and the 
 charge upon it passed together, so that the devisee took the estate 
 cum onere; for, since it was the testator's "intention that Foy should 
 have the -estate, it was as- much his intention that Foy should pay 
 the money out of it y when the possession came to him, and the 
 word " paying" clearly showed the intent of the testator, that Foy 
 should not have the land unless he paid the money. 
 
 So in Lowther v. Condon,(n) a case maturely considered by Lord 
 Hardwicke, in which Mr. Condon, having a son, and also two 
 daughters, Isabella and Diana, bequeathed to each daughter 5001. 
 to be raised and paid out of the rents, or by sale or mortgage of 
 specific lands immediately after his death, together with interest 
 from that period until the legacies were paid to them, " or their 
 respective executors, administrators, or assigns." The testator fur- 
 ther gave to each daughter 1 000Z. to be raised and paid " imme- 
 diately after the decease of his wife," by the means before men- 
 tioned, with interest from the wife's death until the money was paid 
 to them, " or their respective executors, administrators, or assigns." 
 And the testator declared, that if either daughter died before him, 
 the survivor, her executory, administrators, and assigns, should re- 
 ceive the whole of the legacies ; and in such case, the part of the 
 daughter so dying should not cease, or sink into the estate for the be- 
 nefit of the heir, but should remain and be raised for the benefit of 
 the surviving daughter^ Diana, after surviving the testator, died 
 during the life of her mother, and Diana's husband claimed, as her 
 administrator, to have the WOOL raised out of the real estate, the 
 mother being dead ; a claim which depended upon this, whether, 
 notwithstanding Diana died before her mother, the period when 
 the legacy was to be raised, she took such an interest in it, as was 
 transmissible to her personal representative ? And Lord Hardwicke 
 decided in the affirmative. 
 
 (w) 'Com. Rep. 716. m - (n) 2 Atk. 127. .
 
 SECT. I.] pay able out of Real Estate. 439 
 
 In pronouncing judgment in the last case, Lord Hardwicke ad- 
 verted to the distinction, before mentioned, where the time of pay- 
 ing a legacy is postponed, in consequence of the circumstances of 
 the estate, and not in consequence of the circumstances of the 
 legatee But it was unnecessary, in the present instance, to rely 
 alone upon that distinction, in order to give vested interests to the 
 daughters ; for his Lordship, as he declared, founded his opinion 
 principally upon the clause in the will, providing against lapse, if 
 either daughter died before the testator ; from which he drew the 
 conclusion, that the testator's having shown so decided an inten- 
 tion to prevent the legacy from sinking into the land, upon the hap- 
 pening of the event just mentioned, afforded a very powerful reason 
 for inferring that he did not mean it to sink into the estate, if the 
 daughters survived him. Lord Hardwicke was therefore of opinion, 
 that the clause alluded to afforded a plain indication of the testator's 
 intention, that his daughters should have their legacies at all events, 
 totally independent of 4he accident of their dying during the. life of 
 their mother. 
 
 The same Judge made a similar decision in Ernes v. Hancock,(o) 
 which in circumstances differs from the preceding authorities stated 
 in this section There Mr. Hancock devised his copyhold estate to 
 his wife for life, remainder to his son Stephen until his grandson 
 Thomas attained the age of twenty-three ; at which time he gave 
 the property to Thomas in fee, on condition that he, his heirs, or 
 assigns, paid or caused to be paid to his grand-daughter Elizabeth, 
 60Z. within two years after his attaining twenty-three ; but, if he 
 (Thomas) happened to die without issue, then the testator devised 
 the copyhold to his son Stephen in fee, on condition of paying 100Z. 
 to Elizabeth, within one year after he enjoyed the estate under the last 
 devise ; and upon default in payment by Stephen or Thomas of the 
 601. a right of entry on the estate was given to Elizabeth, her ex- 
 ecutors and administrators. Elizabeth^ after surviving the testator, 
 married the plaintiff, and lived till after Jier brother Thomas ar- 
 rived at the age of twenty-three, but died before the expiration 
 of the two years after Thomas attained that age. The question 
 was, whether the plaintiff, Elizabeth's personal representative, was 
 entitled to the legacy 9 And Lord Hardwicke determined in his 
 favour. 
 
 The case of King v. Withers, before stated, (p) is a direct authori- 
 ty for the vesting of the interest in Elizabeth, notwithstanding she 
 did not survive the two years after her brother Thomas attained his 
 age of twenty-three. Lord Hardwicke observed, " That the testa- 
 tor's appointing two years after Thomas, attained twenty-three, for 
 raising the 601. , seemed to be done merely for the convenience of 
 the estate." But his Lordship chiefly relied upon the title, which 
 Elizabeth, and her executors or administaators, had at law, under 
 the will, to recover the money. The devise operated as a condi- 
 tional limitation ;(<?) and, in default of payment, she or her person- 
 al representatives might have entered upon the estate. (r) The 
 death of Elizabeth within the two years was at law, neither the 
 breach of any condition, nor any excuse for withholding the 601. 
 
 (o) 2 Atk. 507. ( /?) Ante, p. 437. (y) See 2 Black. Com. 155. (r) 3 Atk. 322.
 
 440 Of vested Legacies [Cn. XI. 
 
 But the condition for payment of it subsisted after the testator's 
 death, for the breach of which, the plaintiff, as administrator of 
 rjizabeth, had a legal remedy. Such being the right of the plain- 
 tiff at law to the money, a court of equity would neither deprive 
 him of it, nor refuse to grant relief merely because he had a legal 
 title ; for the consequence of such refusal would have been, that if 
 the plaintiff obtained a judgment in ejectment, the defendant might 
 have come into equity for a redemption upon payment of the 60J ; 
 a circuity and multiplication of suits which the Court always 
 avoids.() For these reasons, Lord Hardwicke ordered the money 
 to be raised and paid to the plaintiff. 
 
 The next case nearly resembles the last, and is another instance, 
 where the charge on real estate was legal, and not merely equita- 
 ble, as in several of the cases. . 
 
 In Shermanv. Collins,(t) Mr. Collins bequeathed to each of his 
 daughters, Mary and Ann, 300/., to be paid to them when his son 
 John attained the age of twenty-six, withoiltrintermediate interest ; 
 and he charged the two legacies upon his real and personal estates, 
 and gave to the legatees a right of entry upon the reality, to hold 
 until the money, with interest from the time it became due, was 
 paid ; and after such payment, he devised the real estate to his son 
 John in fee ; who attained the age of twenty-six, but Ann and Ma- 
 ry died before John attained that age, they having first arrived at the 
 age of twenty-one. One of them married and left children ; the 
 other died unmarried, and bequeathed her legacy to her sister ; 
 whose husband and two children claimed both legacies, though 
 each sister died before their brother John attained the age of twen- 
 ty-six. And Lord Hardwicke decreed in their favour, notwith- 
 standing it should be necessary to resort to the real estate, in 
 aid of the personal fund, which was first applicable to those 
 demands. 
 
 We here observe the uniformity of principle which pervades this 
 and the preceding cases. . It is obvious that the time of paying the 
 legacies of 300/. was merely postponed, to prevent the burthen of 
 interest falling upon the estate of John, until he attained the age 
 of twentyrsix. And when the testator had given this express rea- 
 son for the postponement, it would have been a very unnatural 
 construction, to infer that the daughters or their representatives 
 should lose the legacies, because the former happened to die before 
 John attained the above age. The legacies, therefore, vested in 
 each daughter, the payment being deferred for the conveniency of 
 the estate, and not in respect of the circumstances of the legatees. 
 Besides the daughters and their personal representatives had the 
 same legal title to recover the legacies, as Elizabeth Hancock and 
 her representatives, in the case of Ernes v. Hancock ; a circum- 
 stance upon which Lord Hardwicke placed* reliance, in pronouncing 
 his judgments in both cases. 
 
 The observations that have been made, also apply to the case of 
 Hodgson v. Rawson,(u) in which. Mr. Hollins devised part of his 
 
 (s) 3 Atk. 322. . (,) 3 Atk. 319. 
 
 (w) 1 Ves. sen. 44. and see Wilson v. Shencer, stated by Lord Hardwicke in 
 this case, ibid. 48. and in 3 P. Will. 172,
 
 SECT. I.] payable out of Real Estate. 441 
 
 real estate to his mother for life, with remainder to William Rawson 
 and his heir's, he and they paying out of it legacies to several per- 
 sons ; the sums to be paid within twelve months next after the mo- 
 ther's decease ; and he charged the estate with them accordingly. 
 The mother entered upon the estate, and a month after her death, 
 B. a legatee of 100Z. died, whose t personal representatives claimed 
 the money, although B. did not survive the mother a twelve month; 
 the period appointed for its payment. Yet Lord Hardwicke determin- 
 ed that they were entitled to the legacy ; 1st, because the estate was 
 liable at law to the payment of the legacies ; the devise to William 
 being a condition, of which, if broken, the testator's heir might take 
 advantage by entry, but who would hold the estate under the charge 
 in the will, subject to the legacies ; 2dly, because the remainder and 
 the charge upon it vested at one and the same instant, it having 
 been equally the intention of the testator, that the legacies should 
 be paid/as that the remainder-man should have the estate ; and last- 
 ly, because the postponement of paying the legacies, till twelve 
 months after the mother's death, was not intended to suspend the 
 vesting, but merely as an allowance of a reasonable time to the de- 
 visee in remainder, after the estate came into possession, to make 
 the payments charged upon it. 
 
 Similar to the last case is Tunstall v. Brachen,(x) where the tes- 
 tator devised an estate to one of his sisters and co-heiresses, paying 
 1-OOZ. a year to his wife for life, and within twelve months after the 
 wife's death to pay several legacies. Some of the legatees who sur- 
 vived the testator, died before his wife ; and Lord Hardwicke held 
 that they took vested interests, which entitled their personal repre- 
 sentatives to payment of the money ; upon the principle, that the 
 time of payment was only deferred for the convenience of the estate, 
 and that the rights of the legatees were not merely equitable, but 
 available at law. 
 
 So in Embrey v. Martin,(y) Mr. JVea&on devised his freehold es- 
 tates to his son John in tail, remainder to his daughter Prudence in 
 tail, remainder to his daughter Elizabeth for life, remainder to her 
 son John Trigg in fee, upon condition that he paid to his sister Mrs. 
 Embrey, 1 001. at or soon after his being possessed of the premises ; 
 and for non-payment, the estates should be to Mrs. Embrey <> &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, 
 (<?) that where there is such an executory bequest over, the condi- 
 tion is valid. 
 
 But there does not seem to.be any direct authority which esta- 
 blishes that a mere simple condition, requiring the marriage of the 
 legatee precedent to the bequest, is valid. There is however a dic- 
 tum of Sir Thomas Plumer, V. C. in Malcolm v. O' Callaghan,(r) 
 that in such an instance, if there was no bequest over, the restriction 
 would be void. That was the case of a legacy made payable upon 
 marriage with the consent and approbation of executors, with a limi- 
 tation over upon a marriage without such consent. His Honour de- 
 termined upon the effect of the bequest over, that the condition was 
 obligatory, which, having been broken, the limitation over took place. 
 
 The dictum of Sir Thomas Plumer, in the last case, seems ex- 
 posed to this objection, that the ancient rule of the civil law after- 
 wards became greatly restricted, and it was finally settled, that 
 conditions which did not directly or indirectly import an absolute 
 injunction to celibacy were good.(s) Hence the preliminary requi- 
 site of marriage with consent at any time, being neither a general 
 nor a fraudulent restraint upon marriage, as such conditions are not 
 void by the Civil law, there appears to be no reason why they should 
 be so by our own.() 
 
 (/O Ante, p. 505. (q\_Ante, p. 508. (r) 2 Mad. 349. 353. 
 
 (s) Swinb. pt. 4. sect.. 12. 2 Dick. 721. 
 
 (t) See Lord Eldon's declaration in Clarke v. Parker, 19 Ves. 15. D'Aguilar 
 v. Drinkwater, 2 Ves. & Bea. 226. and Sir W. Grants observations in Lloyd v. 
 Branton, 3 Meriv. 116.
 
 SECT. I.] upon Condition. 511 
 
 In this view of the law upon the present subject, it follows, that, 
 if there be two provisions for the legatee in the same will, but one 
 of them is made to arise upon marriage generally with consent as a 
 precedent condition, the condition is valid and must be performed, 
 whether there be a limitation over of the legacy, or not. 
 
 This was so determined by the Lord Keeper in Creagh v. Wil- 
 son,(ii) a case in which Mr. Wilson bequeathed to his grand-daugh- 
 ter Elizabeth 200. provided she continued with his executors till 
 twenty-one; but if she were taken from them by her father (a 
 Roman Catholic) before she attained that age, or "in case she 
 married against the consent of. his executors, he gave her only 
 10/." Elizabeth paid her father a visit with the assent of one of the 
 executors, during her minority, who took that opportunity of marry- 
 ing her to a papist without the executor's consent. She and her 
 husband obtained a decree at the Rolls for the legacy of 200J. which 
 was reversed by the Lord Keeper, upon the principle, that the con- 
 dition requiring consent being precedent, Elizabeth did not answer 
 the description of the bequest. 
 
 So in Gillet v. Wray,(x) the testator gave his grand-daughter an 
 annuity of 101. for life ; and by a codicil declared, that " if she mar- 
 ried with the good liking of his trustees, then she should have 150i. 
 in lieu of the annuity, which was to cease." The grandrdaughter 
 married without the required consent, and Lord Cowper determined 
 that she was not entitled to the 150Z. 
 
 The cases upon these conditions cannot be expected to agree 
 since they were adjudged at periods when the Courts paid more or 
 less attention to the Civil code. We consequently find an old case 
 of Hicks v. Pendarvis,(y) on alternative bequests, in which Hale, 
 C. J. decided, that the preceding condition requiring marriage with 
 consent was in terrorem, and decreed the larger legacy to the lega- 
 tee, although sh^ married without consent : a determination over- 
 ruled by the' two more recent cases last stated. (z] 
 
 Since the rigour of the ancient rule of the Civil law was corrected 
 and moderated as before- stated, (a) and conditions not absolutely 
 prohibiting marriage were allowed to be good, (6) it is a consequence 
 that conditions, which require or prohibit marriages with particular 
 persons,(c) or limit marriages to particular families,(d) or which pre- 
 scribe the due ceremonies and the place of marriage, (as if the be- 
 quest were made to depend upon the legatee marrying in the city of 
 York,)(e] are valid, and must be complied with. 
 
 If such be now the settled validity of precedent conditions in re- 
 straint of marriage, when the subject is personal legacy^ a fortiori, 
 the rule is the same when real estate is devised upon lift like con- 
 ditions, or the legacy must be paid out of it. For at all times these 
 conditions were binding by.the Common law ; and as the Ecclesias- 
 tical courts had no jurisdiction over that species of property, the 
 temporal courts were not fettered by the adjudications of the former 
 tribunals according to the ancient rule of the Civil code.(/) 
 
 () 2 Vern. 572. (*) 1 P. Will. 284. (t/) 2 Eq. Ca. Abr. 212. (D.) pi. J. 
 (z) And see 2 Dick. 722. n () ^te, p. 508. 
 
 (WseeSwinb. pt 4. sect. l.fia**im. (c) 2 Dick. 721. Perrinv.Lyon, 9 bast. .170. 
 V) 1 Bro. C. C. 55. (0 S w jnb. pt. 4. sect. 12. art, 12. 2 Bro . C. C. 488. 
 ( /) See Reynish v. Martin, 3 Atk. 330. Reeves v. Herne, 5 Vm. Abr. 343. pi. 
 41. and Harvey v. Aston, 1 Atk. 361.
 
 512 Of Legacies [Cn. XIII. 
 
 Not only .conditions, which interfered with the liberty of marriage, 
 were held to be illegal and void by the Civil law, as we have seen, 
 but also conditions which had a tendency to infringe upon the 
 liberty of another, person's testamentary disposition. The latter 
 conditions had the epithet of captious given to them. 
 
 Accordingly, if a legacy were given by A. to B., upon condition 
 that B. should leave A. the like legacy by his testament, such con- 
 dition would be void by the Civil law, first, because it is considered 
 as inconsistent with that freedom of will which B. ought to possess 
 at the time of making his testament; and secondly, because such 
 condition is presumed to be clothed with artifice, and inserted by 
 A. with a view of obtaining undue advantage over B. So odious 
 are these conditions to the Civil law, that they are declared void, 
 although inserted in testaments purely military, or in the testaments 
 of fathers providing for their children, or in testaments ad pias 
 causas, and the like. If however the condition had no reference to 
 the future act of the legatee, but the terms of the bequest were in 
 substance as follow; viz. "I bequeath to A. 10GZ. if he has bequeath- 
 ed to me a like sum by his will," the condition would be supported, 
 as it was apparent that 'the condition did not in the least interfere 
 with A, 's liberty of disposition, and therefore the case did not fall 
 within the law of captious bequests. (g) 
 
 A second class of captious bequests depending upon similar rea- 
 soning is, when a testament is said to depend upon the will or ap- 
 pointment of another person. Suppose, then, C. to bequeath a 
 legacy of 501. to A. if B. will, or .to such person as A. shall appoint, 
 the legacies would be void by the Civil law.(^) The first case would 
 be so adjudged for this reason, viz. that ancient legislators consider- 
 ed, if testators were permitted to. refer -their testaments- to the wills 
 of other persons for effect, it would open a spring for fraud, by put- 
 ting it in the power of the person depended upon^to disappoint the 
 person intended to be benefitted by the testator. The second case 
 would be adjudged void, because, by the Civil law, testators are not 
 invested with the power to refer the substance of their wills, to the 
 arbitrium of other persons, the power of disposition being consider- 
 ed as annexed to the person of. the testator, and incapable of dele- 
 gation, except in the particular cases mentioned in Swinburne. 
 
 Such being the rule. of the Civil law concerning bequests, which 
 it terms captious, it may be asked, whether courts of Equity have 
 adopted its reasoning in similar instances ? With regard to the first 
 class of these bequestSj there does not appear to be any case in which 
 those courtsfrfiave been called upon to decide the precise question. 
 The reasorfs given by the Civil law for rejecting them are not desti- 
 tute of policy and wisdom, and therefore entitled to respect. The 
 reason, says Swinburne, referring to authorities, why these bequests 
 are called captious, is, " because the testator, imposing the condi- 
 tion, endeavours to catch or entrap the legatee, by inducing him to 
 give such testator a legacy in case the legatee dies first, by which 
 means also the liberty of bequeathing, .which the legatee ought to 
 enjoy, is destroyed ; and, as in marriages, the same ought to be free, 
 not only from the fear of incurring loss, but also from the apprehen- 
 
 (g-) Swinb. pt. 4. sect. II, passim. (h) Swinb. pt. 4. sect. 11. art. 7.
 
 SECT. I.] upon Condition. 513 
 
 sion of not obtaining gain, so in testaments the same ought to be 
 made with all freedom, not only divested from the fear of incurring 
 loss, but also without any prospect of gain or reward." With due 
 deference to those reasons, it seems that the law of England allows 
 every person to dispose of his property as he chooses, provided his 
 will be not contrary to legal policy ; and fraud is never presumed 
 without proof. No solid objection, therefore, arises to qualify this 
 liberty, in instances where two persons are desirous to create by their 
 testaments a contingent benefit, in favour of the one, who may hap- 
 pen to survive the other, where no deceit has been practised by either 
 party. It seems, however, settled, that if two persons enter into a 
 fair and definite agreement to leave each other a sum of money, or 
 to settle by their wills the property of each for the benefit of the 
 survivor, a court of Equity will enforce a performance of such agree- 
 ment, (i) And with respect to the second class of captious bequests, 
 it should seem that Ji. '6 legacy would vest immediately upon B. 
 signifying his assent ; and nothing is.more frequent in practice, than 
 dispositions in trust for A. for life, with a limitation after A?s death 
 to such persons as he shall appoint ; the validity of which limitation 
 has never been questioned. 
 4. Of subsequent conditions. 
 
 A subsequent condition is, where any estate or interest is so given 
 as to vest immediately in the legatee, subject only to be devested by 
 some act or event at an after period. (A;) Technical words are not 
 required to create such a condition ; it will be sufficient, if the tes- 
 tator appear, From the contents of his. will, to have intended an im- 
 mediate interest to pass to the object of his bounty. In addition to 
 the instance given in the beginning of this chapter of a subsequent 
 condition, the following examples are produced. 
 
 If a legacy be given to /?., to be paid at twenty-one, and if he die 
 under that age, then to B. ; the interest of./?, will vest immediately 
 upon the death of the testator, subject to be* devested upon JUs de- 
 mise under twenty-one.(Z) 
 
 So in the case of a bequest to Ji- generally, and if he die "before 
 C.) then to D. The legacy will vest iny2. immediately, Jiable to be 
 devested upon the happening of the contingency. 
 
 Also, if a legacy be given to .#., payable at twenty-one or mar- 
 riage, but if he marry under that age without the consent of execu- 
 tors, then to C., the legacy will vest immediately in A,, and the 
 condition is subsequent.(m) 
 
 It is to be remarked, that although by the Civil and Common laws 
 it is the general rule that precedent cpnditions must be literally per- 
 formed, still that rule is not so rigorous, at least in the Civil law, as 
 not to admit of exceptions, when the conditional terms are so far 
 complied with as to fulfil the intention of testators in imposing the 
 conditions.(n) Whereas, in conditions subsequent, since they are in 
 defeasance of interests already vested, courts of law and equity are 
 
 (i) Lord Walfiolev. Lord Orford, 3 Ves, 402. Hinckleyv. Simmons, 4 Ves! 160. 
 
 () See Ughtred's case, 7 Rep. 10 a. 
 
 (/) Mcholls v. Osborn, and Taylor v. Johnson, 2 P. Will. 420. and 504. And 
 see ante, Chap. X. sect. 5. p. 403. (m) Garret v. Pritty, 2 Vern. 293. 
 
 (n) Svvinb. pt. 4. sect. 7. art. 4. Voet ad Pand. lib. 28. tit. 7. s. 25. Cod. lib. 6. 
 tit, 46. Dig. lib. 32. tit 1. lex. 11. s, 11.
 
 514 Of Legacies [Cn. XIII . 
 
 strict in requiring the very event to happen, or the act to be done, 
 with all its particulars, which is to defeat the interest previously vest- 
 ed. As this has been shown in the tenth chapter,(o) we shall pro- 
 ceed to treat 
 
 SECT. II. Of the PERFORMANCE of Conditions. 
 
 1. Of performance, when the conditions arc precedent. 
 
 A. When the performance is not within the time mentioned in 
 the condition. 
 
 Where a condition is precedent, it ought regularly to be strictly 
 performed in the manner required, as before observed ; yet it seems, 
 that both by the Civil law and by our own, if the testator's intention 
 be satisfied by ah execution in substance, i. e. cy pres, the perform- 
 ance will be sufficient. ' The Civil law held, inconsistently indeed 
 with its admitted exceptions to the general rule of strict perform- 
 ance, and which are hereinafter noticed, that where IQGl. was given 
 to B. if he paid C. 201. within a certain period, and C. died before 
 the time ; payment to his executors upon the day would be insuffi- 
 cient, (p) It seems, however, that the Common law would not re- 
 quire such a literal performance of the condition, but permit the 
 execution of it cy-pres ; viz. by allowing payment of the 50J. to C.'s 
 executors to be a good performance ;(</} and it is presumed that a 
 court of equity would hold the same doctrine. (r) 
 
 Upon a similar principle with that of cy pres performance, the 
 Civil law has admitted of a very extensive limitation to its general 
 rule of strict performance ; viz. in all cases where it is apparent 
 that testators paid more regard to the end or fulfilmen{ of the condi- 
 tion than to the means prescribed for the execution. (*) So that, 
 if A. bequeathed a legacy to I?., in case he erected a monument 
 for *#. within three days after .fl.'s death ; although B. should not 
 literally comply with the condition, yet he would be entitled to the 
 legacy upon building the monument within a reasonable time, since 
 the erection would-be considered as the motive and essence of the 
 bequest, and the time appointed for the building but a mean to ex- 
 pedite 'the business.() And it is presumed, that courts of equity 
 would act upon the same principle in similar cases. 
 
 Thus- in Simpson v. Pickers, (IL)' Mr. Simpson bequeathed to his 
 brother Michael 100QZ., to be paid within six calendar months after 
 his (the testator's) decease, upon his then executing to the execu- 
 trix a release of all claims. and demands ; and if he refused or de- 
 clined to do so, the testator revoked the bequest, appointing his 
 sister Elizabeth sole executrix. It seems that Michael did not give 
 the release within the time prescribed; nevertheless Sir W. Grant 
 declared him to be entitled to the legacy, upon his releasing all 
 demands. 
 
 So in Taylor v. Popham,(x) Mr. Taylor bequeathed to his son 
 Paris two annuities of 100/. and 200Z. There being subsisting ac- 
 counts between them, the testator gave to Paris GOO/, a year, upon 
 
 (o) 'Ante, p. 414. and see Jones v. Suffolk, 1 Bro. C. C. 529. Jones v. Bromley, 
 6 Mad. 137. (fi) Swinb. pt. 4 sect, 7. (?) Co. Litt. 205, b. (r) 2 P. Will. 613. 
 
 (s) Swinb. pt. 4, sect. 7. art. 4. (0 Swinb. pt. 4. sect. 6. art. 10. 
 
 iu) 14 Ves. 341. 348. 
 
 (x) 1 Bro. C. C. 168. and see Franco v. Alvares, 3 Atk. 342. in which the Court 
 held that the bill filed within the time was a sufficient performance.
 
 SECT. II.] upon Condition. 515 
 
 condition that he within three months executed a release of all de- 
 mands on his estates, stating his assurance that there was nothing 
 due to him on those accounts. A release was tendered to Paris, 
 which improperly included the two annuities, and he refused to ex- 
 ecute it. The persons beneficially interested under the will insisted 
 that, by such refusal, Paris had broken the condition upon which he 
 was to take the annuity of 600Z. But he contended that he was not 
 obliged to execute a release, until the . accounts were taken and 
 settled, and the balance ascertained. It appears, however, that the 
 three months elapsed, and no release was given. Lord Thurlow 
 determined, that the tendered release being improper, Paris was not 
 obliged to execute it. He was also of opinion, that Paris was not 
 entitled to have the accounts taken, since it appeared to have been 
 the clear intention of the testator to prevent that proceeding, or to 
 give any election to Paris. (y) And notwithstanding the expiration 
 of three months mentioned in the condition, his Lordship gave 
 liberty to Paris to execute a release, which he having refused to do 
 it was declared that he was not entitled to the 600Z. a year. 
 
 Such determinations as the last upon precedent conditions do not 
 appear to be founded upon relief against forfeiture, as is generally 
 supposed, but upon the principle of their having been substantially 
 performed within -the meaning of the- testator's imposing them. 
 When the condition is precedent, there is nothing to forfeit, since no 
 interest can vest previously to the literal or substantial performance 
 of the condition. The question in all those cases appears to be, 
 have the conditions been duly performed 9 In resolving such ques- 
 tions, it is presumed that the following distinction is material to be 
 regarded. When there is no disposition upon non-compliance with 
 the terms of the condition, either in time or collateral circumstances, 
 a liberal construction is to be put upon the performance, under au- 
 thority of the testator's intention, inferred from the absence of any 
 disposition over, that he meant the legatee to receive the legacy, 
 upon the condition being performed cy pres, or in substance, as in 
 the preceding cases. But when there is a limitation over of the le- 
 gacy on non-compliance with its specific terms, the construction is 
 less liberal, a strict and literal performance being required ; as it is 
 presumed, from the disposition over of the legacy to another person, 
 that the testator meant, if the terms which he imposed were not lite- 
 rally fulfilled, the second object of his bounty should succeed to the 
 bequest by way of conditional limitation. That this is the true prin- 
 ciple applicable to these subjects will appe.ar, if we. proceed to con- 
 sider the cases establishing the proposition. 
 
 That the times appointed for performing conditions may be so 
 material to be observed, as for ever to prevent the title of the lega- 
 tees, upon their permitting the periods to elapse without a perform- 
 . ance. In illustration of this- 
 Suppose a condition, upon -which a bequest is made, depends 
 upon the legatee (then abroad) returning to England within three 
 years, and personally applying for his legacy. His arrival in this 
 country within that time is essential to his title ; and if he orhit to 
 
 (y) But Lord Northington held in Vernonv. Bethell, that the filing of such a 
 bill for the purpose of election was a forfeiture, 2 Eden, 110. 114.
 
 516 Of Legacies [Cn. XIII. 
 
 do so, then, although he may shortly afterwards return, and for the 
 first time receive notice of the bequest, arid upon that information 
 make immediate application for the legacy, the defect in the literal 
 performance of the condition cannot be remedied ; and for the fol- 
 lowing reasons. The time allowed'for performance is not, as in the 
 instances before given, a mere secondary consideration, but it seems 
 to have been in the particular contemplation of the testator at the 
 date of his will, and intended -by him to be punctually observed. 
 Being uncertain whether the legatee was living, or should be so at 
 his death, and wishing to benefit him if he happpned to be then in 
 existence; the testator, for the convenience of his executor, might 
 have required the personal appearance of the legatee within the 
 above period, -which he considered a sufficient allowance for that 
 purpose. A court of equity, therefore^ cannot upon any rational 
 principle enlarge the period for claim, which the testator himself 
 thought proper to determine. 
 
 Accordingly, in the case of Burgess v. Robinson,(z) the testator 
 bequeathed 200?. charged upon his real estate, to each of his three 
 nephews, to be paid to them as soon as they arrived in England, or 
 claimed the same, provided the claim was made within the first three 
 years next after his decease. And the testator directed, that if only 
 two of his nephews so arrived or made 'their claims within the above 
 period,, each of them was to be paid 250Z. ; but if only one arrived 
 and claimed he was to receive 400L and the residue was to be con- 
 sidered part of his (the testator's) residuary estate ; so also was to be 
 considered the sum of 500Z. (part of the three legacies,) if neither 
 nephew arrived in England nor made claim within the time before 
 mentioned. The testator then disposed of his residuary property. 
 None of the nephews literally complied with the condition. And it 
 appeared that one of them came to England at the end of four years, 
 subsequently to the testator's death ; -.after which, being informed for 
 the first time of the will, he claimed the benefit intended for him by 
 the testator. But Sir W. Grant M. R. determined against his title; 
 observing, that the testator having imposed on the legatee a condi- 
 tion, with which he had not complied, although the non-compliance 
 was the effect of the latter's ignorance of the provision, yet the con- 
 sequence must be that he was not entitled to the legacy. (a) 
 
 In a preceding case, Lord Eldon acted upon the principle before 
 stated, and in conformity with the last determination, holding that 
 the legatee's arrival in England, and personally claiming the legacy 
 within the time and in manner prescribed by the condition, could not 
 be dispensed with. 
 
 The case alluded to is Tulk v. Houlditch,(b) in which the testa- 
 tor gave his .son John, at Malaga, in Spain, a specific legacy of 
 2000Z. stock, stating, that as he Jiad not heard from John for a con- 
 siderable time, and the probability was that he was then dead, he 
 therefore declared the legacy to be 'given upon condition that John 
 should not be entitled to it unless he returned to England and per- 
 sonally claimed it from his executors or administrators, or in the 
 
 (z) 3 Meriv. 7. 1 Mad. 172. 
 
 (a) Not so by the Civil Law. Swinb. pt. 4. sect, 14. art. 15. 
 
 () 1 Ves. &Bea.248. 259.
 
 SECT. II.] . upon Condition. 517 
 
 porch of the parish church at Waltham, in the presence of two wit- 
 nesses. The testator then directed, that if Jb^ndid not return and 
 make such claim within seven years after his decease, he should be 
 presumed to be dead, and the legacy considered to be lapsed, and 
 fall into the residue. The executors were ordered to continue the 
 stock in the bank for the above period after the testator's death, 
 until sufficient proof was produced of the demise of John, or until it 
 should be claimed by him, within the time, in manner before re- 
 quired. And the intermediate dividends were to accumulate, which, 
 with the capital, were to be paid to John, in case he 'claimed the. 
 legacy in the manner and within the period before' stated, or the 
 whole was to belong to the residuary legatee. John was living at 
 the date of the will, and did not return to England, but died at 
 Malaga within seven years from .the death of the testator. He was 
 regularly informed of the bequest, and intended to comply with its 
 terms, but was prevented by the illness which occasioned his death. 
 His executor claimed the legacy, contending that it was' meant for 
 John if he happened to be living, a fact which being clearly ascer- 
 tained in the affirmative, although not in the manner prescribed by 
 the testator, the substantial part of the condition was performed, 
 which entitled the personal representative of John to the legacy. 
 In support of the argument, the civil law was referred to; but Lord 
 Eldon determined against the claim, and said. " I think this legacy 
 is not due under the circumstances. The cases cited from the Civil 
 'law are distinguished in this respect. In. those cases where the 
 legacy was considered due, the means by which the party appeared 
 to be living were not thought to be essential, if the fact were other- 
 wise established it was sufficient; but there is in this will language 
 plainly showing that the testator did not mean the legacy to be 
 taken, unless the fact that the party was living was pointed out by 
 the means by which the testator required that demonstration. The 
 consequence is, that the bill must be dismissed without costs." 
 
 The two cases of Simpson v. Fickers and Taylor v. Popham, be- 
 fore mentioned, (c) are examples of strictly precedent conditions, 
 and in which the Court of Chancery considered the periods for ex- 
 ecuting releases as merely ancillary to the accomplishing of those 
 objects, and the procurement of those instruments the end and sub- 
 stance of the conditions. The two other cases last stated were de- 
 termined upon particular circumstances connected with the times of 
 performance, and which could not be m the least departed from, 
 consistently with the obvious intention of the testators ; yet the le- 
 gacies were limited over upon non-compliance with the particulars 
 enumerated in the conditions, circumstances which, it is presumed, 
 would of themselves, in ordinary cases, have procured similar de- 
 crees in favour of the second class of legatees. .However, the de- 
 cision of Sir W. Grant in Simpson v. Fickers, upon the will of Mrs. 
 Simpson, establishes the proposition, that in cases where there is a 
 limitation over of the legacy or devise, upon the legatee or devisee 
 not performing a condition within the time prescribed for that pur- 
 pose, if the terms be not literally complied with, the condition will 
 
 (c) Ante i p. 514. 
 VOL. i. 3 U
 
 518 Of Legacies [Cn. XIII. 
 
 be held not to have been performed within the intent and meaning 
 of the testator. Mrs Simpson devised to her brother Michael (who 
 was her heir) all her real estates, upon the express condition that 
 he, within six calendar months next after her death did, at his own 
 expense, make and execute, or deliver, or tender to her executor a 
 good release for 100GJ. bequeathed to him by her brother John, and 
 of all other demands upon Johns or her estate on account of her 
 ex-ecutorship under the will of John. But if Michael refused or 
 neglected to comply with the condition, she declared that at the end 
 of the six calendar months, the devise to him should become void; 
 and from that- period she devised her real property to her sister 
 Sarah, whom she appointed executrix. Michael contested the va- 
 lidity of the will, a circumstance which he "brought forward in ex- 
 cuse for his omission to execute a .release within the six calendar 
 months next after the death of the -testatrix. But Sarah (the de- 
 visee over) contended, that as the .estates were only devised to Mi- 
 chael in the event of his giving the release within the abovg period, 
 and upon his neglect to do so, then to her (Sarah) ; she became 
 entitled to those estates upon his non-performance of the condition, 
 by the express limitation of the testatrix. And so Sir W. Grant 
 determined, and said that the devise being a conditional limitation, 
 and not a strict condition, and the event having literally happened 
 upon which that limitation depended, Sarah was entitled to' the 
 estates. And his Honour declared, that Michael, not having com- 
 plied with the condition, of giving a release, was not entitled to the- 
 benefit of the devise -made upon that conditioned) 
 
 B. rFrom what period the time for performance is to be computed. 
 
 In calculating the time by months, when that word is mentioned 
 generally in the condition, the computation is to be made by calen- 
 dar not by lunar months.(e)' But from the carelessness of legatees, 
 it may happen that they may neglect to fulfil the terms of the con- 
 dition, until it become a question, whether they have performed that 
 obligation in due time. The point has arrived at that nicety as to 
 require a decision whether the period for- computing the space al- 
 lowed to perform, the condition commenced from the day of the tes- 
 tator's death, or that day was to be excluded. The rule is in this, 
 as in other cases, that the day of the. death is inclusive or exclusive, 
 as will best answer the intention of the testator. (/) An example 
 where that day will be considered exclusive may be thus given : 
 
 Suppose a bequest to A. if within six calendar months after the 
 death of her brother,, she give the security required by the will, and 
 the testator to die on the 12th of January 1805, and the security to 
 be. given on the following 12th of July. The 'condition will have 
 been performed, for the computation is to be made upon and from 
 the day next after the testator's death. Such was the case of Lester 
 v. Garland,(g] decided by Sir W. Grant, M. R. ; and upon this 
 reasoning. The day is a sort of indivisible point, so. that any act 
 done in the compass of it is no more referrible to any one, than to 
 
 (rf) 14Ves. 341. and see Lor&Eeaulieu v. Lord Cardigan, Ambl. 533. Report- 
 ed 1 Eden, 349, and commented upon by Sir W. Grant, in the last case p. 347. 
 (0 3 Atk. 346. (/; L aw O f Husband and Wife, " vol. 1. p. 99. 
 
 () 15 Ves. 248.
 
 SECT. II.] u p on Condition. 519 
 
 any other portion of it ; but the act and the day are co-extensive, 
 and therefore the act cannot properly be said to be passed until the 
 day is passed. Such is the technical rule. That rule then forbid- 
 ding, in the present case, the hour of the testator's death to be con- 
 sidered as the time of it, since that would be making a fraction of a 
 day, it follows that the day of the death must be the time of it, and 
 that time must be past before the six months can begin to run, which 
 makes the commencement of the period the day following the death 
 of the testator. 
 
 When the legatee has the whole of his life to perform the 
 condition. 
 
 When no period is appointed by the testator for performance of a 
 condition, the legatee will, in general, have the whole of his life to 
 fulfil the terms of it. In this the Civil law and the rule in equity 
 coincide, so that if a legacy be given to Jl. if he pay 101. to the poor 
 of a particular place, A. will be allowed by the Civil law the whole 
 of his life to make the payment ;(/t) and an instance where a court of 
 equity made a similar decision occurred in the following case : 
 
 In Randal v. Payne,(i) Mr. Walsh, after giving legacies to Jane 
 and Martha Wood, declared, that if either of them married into the 
 families of Gosling or Rivington and had a son, he gave all his es- 
 tate to such son for life, &c. but if they should not marry, the estate 
 was to go the plaintiff for life, &c. The Woods married, but not 
 into the families before named, and the question was, whether, upon 
 such marriages, the plaintiff had not a right to the estate 1 ] Lord 
 Thurlow determined in the negafive, on the principle that nothing 
 could vest in the plaintiff until the contingency of the Woods not 
 marrying into the particular families became impossible, which could 
 not be decided during their lives, for while they lived, there was a 
 possibility of their performiVig the condition; consequently the claim 
 of the plaintiff was premature. (k) 
 
 In the last case it was obviously the intention of the testator, that 
 if either daughter married into the families of Gosling or Rivington 
 arid had a son, that son was to have all his estates ; a circumstance 
 which showed his intention, that those estates were not to go over, 
 while the happening .of the above event was possible, and which 
 therefore necessarily continued during the lives of each daughter ; 
 so that although the daughters might marry into other families than 
 those prescribed, as was the' case, yet as their husbands might die 
 and one of the widows marry into one of the families pointed out 
 by the testator, and have a son, the first marriages were not allowed 
 to be a determination of the condition, so as to entitle the person 
 in remainder to the estates upon those events taking place. 
 
 But when it appears to have been the testator's intention, that 
 the condition should be restricted .to the first marriage of the lega- 
 tee, that intention will prevail, as in the following case : 
 
 Mr. Lowe, after devising all his real estates to trustees, bequeath- 
 ed a portion of 10,000/. to his daughter Charlotte, one half of it, to 
 be paid upon her marriage, and the remainder in one year after- 
 wards, on condition of her marrying with the consent of any two 
 
 (A) Swinb, pt. 4. sect. 14 art. 11. (i) 1 Bra C. C. 55, 
 
 () See Page v. Hayivard, 2 Salk. 570. 8vo. ed.
 
 520 Of Legacies [Cn. XIII. 
 
 of his executors, &c. But if she married without such consent, 
 one of his three kinsmen, William, Thomas, or John Drury, he 
 gave to that one kinsman particular estates upon his taking the 
 name of "Lowe," and if that circumstance did not take place with 
 Charlotte, he directed it to be offered to his daughter Jinn in every 
 particular ; and if neither daughter married as aforesaid, he gave 
 the estates to his kinsman // illiam Drury and his heirs male for 
 ever, upon his and their taking the name of " Lowe." Charlotte 
 married, with the consent of the testator, a person not one of the 
 three kinsmen named in the will, and -she received a marriage por- 
 tion, and then the testator made a codicil and revoked all the de- 
 vises and bequests in his will, in favour of Charlotte, and all the 
 claim and right which her husband might have to any of the testa- 
 tor's real or personal estates, in consequence of the marriage. An 
 act which showed the testator intended, that the condition of either 
 of his daughters, marrying one of his three kinsmen, was to be con- 
 fined to their first marriages ; for in lieu of such claim and right, 
 the testator gave' to each child of the husband by his daughter (ex- 
 cept an eldest or only son) a pecuniary legacy. And by the same 
 codicil the testator declared, that if his daughter Ann married any 
 of the three persons named in his will, then, on condition that such 
 person and his heirs should take and use the name of Lowe only, 
 such person should be entitled to-- all his real and personal estates 
 absolutely. But if his daughter Ann should not marry any of those 
 persons, or marrying one of them he refused to take and use the 
 name of Lowe, the testator revoked all the devises and bequests he 
 had made to Ann, and gave to her 10,000/. Ann, after surviving 
 the testator, married, but not one. of the three kinsmen of the testa- 
 . tor, and on that occasion she. was paid the 10,000/. ; and although 
 it was urged that her husband might die and she afterwards marry 
 one of those three persons, yet the Court of King's Bench was of 
 opinion, that the remainder over to the . plaintiff Drury (who had 
 taken the name of Lowe") irrevocably took place. (/) 
 
 D. Right of executors to perform the condition. 
 
 Where the condition gives an .option to the legatee to perform 
 one of two or more things, within a particular period, previously 
 to the vesting of the bequest, if the legatee die before the expira- 
 tion of the time without having elected, the right of election may 
 be exercised by his executors. 
 
 Accordingly in Eastwood v. Vinke,(m] the testator upon his 
 marriage gave a bond to his wife's trustee, with a condition, that if 
 he, within four months, settled and assured freehold lands of the 
 yearly value of 100Z. upon his wife for life, or if his heirs, executors, 
 or administrators should, within the same period after his death, 
 pay to her 2000Z. the bond was to be void. The testator died 
 within the four months without making such settlement and the 
 widow claimed the- 2000/. but it was contended against her de- 
 mand, that as the testator died within the period allowed for his 
 election, that right devolved upon his executors. And the Master 
 of the Rolls was of that opinion, ordering the executors to pay the 
 incoming profits of the 100Z. per annum to the widow from the 
 
 (0 Lowe v. Sir William Manners, 5 Barn. & Aid. 917. (m) 2 P. Will. 613. 617.
 
 SECT. II.] upon Condition. 521 
 
 death of her husband, and to settle upon her that annual sum, and 
 he declared them not to be bound to pay her the 2QOOZ. 
 
 Another instance, where executors will be entitled to perform 
 the condition omitted to be executed by their testator, the legatee, 
 may occur under the following circumstances : 
 
 Suppose A. bequeathed to B. IOC/, upon condition that he and 
 his executors dispose of certain goods. Now, as. B. can have no 
 executor while he lives, the latter member of the condition was im- 
 possible. The condition, therefore, must be considered in the dis- 
 junctive, so as to enable B. during life, or his executors afterwards, 
 to perform the condition. (n) 
 
 E. Where legacies are given to executors or trustees. 
 
 When bequests are made to individuals, in the character of trus- 
 tees or executors, and not as marks of personal regard only, the 
 legacies are held to be given upon an implied condition, viz. that 
 the persons named clothe themselves with the character in respect 
 of which the benefits were intended for them. Thus a trustee must 
 except the trusts, when called upon to act in their execution :(o) 
 and no rule is so clear, as that if a legacy be given to a man as 
 executor, whether it be expressed for care and pains or not, he must, 
 for the purpose of entitling himself -to the bequest, invest himself 
 with the character of executor.(/>) '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. 
 </0 4 Ves. 216. (y) Ibid. 212. (r) 1 P. Will. 333.
 
 522 Of Legacies [On. XIII. 
 
 The conduct of an executor, after proving the will, may be of such 
 a kind as to demonstrate that, instead of a bona fide intention to 
 execute the trusts, he procured probate as a mean of enabling him 
 to violate, in the grossest manner, the confidence reposed in him by 
 the testator. In such a case, the mere act of proving the will cannot 
 entitle him to the legacy meant for him. 
 
 In Harford v. Browning,(s) Mr. JMorris (one of four executors) 
 had a legacy of 150GJ., and an annuity of 100/. given to him by the 
 testator, upon proving the will, and taking on himself the execution 
 of it. Morris concurred in the probate, and shortly afterwards 
 eloped with and married abroad Frances, the infant daughter of the 
 testator, who was beneficially interested under the will. With the 
 exception of probate, Morris never acted as executor, and, in conse- 
 quence of his misconduct, he was restrained by the Court of Chan- 
 cery from interfering in the trusts of the will. And Lord Thurlow 
 determined, that Morris's concurrence in the probate under those 
 circumstances, did not entitle him either to the legacy or the annuity. 
 
 Bequests to individuals, who are executors, are considered primd 
 facie to be given to them in that character ; a presumption to be re- 
 pelled by the nature of the legacies, or other circumstances arising 
 in the will. And when it is once settled, that the bequests are made 
 to them as executors ; if they renounce the trusts, refuse to act or 
 are guilty of culpable neglect in not undertaking the executor- 
 ship, (t) and die before taking upon themselves the trusts, the condi- 
 tion upon which the legacies are given being not performed, they 
 cannot be claimed. 
 
 In Read v. Devaynes,(u) legacies were given to persons by the 
 description of " my very good friends ;" who, in another part of the 
 will were desired "to act as executors." A Mr. Smith, one of those 
 persons, said in his answer, that he had not proved the will nor act- 
 ed as executor, but he, notwithstanding, claimed the legacy. The 
 Master of the Rolls declared, that an executor so appointed could 
 not claim the legacy, without acting, or at least without having 
 proved the will. 
 
 So in Jlbbot v. Massie,(x) the bequest was of 50Z. to Mr. Massie, 
 and W.. G. "as executors; W. G. refused to act, but claimed the 
 legacy. And Lord Rosslyn said, " as to the 50J. it is impossible it 
 can be allowed, because it is given to him as executor, and he did 
 not prove the will." 
 
 Also in Stackpoole v. Howell,(y) the testator devised his real and 
 personal estates to the plaintiff and the defendaAts Howell and Mab- 
 berley, upon various trusts, and appointed them executors. This 
 testator made two codicils, by which he gave to those three persons 
 legacies, not expressly as trustees or executors, but by their names 
 and descriptions ; and the legacies by the first codicil were classed 
 together, and of equal amounts, as were those -in the second. The 
 plaintiff renounced probate, and he nevertheless claimed the lega- 
 cies, but without success. Sir W, Grant said, the question was, 
 whether it was not necessary to find circumstances to show, that the 
 
 () 1 Cox, 302. (r) 4 Ves. 216. (K) 5 Bro. C, C. 95. 
 
 (x) 3 Ves, 148. (y) IS Ves. 417.
 
 SECT. II.] upon Condition 523 
 
 legacy was intended for the executor in a distinct character ? other- 
 wise it was the jtrima fade presumption, that it was given to him as 
 executor. His Honour remarked, that there was something in the 
 circumstances, that the testator had put those legacies together, and 
 that, in both the codicils, the legacies to the executors were pre- 
 cisely of the same amount. It seemed to him, as if the testator con- 
 sidered the legatees in the character of executors, and he therefore 
 thought the plaintiff was not entitled. 
 
 The recent case of Dix V. Reid,(z) is an instance, wherein the le- 
 gacy was considered not to be given to trie legatee in his character 
 of executor ; and accordingly, he was decreed entitled to the lega- 
 cy, notwithstanding his renunciation of probate. In that, case, a 
 testator bequeathed thus : " I give to William Reid and John Bang- 
 ley 5QL each, whom I nominate and appoint executors in trust to 
 this my will : the said, bequests to be upon condition of their taking 
 upon them the trusts hereinafter mentioned." In a subsequent part 
 of the will, the testator added, " I give unto my cousin Thomas King 
 the sum of oCl. whom I appoint as joint executor in trust in this my 
 will." Reid and Bawglcy proved the will : but King declined prov- 
 ing it, and did not interfere in the trusts. It was insisted he was 
 not entitled to the legacy of 5(JZ. The Master reported the legacy 
 to be due, but an exception was taken to the report. And Sir John 
 Leach, V. C. over-ruled the exception, observing, that he considered 
 the gift rather intended in respect of the legatee's relationship, than 
 of his office. The circumstance that the two other executors had 
 the same legacies could not be brought in aid of the exception, be- 
 cause those legacies were expressly annexed to the office of trustee?. 
 His Honour, however, considered the case as very doubtful. Primd 
 facie legacies to executors were considered as annexed to the office, 
 and they were to show circumstances to repel the presumption. 
 
 With respect to precedent conditions in restraint of marriage, 
 their performance in connexion with, subsequent conditions of the 
 same kind will be separately treated of under the third subdivision 
 of this section. 
 
 We shall next consider, 
 
 2. The performance of conditions which are subsequent. 
 
 Those conditions are construed with great strictness, as they are 
 intended to divest estates already vested. It is, therefore, required, 
 as previously observed, for the very event to happen, or the act to 
 be done with all its details, in order to deprive the legatee of his le- 
 gacy. (a) 
 
 A. It is a consequence from this rule of construction, that if the 
 subsequent condition tannot be performed from being impossible or 
 illegal, the condition is void, and the legacy single and absolute.(ft) 
 
 Accordingly, in the case of Sir James Lowther v. Lord Charles 
 Cavendish,(c] the testator, after settling his real estates in Cumber- 
 land on the plaintiff in tail, expressed a desire that his burgage tenures 
 in Cockermouth should be limited in the like manner. He there- 
 fore devised them to Sir William Lowther in fee. The testator then 
 signified his opinion, that it would be fight for the plaintiff to have 
 
 (z) 1 Sim. & Stu. 237. 00 See ante, p. 414. et. seq. 
 
 ($) Co. Litt. 206. Plowd. Com. 132. (c) Ambl. 356. 1 Eden, 99. S. C.
 
 524 Of Legacies [CH. XIII. 
 
 all the estates of Sir William in Cumberland, and for the latter to 
 have all the plaintiff's estates in Yorkshire. In order to accomplish 
 that purpose, the testator gave 30,000?. stock to trustees, in trust for 
 the plaintiff to receive the dividends, until Sir William conveyed to 
 him in fee all the Cumberland estates, and the plaintiff had made 
 over the Yorkshire estates to Sir William; which, if either of them 
 refused or neglected to do within eight months after the plaintiff 
 came of age, such person should not have any part of the stock ; but 
 if the exchange were completed by both of them, that fund was to 
 be divided between them ; and he appointed Sir William sole ex- 
 ecutor and residuary legatee. Sir William died before the exchange 
 could be made, in consequence of the infancy of the plaintiff; and 
 the defendant, the executor and residuary legatee of Sir William, 
 claimed the 30,OOOZ. upon the ground, that in the event which had 
 happened, the fund was undisposed of, and formed part of the resi- 
 due bequeathed to Sir William, On the -other hand, the plaintiff 
 claimed the stock, upon the principle, that he took a vested interest 
 in it at the testator's death, only to. be devested upon his neglect or 
 refusal to concur in the exchange, neither of which circumstances 
 could be imputed to him. And, since the exchange had become 
 impossible by the act of God, the bequest to him, which was origi- 
 nally qualified, became single and absolute. And of that opinion 
 was Lord Northington, C. and directed accordingly. (d) 
 
 B. There is a species of illegal conditions termed repugnant. 
 They are so called from their inconsistency with the interest of lega- 
 tees in the subjects of bequest, i. e. from the imposition of restraints 
 incompatible with the enjoyment of the legacies in so large and am- 
 ple a manner as the law allows, when dispositions are so made. 
 This may happen, where the condition restrains a legatee from spend- 
 ing or disposing of his legacy., when his interest in it is absolute. 
 Such condition -being void, the observance of it is unnecessary. (e) 
 The following is an example of this class of conditions : 
 
 In Bradley v. ,Peixoto,(f) the testator bequeathed to his son 
 Henry Bradley the -dividends of 1620Z. bank stock for his support 
 during life; and at his 'death the principal and interest where given 
 to his " heirs, executors, administrators, and assigns." But if he at- 
 tempted to dispose of all or any part of the stock, such attempt should 
 exclude him from any benefit under the will, and be a forfeiture, and 
 the fund should go to the testator's other children. Henry claimed 
 the legacy discharged from the condition, upon the ground, that 
 the restriction was repugnant to the absolute interest which he took 
 in the fund. And Lord Mvanley, M. R. was of that opinion ; ob- 
 serving, " it was a rule long established, that,* where there is a gift 
 with a condition inconsistent with and repugnant to such gift, the 
 condition is wholly void. 
 
 It is stated at the conclusion of the report of .the last case, that, 
 upon a similar disposition of stock by the same .will the Lord Chan- 
 
 (d) SeeKeates v. Burton, 14 Ves, 434. stated ante, p. 416. S. P. also Aislabie v. 
 Rice, 3 Mad. 256. stated infra. 
 
 (e) With respect to conditions of this description, see Co. Litt. 146. 206. 222. 
 223. Mildmay's case 6 Rep. 43. Hob. 170. Stiailard v. Baker, Cro. Eliz. 744. 
 Portington's case, 10 Rep. 38. Gulliver v. Ashby, 4 Burr. 1929. King v. Burchell, 
 AmbL 382, 1 Eden, 434. S. C. 8 Term. Rep. 61. (/) SVes. 324.
 
 SECT. II.] upon Condition. 525 
 
 cellar was of opinion that the interest. was absolute, and decreed ac- 
 cordingly. 
 
 A prohibition annexed to an absolute bequest, against the lega- 
 tee's spending the money, is equally repugnant to his interest in 
 it, as a general restraint against alienation. The condition, there- 
 fore, is void, and a forfeiture will not be incurred by non-compli- 
 ance with it. 
 
 So also^ if the absolute estate of the legatee be made defeasi- 
 ble, upon hrs not disposing of the fund during life, the condition 
 will be repugnant to the interest previously given and vested in 
 him. For where absolute property is once given to an individual, 
 it cannot be subjected during his life to a condition, that if he do 
 not use or dispose of it, his interest shall cease, and go over to 
 another person. 
 
 In Ross v. Ross,(g] the testator gave to his son James Ross 20001. 
 to be. paid, to him at the age of twenty-five, or at any time between 
 the ages of twenty-one and twenty-five, if his executors thought 
 proper ; the intermediate interest to be applied for James's support 
 and education. But if James should not receive or dispose by will 
 or otherwise, in his lifetime, of the money, it should return and be 
 paid to the heir in tail for the time being in possession of a par- 
 ticular estate. James, after surviving the testator and attaining the 
 age of twenty-five, died intestate, not having received the 2000Z. 
 And Sir Thomas Plumer, M. R. was of opinion, that the condition 
 or proviso was repugnant and void ; an opinion, which procured a 
 decree for the legacy in favour of the administrator of James, in 
 preference to the heir in tail, the legatee over. 
 
 It will have been, noticed in the perusal of the last cases, that 
 they prove, where the "conditions are subsequent, and either impos- 
 sible or illegal, although there be a limitation over of the legacies 
 upon non-compliance with the terms, still the interests or the 
 original legatees remain undisturbed and absolute ; the bequests 
 beinor considered the same as if no such conditions had been an- 
 
 O 
 
 nexed.(A) 
 
 It is presumed, upon the principle of the last cases, that if a lega- 
 cy were given to A. for life, with a proviso for its determination if 
 A. made any disposition of his life interest, the condition would be 
 repugnant and void. For to such an estate ihejus disponendi is in- 
 cident by law, and cannot be totally for bidden, (i) 
 
 The decision before considered being founded upon the incon- 
 sistency between the property in the subject bequeathed to the 
 legatee,- and the qualifications and restraints attempted to be an- 
 nexed to it, it follows, that a condition, restraining the disposal of 
 a legacy, will be good, when the gift and restraint are not repug- 
 nant. 
 
 Suppose, then, a bequest to A., either absolutely 6r for life, but if 
 he dispose of his interest to a particular person, the bequest to him 
 shall cease, or the property shall go to B. The condition is valid ; 
 for it does not prohibit A. from making any disposition of his interest, 
 
 (r) Uac. & Walk. 154. 
 
 (/>) 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. 5<?8. ed. by Belt, also 
 Knight v. Cameron, 14 Ves. 389.
 
 586 Of Legacies [Cn. XIII. 
 
 In Graydon v. Hicks,(x] Mr. Graydon bequeathed to his only 
 daughter Mary, 100QI. to be paid at twenty-one, or on the day of 
 marriage, which should first happen, provided she married with the 
 consent of his executors (three in number); but if she died before 
 the money became payable on the aforesaid conditions, he gave the 
 legacy to B. and C. Mary married under twenty-one, but all the 
 executors were then dead. B. and C. claimed the 10001. under the 
 limitation over to them upon the marriage of Mary under twenty- 
 one, without consent. But Lord Hardwicke decided against the 
 claim, upon the principle, that the condition being subsequent, viz. 
 to devest the legacy in the event of marriage without consent before 
 twenty-one , as the act of God had made the performance impos- 
 sible, the interest of Mary became absolute. 
 
 So in Mslabie v. Rice,(y) determined by the Court of Common 
 Pleas upon a case out of Chancery, Mr. Hatton devised his estates 
 and mansion house with various articles in and about the premises, 
 after the death of his wife, to Hannah Lilly for life, in case she 
 continued unmarried, remainder after her decease to such persons 
 as she should appoint by deed or w r ill, with remainder, in default of 
 appointment, to Mice and Mary Lilly absolutely in equal shares. 
 But if Hannah married during the life of his wife, with her consent 
 and approbation, or after her death with the consent and approba- 
 tion of James Turney and Thomas Lilly, or of the survivor, in either 
 case Hannah was to enjoy the property, " in the same manner as 
 she could have done if she had continued single." Hannah married, 
 but not until James Turney and Thomas Lilly, and the testator's 
 widow, were dead, whose consent therefore she was prevented from 
 obtaining; nevertheless the question was, whether her estate for 
 life did not determine by her marriage without that consent'? And 
 the Judges returned the following certificate; " We are of opinion 
 that the condition was subsequent; and that, as the compliance 
 with it was, by the deaths of the testator's widow and James Turney 
 and Thomas Lilly before the marriage of Hannah, become impos- 
 sible, by the act of God, her estate for life is become absolute ; 
 also, that she may now execute the power of appointment in the 
 manner and form directed by the will." 
 
 And where an executor sole or joint renounces the executorship 
 or refuses to act in the office to which the authority to assent is an- 
 nexed, and the legatee whose interest is to be devested, and to go 
 over upon marriage without consent of the renouncing or non-acting 
 executor, marries without obtaining it, the renunciation or refusal to 
 act of the executor will operate as a dispensation with the condition, 
 and absolve the legatee from attempting to perform it in toto, or in 
 part, as the case may happen. 
 
 In the case of Worthington v. Evan9,(z) Thomas Worthington, 
 the father, by his will made in November 1805, after giving 30001. 
 to be divided by his executors equally among all the children of his 
 three daughters, gave to his executors, David Evans and Edward 
 Heyward, their executors, administrators, and assigns, his household 
 
 (x) 2 Atk. 16. 18. 
 
 (y) 3 Mad. 256. and see Grant v. Dyer, 2 Dow. Parl. Ca. 73. S. P. 
 
 (z) iSim. &Stu. 165.
 
 SECT. II.] upon Condition. 537 
 
 goods and other personal estate therein mentioned, and also all the 
 residue of his personal estate after payment of his debts, upon trust, 
 for the use and benefit of his son (the plaintiff,) to be paid and trans- 
 ferred to him as soon as conveniently might be after his marriage, 
 with the interest and produce to accrue and arise in the mean time, 
 upon condition, nevertheless, that such marriage should be with the 
 consent of his, the testator's, trustees, or the survivor of them, first 
 had and obtained in writing under his or their hand or hands ; and 
 after directing his trustees to cause an inventory and appraisement 
 to be made, and authorizing them to permit the plaintiff to continue 
 in possession of a certain farm till his marriage, but if the plaintiff 
 should marry without the consent of the trustees, or the survivor of 
 them, first had and obtained in writing as before mentioned, or in 
 case he should, with or without their consent, marry J. P. or any of 
 the daughters of T. P. then that the plaintiff should not be entitled 
 to any part of the household goods, property or effects before be- 
 queathed for his benefit ; and he directed the trustees or the survivor 
 of them, to pay the sum arising from the appraisement, and all the 
 residue of his personal property among all the children of his three 
 daughters, in equal shares ; and appointed David Evans and Ed- 
 ward Heyward executors of his will. The testator died in 1806 ; 
 David Evans alone proved the will, and alone acted in the execution 
 of the trusts ; the other executor and trustee, Mr. Heyward, refused 
 to act in any manner in the trusts of the will. Soon after the testa- 
 tor's death the plaintiff formed an attachment to a lady, whom he 
 afterwards married, and who was not of the family prohibited by the 
 testator. This attachment was formed and a treaty of marriage en- 
 tered into with the approbation of Mr. Evans, the acting executor 
 and trustee. A short time before the marriage, the plaintiff applied 
 for the consent both of Evans and Heyward, and the solicitor of the 
 former prepared an instrument in the form of a deed poll, to be ex- 
 ecuted by both the executors, reciting the clause in the will and the 
 intended marriage, and expressing a formal consent to it. This 
 instrument was duly executed by Mr. Evans ; but Mr. Heyward, 
 though he expressed his perfect consent to the marriage, declined 
 executing the instrument, lest he should thereby be considered as 
 taking upon himself the trusts of the will. On the day preceding 
 the one which was fixed for the marriage, the plaintiff wrote the 
 following letter to Mr. Evans : " Dear sir, Fearful it should have 
 slipped your memory,! have taken the liberty of reminding you, that 
 it is still my intention to be married to morrow, when I expect to 
 see you here, and call on Mr. Heyward on your road, as he has pro- 
 mised me, at as early an hour as you may think proper." On the 
 same day, Mr. Evans wrote in reply, saying, among other things, 
 'I will, however, be as early to-morrow morning as I possibly can 
 at Mr. Heyward's, and bring with me the proper consent, done right, 
 to your house, which will be some time doing." "A". B. I should 
 have sent your servant home sooner, but I waited for Mr. Thomas 
 who was from home. But you know you have my consent to marry 
 your cousin, Sarah Worthington." Mr. Thomas was the solicitor 
 employed by Mr. Evans to prepare the instrument. Early in the 
 morning of the day on which these letters were written, Mr. Evans
 
 538 Of Legacies [On. XIIL 
 
 called on Mr. Heyward, and produced to him the instrument in 
 question, which Heyward read, but which he declined to sign, on 
 the ground that it might be considered as done in execution of the 
 trusts of the will, in which he refused to act. Mr. Evans then signed 
 the instrument himself, and proceeded to the house of the plaintiff, 
 where he found that the marriage had taken place in the morning, 
 some hours before his arrival, and before the time when he signed 
 the instrument. It was urged on the part of the plaintiff that the 
 consent given was sufficient, that the power of consent was entirely 
 annexed to the office. Sir J. Leach, V. C. said, "I am prepared to 
 hold, according to the intimation of Lord Eldon's opinion, in Clarke 
 v. Parker, that the authority to consent is here annexed to the office 
 of trustee ; and like other authorities annexed to that office, vested 
 in the single trustee who acted. The letter written by the acting 
 trustee the day before the marriage, must be considered as a suffi- 
 cient consent in writing. And if there had not been such a letter, 
 inasmuch as the formal consent in writing would have been executed 
 by him but for the accidental delay occasioned by the other trustee, 
 and not from any change of purpose, the Court would have con- 
 sidered his consent to have been substantially given, according to 
 the will ; because he had expressed his full approbation of the mar- 
 riage, and only did not sign it for a reason personal to himself." And 
 for these reasons his Honour decreed in favour of the plaintiff. 
 
 But where the authority to consent t* not annexed to the office, it 
 should seem that the renunciation of the office of executor or trustee 
 will not preclude the necessity of obtaining the consent of such re- 
 nouncing executor or trustee. This, it is presumed, may be collect- 
 ed from the case of Graydon v. Graydon,a) a branch of the case of 
 Graydon v. Hicks,(b) before in part stated. The case is ill reported, 
 and, at first sight, would seem to authorize the conclusion, that the 
 forfeiture of the daughter's legacy under her mother's will was oc- 
 casioned by her marriage without the consent of tke administrator 
 with the will annexed. 
 
 In that case, Mrs. Graydon bequeathed all her wearing apparel, 
 &c. to her daughter Mary ; provided, that if her daughter married 
 before the age of twenty-one, without the consent and approbation 
 of her executor, under his hand, (if living] she should not be enti- 
 tled to the legacy, but it should go over to other persons ; and ap- 
 pointed her sow sole executor. The son formally renounced the 
 executorship, and administration with the will annexed was granted 
 to a stranger. Mary married under twenty-one, without the con- 
 sent either of her brother or the administrator. And the question 
 was, whether by the marriage of Mary under those circumstances, 
 she had not incurred a forfeiture of the legacy c ? And Lord Hard- 
 wicke determined in the affirmative ; but his reasons are very shortly 
 and obscurely stated. 
 
 That Lord Hardwicke considered an administrator with the will 
 annexed, a person equally in the confidence of the testatrix with the 
 executor especially appointed by her, to controul the marriage of 
 her daughter, can scarcely be credited. (c) That she had no such 
 person in view at the date of her will, clearly appears from the terms 
 
 (a) 2 Atk. 16. 19. (A) Ante, p. 536. (c) See 2 Dow Part. Ca. 89,.
 
 SECT. II.] upon Condition. 539 
 
 of the bequest. The only consent required to the marriage was that 
 of the testatrix's executor (her son,) if living. While in existence, 
 he alone was to exercise the privilege in preference to every other 
 person. He was living ; a circumstance, therefore, necessarily ex- 
 cluding the administrator with the will annexed from any such pow- 
 er. Arid, if he had been dead, the cases before stated prove, that 
 the daughter was not under any obligation to solicit the administra- 
 tor's consent to her marriage. So that, whether the son was living 
 or dead at the time of his sister's marriage, the right of the adminis- 
 trator to be consulted on the subject of that transaction could not 
 exist. Hence, Lord Hardwicke's decision may with reason be at- 
 tributed to the daughter's marrying without the consent of her bro- 
 ther. And that she did so, may be inferred from his observation, 
 that " the power of assent was not annexed to the office of executor, 
 but was independent of the rest of his duty as executor." Whence 
 it follows, that renunciation of the office did not determine the son's 
 power of assenting to his sister's marriage ; a power, which could 
 not be enjoyed at the same time, both by him and the administrator. 
 For these reasons it is apprehended, that the forfeiture, declared by 
 Lord Hardwicke, was in consequence of the legatee's marriage, with- 
 out the consent of her brother, and not of the administrator with the 
 will annexed. 
 
 Having considered the persons, whose consent to the marriages 
 of legatees is necessary. The next consideration will be, 
 
 (A. 3.) What will be a sufficient consent. 
 
 The exercise of the discretionary power of assenting to the mar- 
 riages of legatees, is under the eye and controul of a court of equi- 
 ty. It will not suffer that power to be abused, but will examine 
 into the conduct and motives of the persons entrusted with that 
 discretion, in order to ascertain, whether a refusal to consent pro- 
 ceeded from vicious, corrupt, or unreasonable causes : a dangerous 
 assumption of power, it is true, but which the Court has neverthe- 
 less always exercised. (d) It is a consequence of this jurisdiction, 
 that, if an executor or trustee, whose assent is made a necessary 
 preliminary to the marriage of a legatee, refuse to execute his 
 power, the Court will direct one of its Masters to inquire into the 
 intended marriage, and determine upon its propriety ; with direc- 
 tions to receive proposals for a settlement upon the legatee, and 
 the issue of the marriage, in the event of the marriage being found 
 suitable, (e) 
 
 A Court of equity, in sitting in judgment upon the conduct of indi- 
 viduals entrusted with the power of assenting to, or dissenting from, 
 the marriages of legatees (on the due exercise of which, the rights 
 of those legatees are either to vest or be forfeited,) substitutes itself 
 in the place of the testator. It acts upon what it presumes to have 
 been his intention in imposing the condition, and with reference to 
 the persons who are actors in the performance. Hence arise the 
 rules and distinctions established by the cases upon this subject. 
 And 
 
 FIRST, although consent, to the marriage of a legatee, may not 
 be so given, as regularly to fall within what may be rationally con- 
 
 (rf) 10 Ves. 245. 19 Ves. 18. (e) Goldsmid v. Goldsmid, 19 Ves. 368. 372.
 
 540 Of Legacies [Cn. XIII. 
 
 sidered to have been the intention of the testator, yet if the legatee 
 act upon such assent, and marry in the persuasion that consent has 
 been properly obtained, the condtiion will be holden to have been 
 sufficiently performed : and for the following reasons. The irregu- 
 larity was not imputable to the legatee, but to the mistake of the 
 person, whose consent was to be obtained. The legatee intended 
 to act in obedience to the condition ; but was misled by the indi- 
 vidual entrusted with the power to assent. Under such circumstan- 
 ces, the Court considers that the condition being so performed, is 
 a fulfilment of the intention of the testator wiio imposed it. 
 
 Suppose then the condition to require marriage by the legatee 
 with the consent of B. The testator must be understood to mean 
 that B. should be consulted during the addresses \vhic h preceded 
 the marriage.(/) - Yet, if the legatee be .of age, and B. give a 
 general consent for the legatee's marrying any person whom the 
 latter shall choose, who, upon the presumed regularity of such 
 licence, marries without .the knowledge of B. ; the marriage 
 will be considered to have been solemnized within the true intent 
 and meaning of .the condition. 
 
 Thus in Mercer v. Hall,(g) a legacy was given in trust for the 
 plaintiff " upon her marriage with the previous consent in writing 
 of her mother, if living, but if then dead, with such consent of her 
 father ;" and if she married without such consent, during the life 
 of her father and mother, or either of them, the legacy was to be 
 settled by them or the survivor upon her and her children. The 
 plaintiff married after the decease of her parents, who previously to 
 their deaths signed a paper-writing, by which they gave " free 
 leave and consent to their daughter to marry whomsoever she 
 choosed ;" and empowered her to settle and dispose of the legacy 
 " according to her own inclination." The question was. whether 
 the daughter's marriage was sanctioned by such consent as the will 
 required ) And Lord .ihanley, M. R. said, he was clearly of 
 opinion in favour of. the daughter ; 1st, because consent was only 
 necessary during the lives of the father and mother, or the life of 
 the survivor; and 2dly, because the testatrix's intention was suffi- 
 ciently answered by the general consent, notwithstanding she 
 meant that there should be a consent to the particular marriage ; 
 for, if the material part of the condition were complied with, the 
 bequest was good. 
 
 Similar in principle to the last case w as that of Pollock v. Croft. (h) 
 There Mr. Fielding bequeathed the interest of his personal estate 
 to his mother for life. After her death, he gave the capital to trus- 
 tees, to pay the interest to his sister Mary so long as she continued 
 single ; and if she married with the consent of her mother in 
 writing, or subsequent to the mother's death, with the consent of Mr. 
 Croft, then the trustees were to convey to her his residuary estate. 
 But if she died without having been married with such consent as 
 aforesaid, or should marry without the consent before made requi- 
 site, he gave the property to his brother. Mary did not marry 
 during the life of her mother ; after whose death, and after attain- 
 ing the age of twenty-one, Mr. Croft verbally gave her a general 
 
 (/) 4Bro, C. C. 328. -(5-) Ibid. 327. (A) 1 Merir. 181,
 
 SECT. II.] upon Condition. 541 
 
 consent to marry whomsoever she pleased. Subsequently to this 
 general license, Mary married without the knowledge of Mr. Croft; 
 a marriage, which he afterwards approved of. And the same ques- 
 tion arose, as in the preceding case, viz. whether the marriage was 
 accompanied with the consent required by the will. And Sir W. 
 Grant decided in the affirmative. 
 
 SECOND. Absolute consent once given cannot be retracted upon 
 any consideration, which does not affect the propriety of having 
 granted such consent in the first instance. The reason seems to be, 
 that the parties are considered to have acted upon the license, and 
 it would be- doing violence to their feelings, as well as to the inten- 
 tion of the testator, to permit the consent to be countermanded for 
 any reason, which did not prove that the assent ought not to have 
 been Originally given. 
 
 If then executors, guardians, or trustees, approving of the connec- 
 tion, assent to it without qualification, and afterwards dissent be- 
 fore the marriage, because the intended husband will not accede to 
 all the terms of the settlement proposed by them, and the marriage 
 nevertheless takes place ; the condition requiring their consent will 
 be considered as well performed ; since the motive for retraction 
 had no reference to the suitableness of the connection, in respect of 
 which the consent was given, but to collateral circumstances which 
 might have been, but were not, made conditions upon which the 
 consent should depend. 
 
 Under this head, Lord Eldon(i) classed the case of Lord Strange 
 v. Smith.(k) The question was, whether the plaintiff was to have, 
 jure uxoris, an estate for life in real estate ; or whether, as the mar- 
 riage was without consent of the lady's mother, the rents were to be 
 in',trust for the separate use of the daughter as directed by the will 1 ? 
 The cause turned upon the point, whether, under the circumstances 
 the daughter's marriage was to be considered as solemnized with 
 the previous, consent of her mother. It appeared in evidence, as 
 detailed in Lord Hardwicke's note of the case,(J) that the mother had 
 expressly given her consent ; the daughter's affections were entan- 
 gled, and afterwards the propositions about a settlement, not having 
 been made the subject of any qualification as to the consent given, 
 a new proposition was adopted ; and at last the mother positively 
 insisted upon a new term. The husband's father was averse to it, 
 but at length he consented, thinking it for the happiness of the par- 
 ties ; but then the mother of the wife (who seems to have been of a 
 very perverse disposition, the moment the concession was made, 
 said her daughter never should marry into th'at family. Under 
 those circumstances, Lord Hardwicke was of opinion (approved of 
 by Lord Eldon,) that, a consent having been given without any con- 
 dition, every thing reasonable agreed to, no fair objection, either 
 of a moral or a pecuniary nature, it was a. fraud upon the affections 
 of the daughter to retract the consent, merely from caprice and per- 
 verseness.(m) 
 
 Merry v. Ryves{ri) is a case, in which the decision is an addi- 
 tional authority upon the present subject. 
 
 (i) 10 Ves. 242. (fr) Ambl. 263. (0 So stated by Lord Eldon, 10 Ves. 242. 
 (m) See D'Aguilar v. Drinfcwater, 2 Ves & Bea. 234. () 1 Eden, 1. 
 
 VOL. i. 3 Z
 
 542 Of Legacies [Cn. XIII. 
 
 There Miss Ryves was entitled under her father's will to a por- 
 tion of 1000Z. charged upon lands, provided she married with the 
 consent of her mother and brother and another person, &c. But if 
 she married without such consent, the. money was not to be raised. 
 The plaintiff Jnerry (whose father was a man of property) paid his 
 addresses to the young lady, and he, by letter, requested her bro- 
 ther's consent to the union, stating his belief, that he had won the 
 lady's affections. The brother in answer informed Mr. Merry, " that 
 he should not oppose it ; that Mr. Merry's character and circum- 
 stances were extraordinarily good, and that he should leave the man- 
 agement of the settlement to a Mr. Brucer, by whose agreement on 
 the settlement he would abide." Articles were accordingly pre- 
 pared, and executed ; and the mother and the other person, whose 
 consents were required, assented ; but before the marriage took 
 place, the brother and Mr. Merry quarrelled, upon wjiich the former 
 retracted his consent, and forbad the marriage, but without effect. 
 The question was, whether it was competent for the brother to with- 
 draw his consent from such a motive 9 and Lord Northington deter- 
 mined in the negative. 
 
 But that consent to a marriage is incapable of being withdrawn 
 for any reason, is a proposition which cannot be maintained ; since 
 it might be the duty of the persons, who gave the consent, to coun- 
 termand it. As a general principle, therefore, it would be very dan- 
 gerous to hold ; if, at a particular time, a person in loco parentis, as 
 guardian, upon a conscientious sense of duty, think himself required 
 to consent, which he accordingly gives, but previously to the mar- 
 riage, is properly informed of circumstances, which ought to have 
 operated at first, to make him -withhold his consent, that such per- 
 son shall not afterwards alter his mind.(o) 
 
 THIRD. Consent to marriage may be given conditionally, and the 
 vesting or forfeiture of the legacy will depend upon the perform- 
 ance, or non-performance of the condition. 
 
 Thus in Dashwood v. Lord Bulkeley,(p) the testatrix directed her 
 trustees to apply the interest' of a sum of money, for the separate use 
 of her grand-daughter Elizabeth Callendar for life, when she attain- 
 ed twenty-one or married; but with a proviso for reduction of the 
 legacy to 4001. a year for life, if she married during or after minority, 
 without the consent in writing of her executors and trustees, Lord 
 Bulkeky, Sir M. W. Ridley, George Bogg, and Mr. Keate. The 
 residue of the interest was given over. After the death of the tes- 
 tatrix, and while Elizabeth was under age, Mr. Dashwood paid his 
 addresses to her, dnd proposed, through his solicitor, to Mr. Bogg, 
 to settle 6000/. upon the marriage ; a proposal, which Mr. Bogg 
 communicated by letter to his co-trustees. In answer to which, 
 Lord Bulkeky stated in effect, that with reference to rank, charac- 
 ter, and connection, the proposal was perfectly agreeable ; at the 
 same time referring to the settlement, which he requested Mr. Bogg 
 to see was a proper one. The other trustees gave the like written 
 consent to the marriage, upon condition that the settlement was 
 made. The settlement, though prepared, was not executed in con- 
 Co) 10 Yes. 242. 
 ( /O Ibid. 230. and see the next chapter towards the conclusion of sect 1.
 
 SECT. II.] upon Condition. 543 
 
 sequence of the death of Mr. Dashwood's father ; after which event, 
 Mr. Dashwood refused to make or execute any settlement ; and then 
 the executors retracted their consent by a written notice. The mar- 
 riage, nevertheless, was afterwards solemnized ; and Lord Eldon 
 confirmed Lord Rosslyn's decree (which declared that Elizabeth 
 was only entitled to the 400/. a year for life, in consequence of her 
 marriage without the consent of the executors, (upon the principle, 
 that, when Mr. Dashwood distinctly refused to execute any settle- 
 ment, as he had proposed to do, and which formed one of the 
 grounds for the consenting of the trustees to the connection, it was 
 not unreasonable in them to insist upon a settlement, and to with- 
 draw their consent upon a refusal. 
 
 Having given an example of conditional assent when the condition 
 was effectual, we shall next produce an instance, where the terms of 
 such an assent were held to have been performed, and therefore the 
 consent absolute. 
 
 In D^Ji guitar v. Drinkwater.(q] 20,OOOZ. were vested by the tes- 
 tator in his two sons and a Mr. Haywood (his trustees and execu- 
 tors,) to pay to his daughter Eliza; the interest from the time when 
 she attained twenty-one, until she married ; and if she married, 
 whether under that age or afterwards, without the written consent of 
 his trustees, or of those then living, the principal and interest were 
 to be settled to her separate use, and upon her issue ; but if she 
 married with such consent, 10,000i. of the fund were to be paid to 
 her, and the remainder settled to her separate use and appointment. 
 Eliza attained twenty-one, and married Captain D'A'guilar under 
 the following circumstances. Previous to the marriage of Eliza, she 
 resided with Haywood, through whom she informed her brothers of 
 the captain's proposals. Haywood invited the captain to his house, 
 and for some time afterwards, bis addresses were permitted without 
 objection. Differences, however, arose upon the subject of settle- 
 ment, and the captain's quitting the army; and the brother's de- 
 clared they would never consent to the connection. But, in consi- 
 deration of their sister's feelings and attachment, they were induced 
 to alter their resolution, and to promise to give a written consent, 
 which they stated they had done in a letter to Hayivood. The fact 
 was so, and Haywood, in answer, declared, that " he would not stand 
 in the way of any arrangement his co-trustees might think proper to 
 make with regard to their sister's concerns ;" but alluded to the ne- 
 cessity of a proper settlement being made, stating, nevertheless, 
 "that he mentioned the circumstance, not with a view of raising 
 objections, or meaning to differ from his co-trustees." After this, 
 the brothers gave an unqualified assent, but with reluctance, men- 
 tioning it to be given in consequence of a promise extorted against 
 their judgment; and from a sense of duty upon an apprehension of 
 their sister's life being in danger. The consent of the brothers hav- 
 ing been thus absolutely obtained, the only question was, whether 
 Haywood had consented. And Sir W. Grant, M. II. determined in 
 the affirmative. His Honour considered Haywood's assent to have 
 been conditional ; and his letter, when simplified, to amount to no 
 
 (y) 2 Ves. & Bea. 225.
 
 544 Of Legacies [Cn .XIII. 
 
 more than this, " if you (my co-trustees) consent, I will." And that, 
 as they did consent, his (HaywoocTs) consent was virtually included. 
 
 An observation must not be omitted, that, if the consent to a 
 marriage be upon condition of a proper settlement being executed 
 in pursuance of proposals for the purpose, but before the settlement 
 is approved and executed, the parties marry ; yet, if the settlement 
 be afterwards executed, the condition will be well performed ; and, 
 as it seems, upon this principle. The execution of the instrument 
 has relation to the period when the treaty commenced, so that, by 
 this fiction, the settlement being completed before the marriage, 
 there was a good previous assent to the celebration. Upon this sub- 
 ject, Lord Eldon expressed himself, in reference to the settlement 
 in Dashwood v. Lord Bulkeley : " Strictly speaking, (if the authori- 
 ties did not forbid the construction,) the natural interpretation 
 would be, that, if the settlement is made, the consent shall follow ; 
 and the mere offer will not do ; but in many of the cases, though 
 upon the treaty the intention seemed to be that the settlement 
 should be before marriage, yet a settlement after marriage has been 
 held sufficient to. satisfy such a conditional offer. "(r) 
 
 FOURTH. When consent is judicially considered, as having been 
 obtained, it is of no consequence whether the persons, upon whom 
 the obligation is imposed to acquire it, be mistaken in the circum- 
 stance, and suppose that it has not been given. 
 
 Accordingly it was contended in the case of D'Jlguilar v. Drink- 
 water last stated, that a letter written by Captain D'rfguilar shortly 
 before his marriage, showed he did not conceive the consent of Mr. 
 Haywood had been obtained, a circumstance of no little impor- 
 tance to demonstrate, that Mr. Haywood's assent had been with- 
 holden. But Sir W. Grant denied this conclusion, and thus ex- 
 pressed himself: " Whether Captain D'Jlguilar had never seen Mr. 
 Haywood's letter, or did not construe it as I do, I know not. The 
 question is, not as to what he thought or believed, but as to what 
 actually existed. In Campbell v. Lord Netterville, shortly stated in 
 2 Ves.,(s) it appears from the cases in the House of Lords, that 
 the parties were at the time of the first marriage quite ignorant of 
 the circumstances, which were held to amount to a constructive con- 
 sent on the part of the father ; samuch so, that instead of insisting 
 on it as a marriage by consent, they had refused to answer any of 
 the interrogatories in the bill, as tending to subject them to a for- 
 feiture of the wife's fortune. Advantage was taken of that silence 
 in the appellant's case, where it is said that it is inconsistent with 
 the -answer and marriage articles, and the subsequent marriage, &c. 
 It is accounted for by the respondent in this manner, that they were 
 not then so fully informed, as they were afterwards from the course 
 of the evidence, of the several steps taken before-hand by Burton 
 to forward the marriage, as by the cross-examination and other 
 evidence appeared." 
 
 FIFTH. Express consent to the marriages of legatees is not al- 
 ways necessary. It may be implied from the improper conduct of 
 the individuals whose assent is required by the terms of the condi- 
 tions. 
 
 (r) 10 Ves. 244, (,) p. 534. stated infra.
 
 SECT. II.] uport Condition. 545 
 
 It cannot be supposed that a testator, in requiring the consent of 
 relatives or strangers to the marriages of the objects of his bounty, 
 meant that they should abuse the confidence reposed in them and 
 convert it into an instrument of oppression, but as a prudential re- 
 straint for the comfort and happiness of the legatees. Upon this 
 principle it is, that courts of equity, in exercising their power and 
 authority upon the present subject, imply the necessary consent 
 when it is withholden by the persons entrusted to give or deny it, 
 after they have known and acquiesced in, or otherwise promoted, 
 addresses to the individuals, the propriety of whose marriages is en- 
 trusted to their care and vigilance. 
 
 Hence if a trustee, &.c. with the knowledge that the lady, whose 
 marriage is to be with his consent, is receiving addresses, stand by 
 and intimate no disapprobation, (t] or if he introduce a person to 
 her who embraces the opportunity, and, with the knowledge of the 
 trustee, continues to. address her with a view to marriage, without 
 the latter endeavouring to prevent it, in either case his consent to 
 her union will be implied. For it would be singularly unjust, and 
 doubtless inconsistent with the testator's intention in imposing the 
 condition, to permit the trustee, after a mutual attachment had been 
 suffered to mature under his sanction, to withhold his approbation 
 to the marriage, and to do violence to the feelings and affections of 
 the parties. The maxim therefore, qui tacit satis loquitur, is respect- 
 ed in those instances and constructive consents have been looked 
 upon as entitled to as much regard as if conveyed in express terms. 
 
 Thus in Campbell v. Lord Netterville,(u) Mr. Campbell bequeath- 
 ed to his grand-daughter Catherine Burton 60001. payable at her 
 marriage, provided it was concluded with consent of her father Sa- 
 muel; but if she dred unmarried, or married without such consent, 
 the money was limited over. Samuel encouraged proposals by Lord 
 Nettervilie, representing his daughter's fortune at 15,OOOZ. but after- 
 wards drew ba&k because he could not make good his part of the 
 proposals. The parties married privately, so that there was no ex- 
 press consent of the father obtained ; to remedy which and prevent 
 the forfeiture, articles were framed, making a proper settlement, and 
 a second marriage took place in facie ecclesiee. This was admitted, 
 and the probable reason of the father drawing back was, because 
 the bank in which he was engaged was in a precarious state. It 
 was held by the House of Lords, that the marriage having been en- 
 couraged between the parents till, from the circumstances of one of 
 them, he could not give the whole 15,0001. the implied assent which 
 had been given, should not be determined or prejudiced by that 
 accident. 
 
 Under this head, Lord Hardwicke in Strange v. Smith,(x) placed 
 the case of Daley v. Sir Edward Desbouverie, although Mr. Jltkyns 
 in his report of it,(t/) makes his Lordship to decide the case upon a 
 letter, as amounting to a conclusive consent. 
 
 In that case, the consent to the marriage of Lady Burke was con- 
 fided to three trustees, or the majority or survivors of them. Mr. 
 Daley, after continuing his addresses to that lady for five months 
 
 (0 2 Vern. 580. 19 Ves. 1$. (u) Cited in 2 Ves. sen. 534. 10 Ves. 243. 
 
 (or) Ambl. 264. (y) 2 Atk. 261.
 
 546 Of Legacies [Cn. XIII. 
 
 (but whether with the knowledge of any of the trustees does not ap- 
 pear,) informed Sir Edirard Desbouverie (one of the trustees) of his 
 intentions to marry Lady .Burke, and made proposals for a settle- 
 ment, which Sir Edward took down in writing and communicated 
 them to his co-trustees, who were unanimous in their being inadmis- 
 sible, as the interest of the lady's fortune was proposed to be receiv- 
 ed by Mr. Daley's father for life ; but they agreed upon counter- 
 proposals for settling upon tli marriage the whole of the lady's 
 fortune, allowing her and her husband a sufficient yearly sum for 
 their support. They immediately transmitted Mr. Daley's proposals 
 to a Mr. Taylor, in the -employ of Lady .Burke' s family, with a let- 
 ter (that was written only a few days before the marriage of the par- 
 ties,) in which they stated the inclination of that lady to marry Mr. 
 Daley; their being strangers to Mr. Daley the father; requesting 
 Mr. Taylor to ascertain the father's ability to make the settlement 
 proposed by his sori ; and recommending, if he were desirous of en- 
 tering into treaty; that the counsel of the family should be consulted. 
 The trustees then mentioned that Lady Burke might marry better, 
 and introduced the- passage which Lord Hardwicke is repbrted to 
 have considered an absolute consent : " Yet if Mr. Daley's father 
 will make the settlement proposed (by them the trustees,) we believe 
 the young folks are too .far engaged for us to attempt to break off 
 the match, and therefore we shall be obliged to consent to it." Up 
 to. this period there appears to be "nothing like an unconditional assent. 
 The trustees, in discharge of their duty, were endeavouring to pro- 
 cure what they considered a proper settlement upon Lady Burke, 
 and their consent to the marriage was expressly limited to a com- 
 pliance with their proposals. In' thisx there -was nothing either vicious 
 or fraudulent. There were further negotiations about the settle- 
 ment, which ended in nothing, and the parties married without any 
 other consent by the trustees than before detailed. Yet Lord Hard- 
 wicke determined, -that the trustees had given a sufficient assent by 
 the letter before stated. 
 
 That the last decision must be considered anomalous, appears from 
 Lord Eldon's judicious criticisms upon it. "In Lord Strange v. 
 Smith, Lord Hardwicke declares that the case of Daley v. Desbouve- 
 rie went upon fraud, i. e. upon the inclinations, affections, and pas- 
 sions of the young people. There is another way of putting it, that 
 the execution by two (for the consent of the majority was sufficient 
 there) was a consent ; but Lord Hardwicke in another case says, 
 that upon this subject of marriage the Court will construe otherwise 
 than upon other subjects ; and that must be the ground upon which 
 he held the execution to be a consent ; otherwise, I think, no one 
 would say it was a consent ; and accordingly, in Lord Strange v. 
 Smith, his Lordship puts it not upon that ground, but. upon fraud. 
 If it is to be maintained upon that ground of fraud on the young 
 people, there must have been circumstances we are not quite aware 
 of; for that letter was not more than five or six days before the mar- 
 riage. And if there was time for that letter to come to the know- 
 ledge of the parties, it is difficult to say their affections were entan- 
 gled, &c. in so short a period. Taking, however, Lord Hardwicke 
 to have decided upon the letter, the conclusion is, that he determined
 
 SECT. II.] upon Condition. 547 
 
 upon his own view of its meaning ; and upon such a point of con- 
 struction, one Judge may differ -from another. "(#) 
 
 If, as we have seen, consent to marriage will be implied, upon the 
 mere acquiescence of trustees, &c. in the courtship prior to that 
 event ; a fortiori, where a trustee, &c. has an interest in the pro- 
 perty, upon the legatee's marrying without his assent, and he en- 
 courages the marriage, and yet affects to withhold his consent, that 
 consent will be implied*; for his conduct in not having expressly 
 given it under those circumstances, is not only fraudulent but vicious, 
 and in violation of the confidence reposed in him by the testator. 
 The following case falls within this principle : 
 
 In Mesgrett v. Mesgrett,(a] Mrs. Tanden bequeathed to her only 
 child Maria, a pearl necklace and jewels; but, if she married under 
 twenty-one, without the consent of the testatrix's executors, or the 
 greater number of them, the legacy was to go to the children of the 
 testatrix's sister (wife of the defendant Mesgrett,) and she appointed 
 Mesgrett and two other persons her executors. Maria was eleven 
 years old at her mother's death. She lived some time afterwards 
 with CV, one of the executors, and was. Mere courted by the plaintiff, 
 her husband, the son of Mesgrett by a first wife. She afterwards 
 removed to the house of the executor Mesgrett, where the marriage 
 was had with his privity, although he now insisted that the legacy 
 was forfeited, and given over to the children of his second wife, the 
 testatrix's sister. The other executors admitted notice of the court- 
 ship, which they neither contradicted nor disapproved of, nor removed 
 the young lady, as they might have done: Under these circumstances, 
 the Lord Keeper decreed in favour of Mary, as it clearly appeared 
 there was at least a tacit consent, the will not prescribing the form 
 to be in writing or otherwise. And his Lordship imputed fraud to 
 Mesgrett in first promoting the marriage, and then pretending a for- 
 feiture had been incurred for want of a consent, in order to procure 
 the legacy for his children-by his second wife. 
 
 SIXTH. Consent to the marriage of a legatee will, be considered 
 well given, and the condition complied with, if the legatee marry 
 with the approbation of the testator in his life time, though in words 
 the testator has only spoken of a marriage to take place after his 
 death. The principle is this : The proper marriage of the legatee 
 being the essence of the condition, the purpose is answered by a 
 marriage under the eye, and with the consent of the testator.. The 
 condition, it is true, is not performed according to the letter, but it 
 is so in substance, which is sufficient. 
 
 Thus in Clarke v. Berkeley,(b) under a devise upon trust to con- 
 vey to the testator's daughter, in case she married wi,th the consent 
 of two of the trustees and her mother; and if she died before mar- 
 riage, or married without such consent, to other uses. The daughter 
 having married in her father's life time with his consent, Lord Cow- 
 per decreed a conveyance according to the will ; declaring the con- 
 dition to be dispensed with, the consent of the testator himself hav- 
 ing been obtained, which was more to be regarded than the consent 
 
 (z) 19 Ves. 19 & 12. (a) 2 Vern. 580. 
 
 (d) 2 Vern. 720. 8 Vin, Abr. 154. pi. 10. in marg. & C. and see Clerke v. Lucy, 
 ibid. pi. 11.
 
 548 Of Legacies [Cn. XIIL 
 
 of trustees, to whom he had delegated a power to consent in case 
 of marriage after his decease. 
 
 In Parnell v. Lyon,(c) Sir W. Grant proceeded upon the same 
 principle. 
 
 In that case, Mr. Barton bequeathed all his personal estate in 
 trust for his children equally. The shares of daughters to be paid 
 at their ages of thirty, or sooner, in case they, married with the con- 
 sent of such of his executors as mentioned -in the will. But if any 
 of them married without such consent, her share was to be settled 
 to her separate use for life, and at her death the capital was limited 
 over. Elizabeth (one of the daughters) married under twenty-one, 
 before the death of her father, and with his consent, as it was 
 alleged; but the fact was not in evidence. Conceiving that by 
 such marriage she was entitled to the immediate payment of her for- 
 tune, upon the death of her father, although she was far distant from 
 the age of thirty ; the suit was instituted. And Sir W. Grant de- 
 clared, that if, upon inquiry before the Master, the testator's consent 
 should be proved, it was equivalent to a marriage with consent of 
 the executors after his death, and would equally entitle Elizabeth 
 to payment of her portion. 
 
 A similar decision was made by Sir John Leach, V. C. in the case 
 of Wheeler v. Warner. (d) In that case Isaac Warner gave 10,000. 
 stock to his wife Mary Warner and his son Simeon Wqrner, upon 
 trust to pay the dividends to his daughter Sophia Warner, whilst she 
 remained single, or until she married with the consent of his wife 
 and son, or the survivor; and if she should, after his decease, marry 
 with such consent in writing, the trustees, or the survivor, were au- 
 thorized to advance any part of the stock (not exceeding one-third) 
 to the husband ; but if she married without such coniept, then the 
 testator declared other trusts of the whole fund for the benefit of his 
 daughter and her issue. Sarah Warner married Robert Wheeler, in 
 her father's life time, and after the testator's death a bill was filed 
 by Mrs. Wheeler and her children against the trustees, her husband 
 and others, for an account, and to have the rights of all parties as- 
 certained. The Master, to whom it was referred to inquire whether 
 Mr. and Mrs. Wheeler's marriage was had with the consent of the 
 testator, and if not, whether it was subsequently approved by him, 
 or whether he was afterwards reconciled to them, reported, that the 
 marriage took place without the consent of the parents, but that, 
 from a variety of facts, he found that the testator was reconciled, 
 and that a friendly intercourse had subsisted between him and Mr. 
 and Mrs. Wheeler, down to the time of his death. The preceding 
 cases of Parnell v. Lyon and Clarke v. Berkeley were cited in be- 
 half of the plaintiffs and Mr. Wheeler. Sir John Leach, V. C. ob- 
 served, that the authorities cited established the proposition, that a 
 marriage in the life time of the father, with his consent or subse- 
 quent approbation, was equivalent to a marriage after his death with 
 the consent of the trustees, and the directions must be given ac- 
 cording to the provisions of the will in that event ; and decreed, 
 that the husband was entitled to one-third part of 10,OOOZ. stock. 
 
 A similar determination was made by the same Judge in the re- 
 
 (c) 1 Ves. & Bea. 479. (d) i Sim. & Stu. 304.
 
 SECT. II.] upon Condition. 549 
 
 cent case of Smith v. Cawdery,(e) wherein a bequest was made to 
 Maty Young on the day of her marriage with any other person than 
 Henry Twynam ; and if she married him, then over. She married 
 H. Twynam in the life time and with the consent of the testator, 
 and she was held entitled to the bequest. ' 
 
 (A. 4.) Whether conditions requiring consent will be con- 
 sidered fully performed by the first marriage with the required as- 
 sent. 
 
 The intention of testators, in imposing restraints upon the mar- 
 riages of their children, is to guard the'inexperience of youth from 
 surprise- and' "imposition, by the prevention of hasty and inconside- 
 rate engagements. A court of equity, therefore, acting upon the 
 authority of this intention, will limit the general terms of the con- 
 dition to an assent to one marriage only. If then a legatee once 
 marry with consent, whether during the life of the testator impos- 
 ing the condition, if with his approbation ; or afterwards, with the 
 proper authority ; as the condition has heen complied with, it be- 
 comes extinct ; so that a second marriage without consent will not 
 prejudice the legatee. 
 
 In Hutcheson v>Hammond,(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 
 
 (<?) 2 Sim. & Stu. 358. (/) 3 Broi C. C. 128. 146. (,) 3 Ves. 227. see ante, p. 
 VOL. I. 4 A
 
 550 Of Legacies [Cn. XIIL 
 
 the subsequent approbation of the testator,) and being a widow at 
 his death, was not intended to be subject to the condition. 
 
 (A. 5.) When conditions requiring consent to marriages are to 
 be limited within the periods appointed for their payment. 
 
 Conditions of marriage with the consent of parents, guardians, 
 &c. are generally limited to the times when the legacies vest or are 
 made payable ; so that if there w r ere two periods mentioned in a will, 
 upon either of which a legacy was to vest or be paid, vjz. at the 
 legatee's age- of twenty-one^or marriage with consent, with a clause 
 of forfeiture upon marriage without consent ; a court of equity 
 will construe such clause as having relation to a marriage under the 
 specified age. Hence, if the' legatee attain that age, compliance 
 with the condition is unnecessary ; for it has become extinct in 
 consequence of the legatee's attaining twenty^one.(A) This is 
 firmly established by the following authorities : 
 
 In Desbody v. Boyville,(i) stock was vested in trustees to apply 
 the dividends for th benefit of the testator's grand-daughter during 
 minority, or until her marriage ; with a direction to transfer the 
 fund to her when she attained twenty-one, or should be married 
 with the consent of A. and B. But in case she married without 
 such consent, the stock was to be settled upon herself and chil- 
 dren ; and if she left no issue, the stock was limited over. The 
 grand-daughter, not having married during minority, claimed im- 
 mediate payment of her legacy, in which claim she must have fail- 
 ed, if the transfer was to await the contingency of her marriage 
 with the consent of* A. and B. But -Lord King, C. was of opinion, 
 that, as the grand-daughter had attained twenty-one, .she took a 
 vested absolute interest in the stock ; .and that, since the testator 
 expressly directed the fund to- be transferred to her at that age, the 
 condition annexed to her marriage must be restrained to a marriage 
 before twenty-one : for if the stock were transferred to her at that 
 period as the will prescribed, the executors, in the event of her 
 afterwards marrying without the consent of Jl. and B. could not 
 upon her death transfer the fund to her children ; or, if no issue, to 
 the remainder-man. Whence it was clear, that the testator could 
 not intend there should be any .forfeiture, but only in the event of 
 the grand-daughter's marriage without, consent under twenty-one. 
 His Lordship, therefore, ordered the stock to be transferred to her. 
 
 Lord Camden made a similar decision in Knapp v. Noyes,(k) 
 where the testator gave to' each of his five children 15001. payable 
 to daughters at the times of their marriages with the consent of his 
 executors, or of the survivor ; but if any -of them married without 
 such consent, she was only to receive 5001. part of that sum, and 
 the residue was limited over. Mary, one of the daughters, never 
 married, and died after attaining twenty-one. The will, contained 
 a clause giving maintenance to the children, until their portions 
 became payable ; and another clause appointing his executors 
 guardians for them. The question was, whether,, as Mary never 
 
 (A) See ante, p. 531. For an instance where this doctrine was considered inap- 
 
 SMeriv. 116. {*) Ambl. 662.
 
 SECT. II.] upon Condition. 
 
 married with consent, her representatives were entitled to her por- 
 tion ? And Lord Camden determined in their favour ; observing, 
 it appeared from the whole will, that marriage with consent was 
 not the sole period appointed for payment ; but also the age ot 
 twenty-one. That this was obvious from the appointment ot the 
 executors to be guardians during the minority of the legatees, and 
 consequently to assent to their marriages while infants ; and the 
 gift of maintenance also showed the intent that twenty-one was one 
 of the periods when the portions should be paid, as such a provi- 
 sion was generally confined to the infancy of legatees, tor thos 
 reasons, the Court declared the condition of marriage with consent, 
 meant a marriage at an earlier time than twenty-one ; so .that Mary, 
 having attained that age, took -an absolute interest discharged tr 
 such condition. 
 
 Upon the principle of those cases, if a legacy be directed to be 
 paid at the expiration of a year after "the testator's death, with a 
 condition of revocation, if the legatee married B., and a limitation 
 over in that event ; should' the legatee survive the time of payment, 
 i. e. the year, and then marry B., she will be entitled to the legacy 
 notwithstanding the marriage. 
 
 This was decided in Os&ora v. Brown,(l) where the testator gave 
 to his daughter Mary Brown '4001., to be paid in twelvemonths 
 after his death ; but if she married John Osborn, of, &c. then h 
 revoked and made void the legacy, and gave her in lieu ot it 
 shilling, and no more. Mary continued unmarried about fourteen 
 months "after the decease of the testator, and then married Mr. Us- 
 born. Her right to. the legacy having been disputed in conse- 
 quence of that marriage, Lord Rbsslyn ordered it to be paid to- her 
 with interest; upon the principle, that the event, upon which the 
 bequest was revoked, was to be referred and restrained to the pe- 
 riod during which the payment was suspended. 
 
 fa.! But suppose a legatee, where the bequest is made to her at 
 twenty-one, or sooner upon a marriage with consent, with a limita 
 lion over if she die before that age, or be married with such consent, 
 marries 'during minority without it, and afterwards attains twenty- 
 one. It may be asked, Will she nevertheless be entitled to the le- 
 eacv <? It seems to be the. better opinion that she is so entitled,- and 
 upon this construction of the bequest: The legatee was intended 1 
 have the legacy at twenty-one, without any qualification, if she hvec 
 so long ; but as she might marry before '-that age, and have occasion 
 for the money, and yet die a minor j she was also intended to take 
 the legacy in that event, provided the marriage took place with the 
 required consent. It follows, from this interpretation, that the efl 
 of the condition depends upon the contingency of death under 
 twenty-one; so that upon the legatee's attaining that age she will 
 take the legacy, as if no condition whatever had been impoi 
 
 Accordingly, in Austen v. Hobe^(m)#esiduary personal estate 
 was bequeathed, in trust for the testator's son Henry Austen, when 
 and so soon as he attained' twenty-one, or married before i 
 with the previous consent of guardians, or the majority of 1 
 
 ' 
 
 (013Ves.l26.130.
 
 552 Of Legacies [Cn. XIII. 
 
 living : " but if he should not attain twenty-one, or marry before that 
 age with such consent and approbation as aforesaid," the property 
 was given over to the testator's daughters. Henry a'ttained the age 
 of twenty-one, but married during minority, without the previous 
 consent of his guardians. And Sir W. Grant declared, that Henry, 
 upon attaining twenty-one, became absolutely entitled to the per- 
 sonal estate. 
 
 The same Judge made a similar decision in Knight v. Cameron,(n) 
 where the bequest was to Miss Douglas of 1000Z. to be paid as soon 
 as she should attain twenty-one, and in case she lived to attain that 
 age, "and not otherwise^" or Upon. her marriage, which should first 
 happen, provided she married with the consent of the testator's ex- 
 ecutors^ " and not otherwise;" but if she died before twenty-one, or 
 being married with such consent as aforesaid, the legacy was other- 
 wise disposed of. Miss Douglas married without any consent, and 
 was a minor at .the time of the decree. Upon a question as to her 
 right to the legacy, Sir W. Grant said, the condition was precedent, 
 and that Miss Douglas, before she could make a title to receive the 
 money, must predicate of herself, either that she attained twenty-one, 
 or had married with consent. The latter she could not do, and -the 
 former period had not arrived ; so that her title at present was defec- 
 tive. His Honour, however, made the following declaration ; that 
 Miss Douglas, not having attained twenty-one, nor married with 
 consent, is not now entitled : a declaration which implied her right 
 upon arriving at the above age.. 
 
 The terms in which the. condition is expressed must decide the 
 question, whether the marriage without consent before twenty-one 
 will, or will not be fatal to the legatee. Tlie above are instances, 
 where, notwithstanding breaches of the conditions, the legatees were 
 declared entitled to the legacies, upon attaining their ages of 
 twenty-one. In those cases, the testators did not declare that mar- 
 riage without consent should determine the rights of the legatees, 
 but. merely that they should not have them earlier than twenty-one, 
 unless they married with consent. It was the intention (as has been 
 observed,) that the legatees should, at all events, receive, their le- 
 gacies upon attaining twenty-one. But when the conditions are so 
 framed, as to determine the interest of the legatees upon marrying 
 without consent, as where the required assents operate as conditions 
 subsequent, non-compliance with them will be fatal. For example : 
 if the .bequest be to Jl., 'to be paid at twenty-one or marriage ; but 
 if w2. die under twenty-one, or marry without the consent of J3., then 
 to C.; marriage without consent before twenty-one will be a forfei- 
 ture of the legacy. 
 
 An instance of this kind occurred in Chauncy v. Gray don. (o) 
 There trustees were directed to transfer South Sea stock to each 
 child of the testator's nephew at twenty-one or marriage, they mar- 
 rying with the consent prescribed in the will ; " and in case any of 
 the children died before twenty-one, or should marry without con- 
 sent as aforesaid,"(jp) their shares were to go over. Two of the 
 
 (n) 14Ves. 389. (o)2Atk. 616. 
 
 (/*) See Sir W. Grant's observations in regard to conditions precedent and sub- 
 sequent, 14 Ves. 392.
 
 SECT. II.] upon Condition. 553 
 
 children married during minority without consent ; and it was con- 
 tended, that if they lived to attain twenty-one, they, notwithstanding 
 their marriages without consent, would be entitled to tlieir legacies. 
 But Lord Hardwicke was of a contrary opinion, and said, " it- was 
 the intention of the testator that there should be no new time which 
 should arise, but the legacy to be absolutely gone." 
 
 It is observable, .that the' commencement of the clause containing 
 the last bequest was similar to the 'cases before, stated, but the clause 
 by which the legacy is given over is different. There the legacies 
 were given on precedent conditions, upon the happening of one of 
 two events, the attainment of twenty-one or a marriage with consent; 
 with a mere declaration, that if neither of them happened, the lega,- 
 tees were not to have the legacies. Hence, if either Contingency did 
 happen, 'the condition was satisfied ; whereas, in the last case, the 
 clause limiting over .the legacy showed that a subsequent, not a pre- 
 cedent, condition was intended. The interest previously vested was 
 expressly determined and given- over, if the legatee die'd before twen- 
 ty-one, or married without consent ; consequently, it was the inten- 
 tion of the testator, as Lord Hardwicke observed, that there should 
 be " no new. time which should arise, but the legacy to be absolutely 
 gone." The distinction is attended with nicety, but appears to be 
 substantial, and it reconciles the last authority with the cases before 
 stated. 
 
 (A. 6.) As to conditions requiring marriages with consent being 
 considered in terrorem.(q) 
 
 The doctrine upon this subject is thus stated by Lord Hardwicke : 
 " It is an established rule in the Civil law, and has long been, the 
 doctrine of a court of Equity, that where a personal legacy .is given 
 to a child on condition of marriage with consent, this is not looked 
 upon as a condition, but as a declaration, of the testator in terrorem.(r) 
 However unsatisfactory the reason of the rule may appear, as it is 
 difficult to suppose that a testator made use of expressions in a sense 
 different from their obvious import ; the rule nevertheless is. clearly 
 settled to the. extent of Lord Hardwicke' s statement, where the con- 
 dition is subsequent, and there is no limitation over upon a breach 
 of it., But that it is so settled where the condition is precedent, is 
 not so certain, as has been shown in a preceding page.(s) Lord 
 Hardwicke said, in the case before referred to,() " he did not find 
 that the Civil or Ecclesiastical law made any distinction between 
 conditions precedent and subsequent ; but in both cases, the condi- 
 tion, as such, was merely void." .This is certainly correct, if under-, 
 stood of that law as at first established ; but not so sure, if it include 
 all the modifications and alterations of the rule made from time to 
 time in the latter ages of the Roman state. (u) One of those modi- 
 fications is thus, stated by Swinburne : " The testator doth make thee 
 his executor, or give thee 100L if thou -do marry with the counsel or 
 advice of his brother. If thou do marry without his counsel or ad- 
 vice, thou art excluded. "(a?) But he adds, if the advice be asked, 
 the legatee was not obliged to follow it : a strange conclusion, to 
 
 (?) Ante, pp. 508. 530. (r) Reynish v. Martin, 3 Atk. 331. (s) p. Ante, 510. 
 (0 Reynish v. Martin, 3 Atk. 332. (w) Ante, p. 508. 
 
 (:r) Swinb. pt. 4. sect. 12. art. 17.
 
 554 Of Legacies [CH. XIII. 
 
 reject the substance for the shadow. However", this limitation of the 
 ancient rule bears closely upon the present subject; and.it is but 
 reasonable to doubt whether, in the times before alluded to, the 
 consent of parents or guardians, to the marriages of their children 
 or wards might not have been the subjects of good conditions. The 
 affirmative of the proposition is the more -probable, since the rule of 
 the Civil law, as finally settled, enforced' every condition in restraint 
 of marriage, which did not directly or indirectly import an absolute 
 injunction to celibacy. (y) For those reasons, it is conceived, that 
 when the condition is precedent, requiring the consent of 'A. to the 
 marriage of B., B. must obtain the consent, whether the legacy' be 
 Ijmited over or not. That B.' must <io so, if the consent were restrict- 
 ed to his marriage under twenty-one or twenty-eight, is clearly set- 
 tled by the case's,(2) upon the principle of necessity for B. to answer 
 the description in the bequest. And, if the restraint be permitted 
 up to the age of twenty-eight, there appears to be no solid reason 
 why the condition should nbt be equally good, where a testator thinks 
 proper to continue the partial restriction during the life of the lega- 
 tee ; for what other limit can be satisfactorily defined. The requi- 
 sition of consent may in this instance be equally proper, as in the 
 examples just produced, as from the mental weakness of the lega- 
 tee, &c. 
 
 With respect to conditions subsequent, it is now an established 
 rule (however unreasonable its foundation,) that, when there is no 
 bequest over upon non-compliance with a condition requiring con- 
 sent to marriage, 'the legacy is single and absolute; the condition 
 being rejected as a mere declaration in terrorem. And it will 
 make no difference, whether there be no disposition whatever of 
 the fund, upon a breach of the condition, or the original legacy be 
 reduced upon the happening of that event. 
 
 Accordingly in Garret v. Pritty,(a) the testator . gave 3000Z. to 
 his daughter, part of it to be paid to her at twenty-one, or on mar- 
 riage, which should first happen, and the remainder to be paid to 
 her at the expiration <of two years after attaining that- age or mar- 
 rying, which should first take place. But if she died before twenty- 
 one or marriage, he gave the 3000L to the defendant Pritty, a 
 disposition which was disappointed by the daughter's marriage after 
 mentioned. But the testator declared, in a subsequent part of the 
 will, that if his .daughter married before twenty-one without the 
 consent. of his worthy friend (a Mr. Scriven,) in case he were then 
 living, the legacy should cease and be void, and- he gave -to his 
 daughter, in lieu of it, 500Z. only. The daughter married without 
 the consent and during the hfe of Scriven; and, it is presumed, 
 under twenty-one. Yet it was declared, that she was entitled to 
 the entire legacy of 3000Z. ; and principally, as Mr. Vernon says, 
 because it was not expressly devised, over. But he was wrong in 
 stating that the money was in the above event- directed to fall into 
 the residue ; for the will contained no such direction. 
 
 The next case is an authority that, where there -is no express 
 disposition of the legacy upon a marriage without the requisite as- 
 
 (y) 2 Dick. 721. ( z ) See ante, p. 508. et. sea. 
 
 (a) 2 Vern, 293. stated from Reg. Lib. SMeriv. 120
 
 SECT. II.] upon Condition. 555 
 
 sent, but a power of abridging it is delegated to another person, the 
 condition will be considered equally in terrorem, as. if the diminution 
 of the legacy had been provided by the testator in his will. 
 
 -In Wheeler v.'Bingham,(b) 1500J. were given to each of the tes- 
 tator's grand-daughters, .who should be living and unmarried at his 
 death ; and he desired that none of them should marry without the 
 consent of their father and mother, or the survivor; and therefore, 
 if any of them married without such consent, he revoked their lega- 
 cies, declaring that they should not -be entitled to any benefit under 
 his will, further than what their father and mother, or the survivor, 
 should direct. And he ordered that, after satisfaction of his lega- 
 cies, if any money remained in the hands of his trustees, the same 
 should be paid to his daughter- for life, and after her death to the 
 defendant Bingham. Mrs. Wheeler (one of the grand-daughters) 
 married during the life of her father and mother, without their con- 
 sent, and. she notwithstanding claimed the legacy of 1500/. Lord 
 Hardwicke determined the following points: 1st, that the condi- 
 tion was subsequent ; 2d, that the. revocation of the legacy, in the 
 event of a non-compliance with the condition, was not equivalent 
 to a limitation over of it ; a determination in conformity with the 
 last case ; and, 3d, that the declaration, in regard to the legatees 
 not being entitled to any further benefit under the will, than what 
 the father and mother, or the survivor, should direct, did not operate 
 as a devise over, as it only amounted to a power in both, or the 
 survivor, to abridge the legacy ; which had 'no other effect, than if 
 the testator had reduced the bequest in his will, as in the preceding 
 case ; and that so much of the funds as was not appointed under 
 the power, if exercised, would fall into the residue; a mode of 
 devolution not equivalent to an express direction that it should sink 
 into the estate when disposed of by the will. 
 
 It appears from the judgments in the preceding cases,, that if the 
 legacy be limited over to another person, upon fhe marriage of the 
 legatee without consent, the executory bequest will take effect 'upon 
 a breach of the condition, which in this" instance is not considered 
 in terrorem. "The true ground (says Lord Hardwicke,} upon 
 which a court of 'equity has suffered the condition to effectuate, is 
 not the intention, but the right of a third person ; the being given 
 over and vesting in that person, if the condition be not performed."(c) 
 In illustration of this, his Lordship remarked, if the testator, in 
 the last case, had said that, upon his grand-daughter marrying 
 without consent, he revoked the legacy, and. gave it to the father or 
 mother to dispose of, such a declaration would have been a devise 
 over.(d) 
 
 An example of this kind is afforded by the case of Stratton v. 
 Grymes,(e) in which Mr. Stratton (a citizen of London,) having issue 
 a son 'and daughter, bequeathed two-thirds of his legatory part to 
 his daughter ; but if she married under twenty-one without the con- 
 sent of her brother, and his kinsman (two of his executors,) then 
 5001!. should be deducted ' out of her share, and paid to his son. 
 The daughter married without consent, and during minority, as is 
 
 (6) 3Atk..364. (c)3Atk. 367. . (rf) Ibid. 
 
 (e).2 Vern. 357. ed. by Raithby, and see Barton v. Barton, ibid. 308.
 
 556 Of Legacies [Cn. XIII. 
 
 presumed ; upon which a question arose as to the effect of the con- 
 dition ; whether it was in terrorem. And the Court declared it 
 was not to be so considered ; for, upon the -daughter's marriage 
 without consent, an interest vested in the son, who was to be looked 
 upon as a person in the contemplation of the testator, as well as his 
 daughter. 
 
 In the last case, and in that proposed by Lord Hardwicke as 
 above, the particular legacies were limited over. But whether a 
 mere residuary bequest amounts- to a disposition of the legacy within 
 the rule, has been in practice the subject of considerable doubt. 
 Perhaps the following distinction will be found correct. If the tes- 
 tator give no direction for the legacy to fall into the residue, a dis- 
 position of that fund cannot be a limitation over of the individual 
 legacy, because it is not permitted to form a part of the residue. On 
 the other hand, if the testator direct the legacy .to fall into the re- 
 sidue, so that it becomes disposable as part of that estate, such direc- 
 tion will be virtually a limitation over of the particular legacy. 
 With respect to the authorities ; the case of Jimos v. Horner(f ) is 
 not an authority, as it was never finally determined. [g] Paget v. 
 Hayivood, referred to by Willes, C. J, in Harvey v. Aston,(h] is too 
 imperfectly stated to have much importance attached to it. Semp- 
 hill v. Bayly,(i) decided nothing upon this subject, for the 1000Z. 
 bequeathed to Elizabeth, (the question in the cause,) was made pay- 
 able* to her at twenty-one or marriage, and no restraint upon her 
 .marriage was imposed by the testator as to that legacy. In Wheeler 
 v. Bingham (before stated,) Lord Hardwicke expressly markst he 
 distinction above mentioned. There was no direction, in that case, 
 that the grand-daughter's legacy should fall into the residue; and 
 although that estate was disposed of, his Lordship determined that 
 the condition annexed to the legacy was merely in terrorem, and, 
 consequently, that it did not fall into and pass with the residue to 
 the residuary legatee.' But he 'declared an opinion, that, if there 
 had been an express devise, in the event of the legatee not perform- 
 ing the condition, that the money should sink into the residue, such 
 direction would have amounted to a devise -over of the particular 
 legacy. (k) Lord Thurlow's observation in Scott v. Tyler, does not 
 contradict Lord Hardwicke' 's opinion, for in that case there was no 
 direction by the testator, that the benefits intended for Margaret 
 should fall into the residue upon her marriage without consent. It 
 is, therefore, dnly sound criticism to confine Lord Thurlow's expres- 
 sions to the facts of the case before him ; and as not intended to 
 apply to instances, where there are express directions that on breach 
 of the conditions, the legacies shall fall into the residue. His Lord- 
 ship's words were these, "The will before us contains a residuary 
 bequest. But that has been repeatedly and well enough determined 
 to leave the legacy in statu quo. It only prevents that,- which has 
 not been disposed of already, whatever be its amount, from falling 
 by the order of law, to the executor or next of kin."(Z) Whatever 
 may be the value of the above remarks, in order to prepare the reader 
 for the decision of Sir W. Grant, M. R. in the following case ; that 
 
 (/) 1 Eq. Ca. Abr. 111. pi. 9. (g) Forrest, 216. (h} 1 Atk. 378. 
 
 (0 Pre. Ch. 562. (*) 3 Atk. 368. (/) 2 Dick. 723.
 
 SECT. II.] upon Condition. 557 
 
 determination is a distinct authority for the proposition j that wher- 
 ever a testator directs a legacy, determinable upon a marriage with- 
 out consent, to fall into the residue, which is made the subject of 
 bequest, that is such a specific disposition of the individual legacy, 
 as to pass it to the residuary legatee, upon non-compliance with the 
 condition by the particular legatee. 
 
 In Lloyd v. Branton,(m) the trusts of 24 ; OOOZ. were declared by 
 the will oif Mr. Jllderson in favour of his. four grand-nieces, to the 
 following effect : The above sum was divided into four shares of 
 6000Z. each,, the dividends of one of which his trustees were directed 
 to pay to the separate use of his grand-niece Sarah (then of age) 
 for life, and the capital among her children, at her death. Similar 
 trusts were declared of the remaining shares in favour of his other 
 grand-nieces (who were infants) and their children. But if any of 
 his grand-nieces married without the ooqsent of. his trustees, the 
 testator declared that they should forfeit the dividends bequeathed 
 to them for life, and that, the dividends and capital ".should there- 
 upon sink into and constitute part of .the residuary of his estate, 
 which - he gave to his grand-nephews." . The amounts of the shares 
 were varied by two codicils, neither of which affected the question 
 that arose upon the will, Sarah married Mr. Barnard at the age 
 of twenty-six, without consent, and on the question, whether her 
 legacy was forfeited *? two points were made in her favour; first, 
 that not being under twenty-one at the time of marriage, she was 
 not within the compass o the condition, upon the principle of the 
 authorities mentioned under subdivision (A. 5.);(n).or secondly, that 
 the eondition was merely in terrorem, since there was no bequest 
 over of the legacy, the direction for its falling into the residue and 
 the disposition, of such residue not being (as it was argued) a suffi- 
 .cient limitation over of the -individual legacy, agreeably with pre- 
 ceding adjudications. To the first point 'Sir W. Grant answered, 
 that the condition could not be confined to Sarah's minority, as-she 
 was twenty-one when the will was made. And as to the second, 
 his Honour thus expressed himself: " In the present case, there is a 
 direction that the forfeited bequests shall sink into and constitute 
 part of the residue thereinafterwards bequeathed. It does not rest, 
 therefore, on a mere declaration of forfeiture. There is an express 
 disposition made of what is to be forfeited. It was said, that a di- 
 rection that it shall fall into the residue is no more than the law 
 would imply, and cannot therefore amount to a bequest over. But 
 when it was decided that a residuary clause did not carry such a 
 legacy, it was by consequence decided that it did not fall into the 
 residue, for if it did, the residuary legatee would be entitled to it. 
 What is here declared is, that that residue shall include in it the 
 legacies declared to be forfeited. I am of opinion that there is in 
 this case a valid devise over, and as the- marriage appears to have been 
 had without consent, it follows that the forfeiture takes place." 
 
 Previously to quitting the present subject, it is proper to notice 
 a determination of Sir Thomas Plumer, which has not been con- 
 sidered as free from doubt. 
 
 The case alluded to is Marples v. Bainbridge,(o) where Thomas 
 
 (m) SMeriv. 108. 118. (n) Ante, p. 550. . (o) iMad. 590. 
 
 roL. i* 4 B
 
 558 Of Legacies [Cri. XIII. 
 
 Marples bequeathed to his wife " should she survive and continue 
 unmarried," all his personal estate for life ; and he disposed of it 
 after her decease. The widow married again, and the property for 
 the remainder of her life was claimed by the testator's next of kin ; 
 but his Honour decided against such claim, holding that the be- 
 quest was a condition., and in terrorem; and consequently the widow, 
 notwithstanding a breach of it, was entitled to the property for life. 
 
 The objection to this decree is, that it is founded in mistake (as 
 is presumed) from not distinguishing between a limitation and la 
 condition. (p) Whether a limitation or condition is intended by a 
 testator, is to be ascertained from the whole of his will ; technical 
 words to constitute either of them not being required in testamenta- 
 ry eases. (9) That a limitation, in the present instance, was intend- 
 ed, seems apparent from the terms of the bequest. The gift in 
 substance is made to the wife for life, or quousque a second mar- 
 riage. Upon the happening of either event her interest was to ex- 
 pire. It was one of.the natural periods at which her estate was to 
 determine: a benefit intended durante viduitate, and no longer ; so 
 that upon the happening of either contingency, the interest which 
 was only so long granted must cease. In such a case, the doctrine 
 of conditions in terrorem is wholly inapplicable, as appears from 
 Lord Hardwicke's decree in t-he following case : 
 
 In Richards v. Baker,(r) Mr. Richards bequeathed to his wife 
 his goods, furniture, &c. in or belonging to his house, at Edmonton, 
 "so long as she continued his widow and no longer ;". and he dis- 
 posed of his residuary personal estate, but gave no direction as ta 
 what was to become of the articles, &c. bequeathed to his wife, in 
 the event- of her-second marriage. Lord Hardwicke declared, that 
 she was entitled only to the use of them during her widowhood. 
 
 The difference between those two cases is, that in the first case, 
 the widow's interest rs determinable upon her death or marriage ; 
 and by the second, upon her marriage only. There was in neither' 
 a limitation over of the legacy upon the widow's marriage. The 
 case before Lord Hardtvickewas not cited to Sir Thomas Plumer, and 
 it is presumed that, had it been mentioned, his Honour would have pro- 
 nounced a different decree than was made in Marples v. Bainbridge. 
 
 B. Conditions requiring marriages with persons bearing the sur- 
 names of testators. 
 
 Whether the mere assumption of the surname of a testator will be 
 a performance of a condition 'requiring the legatee to marry a per- 
 son of that name, previous to the vesting of the legacy, does not ap- 
 pear to be clearly settled. The objection to such a mode, viz. the 
 fraud which may be committed upon the testator's intention, by the 
 adaption of the name before the marriage with a view to the legacy, 
 and then abandoning the assumed name after receipt of the money, 
 does not seem to be obviated by the obtaining of an Act of Parlia- 
 ment or a royal license. The former, in giving a new name, does 
 not abolish the old. So that the party may, if he think proper, use 
 his old name upon every occasion, and accept gifts or legacies by it 
 alone. (s) The latter is a mere permission to take the new name, 
 
 ( fi) See several cases upon this distinction collected antf, p. 526. et sea. 
 (q) Ante, p. 502. ( r ) 2 Atk. 321. (*) 15 Ves. 100.
 
 SECT. II, J upon Condition. 559 
 
 does not give it, and is nothing more than a voluntary assumption of 
 it. If then neither of those methods in taking the new names re- 
 moves the objection to its voluntary assumption, it seems but rea- 
 sonable that as by that mode the condition is strictly and literally 
 performed, it should be considered sufficient to entitle the legatee 
 to the legacy. 
 
 Sir Joseph JeJtyll, M. R. (a Judge of no little authority) declared 
 such to be his opinion, in the case of Barlow v.. Bateman. And 
 although his decree was rerersed in the House of Loi'ds, the ground 
 of the reversal may possibly have been different from what is usually 
 inferred from the argument of the appellant's counsel appearing in 
 the printed report, as w shall more particularly notice. That 
 was a case of mere assumption of name, upon the eve and on ac- 
 count of the marriage. And his Honour said, " I am of opinion, 
 that the condition is complied with by the defendant's taking the 
 name of Barlow. Surnames are not of very great antiquity, for in 
 ancient times the appellations of persons were by their Christian 
 names, and the places of their habitations, as Thomas of Dale, viz. 
 the place where he lived. (/) I am satisfied the usage of passing 
 Acts of Parliament for the taking upon one a surname is but 
 modern, and that any person may take upon him what surname, and 
 as many surnames, as he pleases, without'.an Act of Parliament. "(w) 
 With this opinion Abbot, C. J. coincided, in the recent case of Doe 
 v. Yatcs, in which he expressed himself to the following effect. 
 " A name assumed by the voluntary act of a young man, at his out- 
 set into life, adopted by all who know him, and by which he is 
 constantly called, becomes, for all purposes that occur to my mind, 
 as much and effectually his name, as if he had obtained an Act of 
 Parliament to confer it upon him." Upon thewhole, the following rule 
 may probably be laid down as the criterion to determine those cases : 
 
 Where nothing appears upon the will declaratory of the testator's 
 intention, except that the legatee is to marry a person bearing his 
 surname, the assumption of that name before the marriage will be 
 sufficient. But where, in addition to this, requisition, the context of 
 the will sufficiently shows, that by the words "name," or " sur- 
 name," the testator meant to designate a person inheriting it from 
 his father .(as in the instances mentioned in the second chapter), (x) 
 neither the assumption of the name or surnane with or without an 
 Act of Parliament, nor by royal license, will be an effectual com- 
 pliance with the Condition. With respect to the authorities appli- 
 cable to the effect of a voluntary assumption of name 
 
 In Barlow v. Bateman,(y) Mr. Barlow bequeathed to his kins- 
 woman, Mary Barlow, lOOOj. payable at twenty-one or marriage; 
 but if she died under that age or unmarried, he gave the legacy to 
 his kinsman, Charles Barlmo. The will then proceeded, " In case 
 the said Mary Barlow shall marry with any person of the surname 
 of Barlow, then I give her the further sum of 1000J. to be paid on 
 the day of such marriage with a. Barlow aforesaid. But if the said 
 Mary Barlow shall die unmarried, or shall marry a person not bear- 
 ing the surname of Barlow, then I give the last-mentioned 1000Z. 
 
 (0 See Camden's remains concerning Britam, ed. 1637. p. 141. stated 5 Bam. 
 & Aid. 552. in a note. (it) 3 P.. Will. 66. (x\ Ante, p. 102, &c. 
 
 (t/) 2Bro. Part. Ca, 272. 8vo. ed. 3 P. Will. 65. S. C. 

 
 560 Of Legacies [Cn. Xllt 
 
 to the said Charles Barlow." Soon after the testator's death, Mary 
 married the respondent Robert, whose father's surname was Bate- 
 man; and Robert was christened, called, and known by the name 
 of Robert Bateman; but on the occasion of the marriage, and not 
 before, he assumed the surname of Barlow, to entitle himself to the 
 additional legacy. Charles, the appellant, conceiving, that by the 
 above marriage he became entitled to the conditional legacy of 
 1000Z. commenced a suit to procure it, but his bill was dismissed 
 by Sir Joseph Jekyll, who thought that as Robert bore the surname 
 of Barlow at the time of the marriage, the condition was well per- 
 formed; and, upon a bill "filed by Robert, he ordered both legacies 
 to be paid. Charles appealed from both decrees, on the latter of 
 which his appeal was dismissed for irregularity, the decree not 
 having been signed by the Chancellor; but the first decree was re- 
 versed, and, from the tenor .of the argument for the appellant, it might 
 be inferred, that the reversal was founded upon the principle, that 
 Robert could not, without legal authority, take the surname of Barlow. 
 
 But the judgment of the House of Lords may have been founded 
 upon a different reason; the particular intention of the testator as 
 collected from the expressions in his will. It might have struck 
 their Lordships, from the language of the bequests, that the man 
 pointed out for Mary to marry of the surname of Barlow, was not 
 meant to be a person taking it either by voluntary assumption or 
 under legal authority, but an individual entitled to it by birth, as in 
 the instances before alluded to. It is observable, that the only 
 persons, objects of his provision, were two distant relations, Charles 
 and Mary Barlow, whom he expressly describes as his kinsman and 
 kinswoman. Relationship was the cause of the testator's bounty, 
 and his object to divide his property among such of his relatives 
 whom he knew to stand in that character. Both the legatees bore 
 his surname by birth-right, and on the ground of being of his stock 
 or family. Under such circumstances, it is not unreasonable to 
 presume, that the Lords considered the condition imposed by the 
 testator upon his kinswoman Mary to marry a Barlow, as desig- 
 nating a Barlow of his own kin or family, and not any stranger ca- 
 priciously assuming that surname. At least, if this be a possible 
 supposition, .which might have had influence with the House of 
 Lords, it destroys the authority of the case, for the proposition (as 
 supposed by Baron Thompson in Leigh v. Leigh,(z) " that a devise 
 upon condition of marrying a man of a particular name is not satis- 
 fied by marrying a man who voluntarily changes his name." And it 
 leaves the judicious remarks of Sir Joseph Jekyll and Chief Justice 
 Abbott of the same weight and importance as if the . decree of the 
 former had not been reversed. That the judgment of the House of 
 Lords was founded upon the special circumstances before suggest- 
 ed, was so considered by Lawrence, J. in the case of Leigh v. Leigh 
 above mentioned. (a) And it is conceived that it may be correctly 
 stated as a general proposition, " that a condition to marry a person 
 of a particular name will be well performed by a voluntary assump- 
 tion of it previously to the marriage." 
 
 Indeed the case of Doe v. Yates,(b) before referred to, must be 
 
 (z) 15 Ves. 111. (a) Ibid. 107. (d) 5 Barn. & Aid. 544.
 
 SECT. II.} upon Condition. 561 
 
 considered an express decision upon the subject ; for, although the 
 condition was subsequent, and for that reason to be construed 
 strictly, yet if the arbitrary assumption of the name was illegal or 
 ineffectual, .it must have been considered as not at all taken,- and 
 then the event upon which the limitation over was to take place 
 would have happened. 
 
 In that case, Mr. Luscombe devised his real estate for the benefit 
 of his cousin, John Luscombe Manning, during his minority, and 
 when he attained twenty-one, to the use of him for life, he taking 
 and bearing the name of Luscombe i instead of his own surname; 
 remainder to the use of his first and other sons in succession, and 
 their heirs male, they taking and using the surname of Luscombe 
 instead of their own, with remainders, over. Then followed a pro- 
 viso and direction for each devisee not bearing the surname of Lus- 
 combe, so soon as they respectively should be in possession of the 
 estate, to take the surname of Luscombe, and use it instead of his 
 own; and within three years next afterwards to procure the change 
 of surname by Act of Parliament or other effectual manner, and for 
 ever in future to bear and -use the surname of Luscombe. But if 
 any of the devisees, who* should be in possession of the estate, 
 should not take and use that surname, and should neglect to get 
 the Act of Parliament, or other sufficient authority for the above 
 purpose, within three years next after being in possession of the 
 property, his interest should cease and be void, and the estate go 
 over to the person next in remainder, who should comply with the 
 condition. Manning, the devisee, while a minor, and before enter- 
 ing into possession of the estate, voluntarily assumed the surname 
 of Luscombe, and ever afterwards used and bore it; but he did not, 
 after entering into possession of the property, procure an Act of 
 Parliament or a royal license to take that surname. The question 
 was, whether the mere assumption of the surname .was a compli- 
 ance with the condition 1 ? And the Court of King's Bench was of 
 opinion in the affirmative, upon the principle, that/as the devisee 
 bore the name of Luscombe at the time he entered into possession 
 of the estate, although by mere arbitrary assumption, the condition 
 'was fulfilled, and the requisition of an Act of Parliament or other 
 legal authority, to change the old and take the new name,, only 
 applied to persons who did not bear the surname of Luscombe^t 
 the period they took possession of the property ; so that, as Mr. 
 Manning had previously assumed that surname (a voluntary as- 
 sumption being sufficient,) he was not an object within the meaning 
 of the proviso, and consequently, not bound by it. 
 
 From the preceding contents of this chapter, it appears that the 
 principle upon which the literal performance of conditions was dis- 
 pensed with, was the presumed intention of testators imposing them, 
 and not compensation as upon a forfeiture. Indeed, the doctrine of 
 equitable relief upon compensation is quite inapplicable to breaches 
 of conditions requiring marriages with consent, and a court of equity 
 has never proceeded upon such a ground. (c) It has been said, that 
 where time or place is a secondary consideration, if the thing requi- 
 red to be done is performed, though at another time or place, so as 
 
 {c} See ante, p. 515.
 
 562 Of Legacies [Cn. XIII. 
 
 that the testator's intention is fulfilled, the performance shall be deem- 
 ed a sufficient execution of the condition.(d) In order more parti- 
 cularly to illustrate these remarks, it is proposed to offer a few ex- 
 amples under the title 
 
 SECT. III. Respecting Forfeiture generally, in consequence of 
 the non-compliance with conditions. 
 
 FIRST, where a bequest is made to #. upon a precedent condition, 
 viz. if he pay to B. lOOOZ.or execute a release of all demands, with- 
 in twelve months after the testator's death ; and there is no limitation 
 over upon non-compliance, if A. pay the money or execute the re- 
 lease, although not within the twelve months, he will be entitled to 
 the legacy ; because it is considered, that payment of the money and 
 the execution of the release are the sole motives of .the testator in 
 imposing the condition, (e) and that his intention is fulfilled when 
 those acts are executed. But 
 
 SECOND.- If the Legacy had been limited over to C. in the event 
 of the lOOOZ. not being paid, or the release given within the twelve 
 months, the bequest over to G. would take place ; because the time 
 of performance was made an essential by the testator, in expressly 
 limiting over the legacy to C. r if neither of those acts were done 
 within the specific period^/) ; 
 
 THIRD. When the performance doesnot solely depend upon the 
 legatee, the Civil law does not seem consistent, in deciding when a 
 non-compliance shall and shall not be a forfeiture. (g) Possibly the 
 determination in the tribunals of this country may be as follows : If 
 a legacy be given to B. in case he marry I), the testator's daughter : 
 here the performance of the condition depends upon the proposal of 
 B. and the acceptance of D. If D. refuse B., it is apprehended, that 
 the offer and readiness of B. to marry her, will not be considered a 
 performance of the condition, because the condition being precedent, 
 B. cannot answer the description in the bequest as the person to 
 whom the gift applies.(A) Besides, the procuring of D.'s consent is 
 a contingency, which must have, been in contemplation of the tes- 
 tator; and an obligation meant to be imposed upon B., the result 
 of which was to decide whether he was to receive the legacy, or 
 not.(i) But 
 
 FOURTH. Had the condition been subsequent, as if the gift were 
 made to B. payable at twenty-five, with a proviso, incase he did not 
 marry D. before that age, the bequest should cease and be void ; 
 here the refusal of D. to marry B. is of no consequence ; for, the 
 condition being merely in terrorem, the non-compliance with it does 
 not create a forfeiture. ( k) But if the will contain a limitation over 
 of the legacy, in case he did not marry D. within the above period, 
 then it is presumed, that if the marriage do not take place, whether 
 from the neglect or the refusal of D., the limitation over will be ef- 
 fectual, for the reason before mentioned. 
 
 (rf) Et vide Swinb. pt. 4. sect. 6. art. 2. aWd ante, p. 505-6. 
 
 (e) Ante, p. 514. (/) Vide ante, p. 515. et seq. 
 (e-) Swinb. pt. 4. sect. 6. art. 2. and sect. 8. art. 16. and 17. 
 
 Hi) Ante,r>. 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 <te concurrence of the executor. 
 
 It may however be a question, whether, if a person by his will 
 forgive or release his debtor the money owing to his estate, such re- 
 lease or forgiveness will require the assent of the executor before it 
 can take effect ; but it seems that the executor's assent is necessary, 
 for the debt may be wanted to pay creditors, and" against them it 
 
 (a) Swinb. pt 1. sect 6. art. 5. Co. Litt 111. Perk, sect, 488. 570. 572. 
 JBolles v. JVyse/iam, Dy. 254. b. 2 Atk. 77. (b) 15 Ves. 579. Touchst. 455. 
 VOL. i. 4 C
 
 56f> 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. 
 
 (<r Ibid. (/) 7 Taunt 217.
 
 572 Of the Executor's Assent. [Cn. XIV. 
 
 his will, one of his co-executors being alive. The estate was claim- 
 ed by the plaintiff's deriving title under the will of the first testator, 
 in opposition to the interest of the defendant, a purchaser from the 
 lessee. The lease could not be supported under the power, and, as 
 a demise by a mere tenant for life, it determined upon his death; 
 but, as a lease by an executor, it might be supported, unless the ex- 
 ecutor Samuel had previously assented to the devise to himself. In 
 that event, the legal interest in the term in remainder after his death 
 vested in the devisees over, which entitled them to recover; since 
 the demise by the executor in the character of legatee, could only 
 continue during his life. And it was decided, first, that the power 
 of leasing was not legally executed ; secondly, that the contents of 
 the lease did not supply sufficient evidence, that the demise was made 
 by Samuel in the character of devisee for life of the term ; thirdly, 
 that SamueVs will disposing of the property did not furnish such 
 proof^ since the evidence should be of an assent to the legacy at the 
 time of making the lease, which a subsequent will could not supply ; 
 besides there was no- decision, that a devise over, by a tenant for 
 life, of that which he could not give, was evidence of his election to 
 take as devisee. (g.) And lastly, that the lease, was good as a demise 
 by Samuel in the character of executor. 
 
 From what has been said, it , appears that the doctrine of Per- 
 kins(h) upon the subject, .followed by the author of the Touch- 
 stone,(i) is not law. It is there laid down, that, 'if a term be devised 
 to one executor alone, for part of the time, and for the residue of it 
 to a stranger; and that executor alone, after entering generally, 
 occupy the land himself, and his co-executors do not intermeddle 
 with it ; there was, as it seemed, a good assent to execute the devise 
 to the person in remainder. An opinion expressly negatived by the 
 Court of Common Pleas in the before stated case of Doe v. Hayes,(k) 
 and contrary to the case immediately put in opposition by the learn- 
 ed author of the Touchstone : for, says he, if a person bequeathed 
 goods to one of his executors for life, with remainder to a stranger 
 for life, and the executor alone get the goods into his own hands and 
 occupy them alone all his life ; it seems that such occupation, 
 without some assent, will not execute the gift in the second legatee. 
 The two cases are in principle the same, and we have seen that such 
 an entry and occupation will not be sufficient evidence of the assent 
 of the executor to his own legacy .- 
 
 But that such an executor may impliedly show his assent to take 
 as a devisee is equally true. If then. a term of years be given by a 
 testator to his widow and executrix, during the minority of his eldest 
 son, to the intent that, with the profits, she bring up his children, and 
 the residue of the termj after the son attained twenty-one, was given 
 to him; the entry of the widow generally, coupled with an applica- 
 tion by her of the rents in educating the children, will amount to an 
 assent not only of the devise to herself, but of the residue of the 
 term to the eldest son.(J) 
 
 So it will be, if an executor-devisee for life of a term for years 
 
 () Contra, where the executor is devisee of the whole interest in a Term. Off. 
 Ex. in margin. (A) Sect. 574-5. (i) Touchst. 457. 
 
 (fr) 7 Taunt. 217.' (/) Plowd. 539.
 
 SECT. I.] Of the Executor's Assent. 573 
 
 enter upon the lands, explaining the act by a declaration that he 
 claimed the estate as devisee for life.(fc) 
 
 Or by applying the rents to his own private uses.(Z) 
 Or by payment of a sum of money with which the term was 
 charged by the will.(m) 
 
 For, in all these instances, the acts of executor in relation to the 
 term clearly showed that he was not dealing with it as executor but 
 as devisee. 
 
 6. Of presumptive assent to legacies. 
 
 It is the duty of executors to assent so soon as all the debts and 
 expenses attending the administration have been satisfied, and there 
 is a sufficient residue to pay all the legacies. If, nevertheless, they 
 refuse to do so, the legatees are entitled to relief in equity. It 
 seems, therefore, that an assent will be presumed in the absence of 
 evidence, when executors die after debts are paid, but before the 
 legacies are satisfied, upon the principle, that the executors acted in 
 conformity with their duty.( n) 
 
 Suppose then a mortgage term, with the money due upon it, to be 
 specifically bequeathed to B. and the debt to have been for many 
 years after the testator's death, continued on the same security ; 
 that his executors are dead, all his affairs having been wound up by 
 them, and that B. has been in receipt of the interest for several 
 years. Under those circumstances, it is conceived, that B. would 
 be presumed to have obtained the proper consent to his legacy, and 
 that he alone would be competent to give a good discharge,%and to 
 re-convey the legal estate to . the mortgagor, upon discharge of the 
 mortgage. 
 
 7. As to conditional assents. 
 
 These assents, like those to the marriages of legatees, considered 
 in the last chapter, may, as it would seem, be made dependant upon 
 a precedent conditional event connected with the administration of 
 the assets. It may be the duty of the executor to suspend his assent 
 upon a contingency ; and there appears to be po more objection to 
 his having the power of so doing, than to his power of consenting 
 conditionally to the marriages of legatees, when his assent is requir- 
 ed by the testator.(o) If then to an application for a legacy, the 
 executor answer, he will pay it, provided the assets shall appear suf- 
 ficient to satisfy all demands, after he has clearly ascertained the 
 amounts of debts and credits, or that he will assent and pay the 
 legacy if the balance of an unsettled account between the testator 
 and B. shall be found of a particular amount in favour of the estate; 
 it is presumed that these and similar conditional assents will be good 
 i. e. there will be no assent until the contingencies happen. 
 
 But when the condition is of a nature which does not relate to the 
 circumstances of the estate, and is consequently such as an execu- 
 tor has no authority to impose, it should seem that the assent would 
 be absolute, and the condition rejected, whether the condition were 
 precedent or subsequent. Thus, if the executor declared his assent 
 to the bequest, provided the legatee went to York, and there exe- 
 
 () Plowd. 516. Perk, sect, 574. Welcden v. Elkington, 3 Dyer, 358. b. 
 (/) 1 Roll. Abr. 619. . . (m) Young- v. Holmes, 1 Stra. 70. 
 
 (n) See 2 P. Will. 532. (o) Ante, p. 542. 
 
 VOL,. I. 4 D
 
 574 Of the Executor's Assent. [Cn. XIV. 
 
 cuted a particular commission for the executor's personal benefit, it 
 is presumed the assent would be absolute ; for the assent implied an 
 admission of assets, and the condition was irrelevant and improper. 
 So also, if the legacy were of goods, and the executor delivered them 
 to the legatee, upon condition to re-deliver them to him at a parti- 
 cular time, the assent would be complete and the condition void.(p) 
 
 The only question which remains is 
 
 8. Whether an executor can retract his assent after it has been 
 given. 
 
 Where assent has been completed by payment or possession of 
 the subject of bequest, retraction is too late. ' But if assent be not 
 so perfected, and its recal is not attended with injury to a third per- 
 son, as to a bonafide purchaser from the legatee on the faith of such 
 assent,(<7) it seems only Reasonable that the executor should have an 
 opportunity to retract it under particular circumstances. Suppose 
 then an executor, honestly intending to do his duty, assent lo a legacy 
 upon a reasonable ground for considering that the assets are fully 
 sufficient to answer all demands upon them, but unknown 4ebts are 
 unexpectedly claimed, which occasion a deficiency, and then the 
 executor withdraws his assent, it would be harsh to deny him the 
 privilege. With a little variation of expression, we may apply to 
 such and the like instances the judicious observations of Lord Eldon 
 on a similar subject before stated. (r) " As a general principle, it 
 would be dangerous to hold, if at a particular time (an executor) 
 upon a conscientious sense of duty, think himself required to assent, 
 which he accordingly gives, but previously to (payment) becomes 
 acquainted with circumstances which ought at first to have operated 
 to make him withhold His consent, that he shall riot afterwards alter 
 his mind." 
 
 SECT. II. Of the Payment of Legacies. 
 
 1. Out of what fund. 
 
 It is a general rule, as was noticed in the twelfth chapter,(s) that 
 the personal estate is the primary fund for the payment of legacies. 
 When the real estate is merely charged with those demands, the per- 
 sonal assets are to be applied in the first place towards their liquida- 
 tion. And when the real estate is first applicable to discharge the 
 legacies in exoneration of the personal, we have- attempted to show 
 in the chapter last referred to. 
 
 It may happen that a part of the personalty may be specifically 
 designated by the testator for the payment of a particular legacy ; 
 in which case the fund described will be applicable to the discharge 
 of the favoured legacy, in preference to other general legacies, as 
 stated in the fifth chapter, which treats of the abatement of specific 
 legacies. (t] But a question may arise 
 
 2, Whether the payments are to be made in sterling money or in 
 currency. 
 
 It seems to be settled as a general rule, founded upon the presum- 
 ed intention, that legacies are to be paid in the money of the coun- 
 try in which the testator is domiciled, and the wills are made. It 
 
 (fi) 1 Leon. 129-130. 4 Reports, 28. b. ( ? ) 1 Ch. Ca. 257. 2 Freem. 142. 
 (r) Ante, p. 542-3. () Ante, p. 463. (/) Ante, p. 255.
 
 SECT. II.] Of the Executor's Jlsstnt. 575 
 
 follows, therefore, that if a man, resident in Jamaica or Ireland, make 
 his will, -leaving legacies generally to persons in England, they will 
 be payable in Jamaica or Irish currency. If such be the rule when 
 legacies are given generally, a fortiori it must prevail when aided by 
 the testator's intention, more clearly apparent from his giving some 
 legacies in sterling or lawful money of Great Britain, and others 
 without any such description. Consequently, the latter will be pay- 
 able in the currency of the country where the testator was domiciled. 
 In the case of Sounders v. Drake,(u) Lord Hardwioke acknowledged 
 the rule, and said, " If the testator (resident in Jamaica] had given 
 all his legacies generally, they must have been paid in Jamaica mo- 
 ney, nor would the legatees living in England have made any dis- 
 tinction, for the residence of the person devising must decide it." 
 And his predecessor, Lord Macclesjield, expressed the same opinion. 
 " If (said he) a man, by will made in England, give a legacy of SO/. 
 it must be intended English money "(x) 
 
 In Saunders v. Drake,(y) the case before referred to, the testator 
 being domiciled and making his will in Jamaica, gave in the first 
 place certain legacies to be paid in sterling money, and immediately 
 afterwards two legacies, without any direction as to their payment 
 in sterling money. One of the two latter legacies was claimed in 
 English currency. And Lord Hardwicke was of opinion, as before 
 stated, that the residence of the person devising was to determine 
 the question as to the legacies given generally, and therefore the 
 legatee was to be paid in Jamaica currency; but as to the legacies 
 directed to be paid in sterling money, it was his> 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 <or sister of the father -or mother of the 
 deceased, a duty of 5iJ per cent. When the legatee .is a brother or 
 sister or a descendant of a brother er sister of the grandfather or 
 grandmother of the deteased, a duty . of 61. per cent. And whete 
 the legatee is in any other degree of collateral consanguinity, or 
 any stranger in blood to the deceased, a duty of 10Z. per cent. 
 
 The value of annuities, or legacies given in the way of annuity, 
 is computed according to the- tables 'annexed to. the statute 36 Geo. 
 3. c. 52. si. 8. and the duties are .payable on such value, according 
 to the scale .before stated, by four equal instalments; the first of 
 which shall be -made before or on completing the payment of the 
 first year's annuity, and the three other successively before or on 
 completing the three succeeding years .annuity ., . 
 
 The duty on a legacy or residue to ' be - enjoyed in succession, 
 chargeable with duties at the same rate, must be charged upon and 
 paid out of such legacy or residue, as if the' same were given to one 
 person ; but if some or one of such persons, taking in succession, 
 are charged with no duty and some with different rates of duty, 
 the duty shall be charged on the persons taking a life or other 
 temporary interest in such "bequest, in the same manner as if it 
 were given by way 'of annuity. And the .person ultimately and 
 absolutely entitled to such legacy given, in succession, shall, when 
 such person receives the same, pay the duty upon the same or so 
 much as shall be received, in the same manner as if it had come 
 to such person immediately upon the death of the testator. (m) 
 
 Legacies given subject to contingencies, defeating the same, 
 unless chargeable as annuities, are subject to the 'same duties as if 
 they were absolute. (n) 
 
 Legacies subject to a power of appointment to persons specified, 
 are chargeable with duty in the same manner ,as a legacy in suc- 
 cession. And where property is given for a limited interest, and 
 
 (A) Sect 4. (i) 55 Geo. 3. c. 184. s. 8. () 45 Ib. c. 28. s. 3. 
 
 (/) 39 Ib. c. 73. 42 Ib. c. 99. s. 4. (m) 36 Geo. 3. c. 52. s. 12. () Ib. s. i7.
 
 SECT. II.] Of the Payment of Legacies. 603 
 
 an absolute power of appointment is given to a person to whom 
 the property to be appointed would not go in default of appoint- 
 ment, the duty upon the execution of the power will be payable, in 
 the same manner as if the interest were absolutely given to the per- 
 son exercising- the power. And where the power is given to the 
 person absolutely entitled in default of execution, the duty will be 
 chargeable in the same manner on the property, as if it were abso-. 
 lutely given without any power. (o) 
 
 Money or personal estate, .directed to be laid out in the purchase 
 of real estate, must pay duty as personal estate, given in succession 
 or otherwise, according to the nature of the interest in the real 
 estate.^) Under this division of the subject, it will be proper to 
 notice some decisions made on the Acts before specified. 
 
 Real estate devised to be sold, and the produce to be deemed 
 part of the residue of the testator's estate, and to go (if necessary) 
 in aid of his personal estate in discharge of money legacies, is lia- 
 ble to the legacy duty imposed by statute -.48 . Geo. 3. c. 149, 
 although the estate be not converted into money, and the residuary 
 legatee take the property in statu quo. This was settled in Jlttor^ 
 ney General v. Holford,(q) upon the principle, that in equity the 
 subject of such a'bequest would go after the legatee's death to his 
 personal ^representatives. 
 
 It has been decided that legacies bequeathed by a British sub- 
 ject in India, out of. his personal estate to persons in England, are 
 liable to the,duty, if the executor prove th&will and pay the legacies 
 in England; notwithstanding the testator realized and possessed 
 his property in India, resided and made his will there, and although 
 the executors were in India at the time of their appointment, and 
 the will were originally proved there. This was decided in the 
 case of the Attorney General v. Cockerell.(r) 
 
 So where, upon the death of a testator domiciled in India, admi- 
 nistration with the will annexed was taken out at Madras, and 
 also by another person in Scotland, and the Scotch administrator, as 
 residuary legatee, applied to his own use the surplus which the ad- 
 ministrator in India had remitted, after ihe payment of debts, it was 
 held, that the residuary legatee in Scotland was liable to the duty, 
 because the estate was "applied there. (s) 
 
 So also, where no administration is actually taken. out, but a suit 
 instituted by the legatees against the executors abroad and his agents 
 in England, legacy duty will be payable ; because previously to such 
 a suit, administration ought to be taken out, and the administrator 
 made a party. This was decided in the late case of Logan v. Fair- 
 lie,(t) where the following distinction" was laid down by Sir John 
 Leach, V. C. "If a testator die in India, and his personal estate be 
 wholly in India, and his executor be resident there, and the will be 
 proved there, and the executor remit 'to- a legatee in England, or to 
 some other person in England for the specific use of the legatee, the 
 amount of his legacy, I am of opinion that the legacy duty is not 
 payable upon such remittance, inasmuch as the whole estate is ad- 
 
 (0.) Ib. s. 18. (/O Sec. 19. also 45. ch. 28. sect. 5. 
 
 (?) 1 Price, Excheq. Rep. 426. (r) i Price,- Exc. Rep. 165. 
 
 (*) Alt. Gen. v. Beatson, 7 ib. 560. (fj 2'Sim. 8c Stu. 284.
 
 604 Of the Payment of Legacies. [Cn. XIV. 
 
 ministered in India, and the remittance is in respect of a demand, 
 which is to be considered as established there. But if a part of the 
 assets of the testator is found in England, in the hands of the agent 
 of such executor, without any specific appropriation, and a legatee 
 in England institute a suit here for the payment of his legacy out of 
 such unappropriated assets, then, such assets are to be .considered 
 as administered in England, arid the legacy duty is payable in re- 
 spect of them. 
 
 But where the testator died in /ra?ia,.and the property was admi- 
 nistered by executors there, who specifically appropriated in India 
 securities sums for the satisfaction of legacies* and remitted the divi- 
 dends to England for the benefit of a legatee, for whom a guardian 
 was appointed by the Court of Chancery, it was held no duty attached 
 upon such remittances. (u) 
 
 A legacy given by a will before the 5th of April 1805, but not 
 paid, retained, satisfied, or discharged, is subject to the duty im- 
 posed by the 48 JGeo. 3. c. 149. sect. 3. A legacy was given in 
 1771 to a legatee for life, and after his death to his children; in 
 1794 the executors invested it in their own names, and the interest 
 was duly paid to the legatee for his use until 18.12, when he- died; 
 and it was decided that the legacies to .the children were subject to 
 the duty of Si. per cent., notwithstanding the investment by the 
 executors. (#) 
 
 But in a case where 3QOOZ. was given to trustees to invest it and 
 pay the interest to A. for life, and after his death to transfer it to B. 
 and under a decree the legady was paid into Court and invested, 
 previously to the duty imposed" by 20 Geq. 3. c. 28..; B. being then 
 an infant, it was hejd that it was a sufficient appropriation of the. 
 legacy within the words of stat. 48 Geo. 3. c. 149. "paid, retained, 
 satisfied, and discharged'," before the 10th of October ISQS.(y) 
 
 Where one. legacy is given by will, free of duty, arid by a codicil 
 another is^given in substitution of that given by the will, and upon 
 the same trusts, the substituted legacy is also free from the duty 
 which must be paid by the testator's effects.' 
 
 This wafe settled in the case of Cooper v. Day^z) where the tes- 
 tator gave 40QOZ. to trustees, v irr trust for his daughter?, and directed 
 the legacy duty,thereon to be paid out of the residue. By a codicil 
 he revoked the gift of 4000Z. and gavt 5000^. upon the same trusts, 
 &c. as were expressed by the will concerning the legacy of 4000Z. ; 
 then by second codicil he revoked the' gift of uOOOi. and gave 6000Z. 
 upon the same trusts; and It was held that this was not a revocation, 
 but a substitution in each instance, and therefore that the 6000/, was 
 exempt from the legacy duty; '. . 
 
 So also, where a testator bequeaths a legacy, declaring that 'it 
 should be exempted from duty, and. afterwards bequeaths a subse- 
 quent legacy.either by'his 5 will of -by a codicil, " in addition" to the 
 former legacy, it should seem the v additional legacy would be subject 
 to the incidents and conditions of the former, and consequently be, 
 like it, free from the legacy duty, (a) . 
 
 ' (M) Hay v. Fairlie, \ Russ. 117. -(x} Alt. Gen. v. Lady Manners, 1 Price, 411. 
 (yYHiilv. Atkinson, 2 Mer. 45. A'. C. 3Pri. 399. (z) 3 Mer. 154. ante, 587, 
 (a) Chtttttru v. Young, 6 Mad. SO,
 
 SECT. II.] Of the. Payment of Legacies. 005 
 
 So where a legacy is given "without deduction" the legatee will 
 not be chargeable with the duty, but the executor must pay it o.ut 
 of the testator's assets. (6) 
 
 B. We next proceed to consider, by whom the duties are to be 
 paid and retained. 
 
 The Act of 36 Geo. 3. c. 52, enacts, that the duties, in all cases 
 wherein it is not otherwise thereby provided for,(c) must be paid by 
 the executor or administrator, upon retainer for their own benefit, or 
 for the benefit of any other persons, of any legacy or part of legacy, 
 or of the residue or any part of such residue, which they shall be en- 
 titled so to retain ; and also upon delivery, payment, or discharge of 
 any legacy or residue, &/C. to which any other person shall be enti- 
 tled ; and in case such executor or administrator shall so retain such 
 legacy or residue, &c. upon which duty is thereby chargeable, not 
 having first paid the duty, or shall deliver, pay, or discharge any le- 
 gacy or residue, &,c. to which any other person shall be entitled, 
 having received or deducted the duty, then the duty chargeable on 
 every such legacy, &c. which shall not have been paid, shall be a 
 debt from such executor or administrator to the King ; and in case 
 they shall have paid the legacy or residue without having received 
 or deducted the duty, then it shall be a debt due to the King, both 
 from them and also from the persons to whom the legacy or residue 
 shall have been paid. 
 
 The duty charged on an annuity, or on a legacy by way of annuity, 
 is calculated according to the Tables, of the Act,(rf) and must be 
 paid by the persons entitled to the same, and deducted by four suc- 
 cessive instalments out of the four first years, annuity. 
 
 The duty on a legacy or residue to be enjoyed by different per- 
 sons in succession on whom the duty is chargeable at one and the 
 same rate, shall be deducted and paid by the executor or adminis- 
 trator on payment of every or any part of the legacy or residue to 
 any trustee or other person to whom the same shall be payable ; and 
 where the legacy or residue shall not be paid to a trustee, the duty 
 shall be deducted out of the capital of the property so given, on re- 
 ceipt by any of the persons so entitled in succession, of any produce 
 of such capital, according to the amount of the capital of which such 
 produce shall be so received ; and where the duty shall be chargea- 
 ble at different rates, so that the same cannot be paid at once but in 
 succession, then the executor or administrator shall be chargeable 
 with such duties in succession, in the same manner as such persons 
 would be chargeable in case of immediate bequest ; unless where 
 the property bequeathed shall have been paid to or vested in any 
 such trustees ; in which case, the trustees or their representatives 
 shall be chargeable with the duties in the same manner as if they 
 were executors or administrators of the will in which the bequest was 
 contained ; and where any partial interest shall be given or shall 
 arise out of any such property so, to be enjoyed in succession, and 
 such partial interest shall be satisfied by the person so enjoying such 
 property, such person shall be chargeable with the duties in respect 
 of such partial interest, and pay and retain the same accordingly, as 
 
 (6) Barksdalf v. Gilliat, 1 Swanst. 562. 
 
 (c) 36 Geo. 3. c. 52. s. 6. (d) Ib. sect. 8. 
 
 VOL. i. 4 H 

 
 606 Of the Payment of Legacies. [Cn. XIV. 
 
 if he were executor or administrator of the will, and the persons so 
 chargeable with duty shall be debtors to the King, and subject to 
 the same penalties as if they were executors. (e) 
 
 Respecting the valuation of specific legacies see-36 Geo. 3. c. 52, 
 sect. 22. 
 
 The executors and other persons chargeable with duties are not 
 only authorized to deduct the duties, but also any expenses occa- 
 sioned by the refusal of the legatees to allow such deduction. By 
 the twenty-fourth section it is enacted, that if the persons taking 
 upon themselves the execution of the will or administration of the 
 effects of the deceased, or any other person by the Act made chargea- 
 ble with duty, shall declare themselves willing, and offer to pay any 
 pecuniary legacy or residue, &c deducting the duty payable- there- 
 on, or offer to deliver or otherwise dispose of any specific legacy or 
 property, part of any residue or personal estate, to or for the benefit 
 of the persons entitled thereto, or to any trustees for such persons, 
 upon payment of the duty, and the persons entitled to such legacy, 
 &c. or the trustees for such persons, shall refuse to accept such offer, 
 and to give a proper discharge for such legacy, &c. Or so much as 
 shall be offered to be paid or otherwise disposed of, then, although 
 no actual tender shall be made, if any suit shall be afterwards insti- 
 tuted for such legacy or effects, respecting which such offer has been 
 made the Court in which such suit shall be instituted shall order all 
 the costs and expenses attending the same to be paid by the person 
 so refusing, &c. and shall order such costs, &c. to be deducted and 
 retained out of such legacy and effects, together with the duty paya- 
 ble thereon, as the Court shall see fit, &c. 
 
 C. With respect to the tirrie, at which such deductions and pay- 
 ments are to be made. 
 
 The executors/ administrators, or, other persons chargeable with 
 the legacy duty are subjected to penalties if they pay or deliver the 
 legacy, residue, or other property charged with duty, to the persons 
 entitled, without a receipt in Writing duly signed by the legatee, and 
 stamped according to the specifications of the Acts ; and no receipt 
 will be available unless stamped ;(/) and for the penalties see the 
 Act.(g). 
 
 The receipt must be dated on the day of the signing, and if the 
 duty be not paid by the executor, administrator, or other person 
 chargeable therewith, within twenty-one days after the date of the 
 receipt, a penalty is incurred of 1QL per cent, on the amount of the 
 duty ; and, if not stamped within three calendar months, a further 
 penalty of 101. per cent, on the amount or value of the legacy, resi- 
 due, annuity, or other property chargeable with the duty.(^) 
 
 The receipts, however, may be stamped at the expiration of the 
 three months, to make them available upon payment of the penal- 
 ties. (i) 
 
 The Acts do not specify any time at which the executor or ad- 
 ministrator must render his final or residuary account at the Stamp 
 Office ; for the obvious reason, that the peculiar circumstances of 
 the property of the deceased would, in very many cases, preclude 
 
 (?) 36 Geo. 3. c. 52. s. 13. (/) 36 Geo. 3. c. 52. s. 27. (e-) Ib. sect. 28. 
 (A) Ib. and sect 29. (j) 48 Geo. 3. c. 149. s. 44.
 
 SECT. II.] Of the Payment of Legacies. 607 
 
 the possibility of complying with any such restriction. But it be- 
 comes the interest of the persons entitled to the residue, to expedite 
 the final settlement of the account, since the duty must be paid on 
 the accruing profits and income of the effects of the deceased, from 
 the time of his death to that of delivering the account and offering 
 to pay the duty at the Stamp Office. 
 
 This point was settled in the case of the Attorney General v. Ca- 
 vendish,(k) in that case Lord F. Cavendish died in October, 1803, 
 and on the 20th of July, 1SOS, the defendant, as executor and resi- 
 duary legatee, delivered in his residuary account of the testator's 
 personal estate intended to be retained by him, and offered to pay 
 the duty on the residuary estate, exclusive of the interest which had 
 accrued since the testator's decease, 324Z. less than it would have 
 been had the duty been computed on the interest accrued. And it 
 was decided, that the duty was payable on the interest accrued from 
 the death up to the time of the delivering of the account. 
 
 It remains to offer a few observations on the subject of retainer 
 under the Stamp Acts. And, 
 
 First, Where the executor or administrator retains a legacy or re- 
 sidue, &c. under the said Acts-for his own benefit. 
 
 The statute,(/) so often referred to, enacts, that where the execu- 
 tor or administrator is entitled to any legacy, or to the whole or any 
 part of the residue, he shall be chargeable, whenever in the due 
 course of administration he shall be entitled to retain to his own use 
 any part of the personal estate of the deceased, in satisfaction or dis- 
 charge of his legacy, &c. and before such retainer, shall transmit to 
 the Stamp Office a note containing particulars of such legacy, &c. 
 so to be retained ; and in case he shall neglect to pay the duty as- 
 sessed by the commissioners, within fourteen days after the same 
 ought to be paid, under the provisions of the Act, he shall forfeit 
 treble the amount of the duty. 
 
 Secondly, Where the executor or administrator retains for the be- 
 fit of another. 
 
 W^hen the duty can, consistently with the enactments of the seve- 
 ral Acts, and particularly of that last mentioned, be ascertained and 
 paid by the executor or administrator, it is usual and proper to pay 
 it when the legacy is retained, although the time of payment to the 
 legatee has not arrived. And indeed the sixth section of the 36th 
 of Geo. 3. seems to contemplate such retainer ; and the executor, 
 it should seem, is liable to be called upon for it, since, from the time 
 of retainer it becomes a debt to^the Crown', although no penalties 
 seem to accrue until after payment of the legacy to the legatee. 
 
 If, for instance, a legacy of 1000/. is given to the executor upon 
 trust to pay it to rf. at twenty-one ; the executor, upon delivery of 
 his final account, may, it should appear, pay the duty at that time, 
 or he may retain it, and account for it as retained : If he pay it then, 
 of course, all the accruing interest would from that time belong to 
 the legatee, and no more duty would be payable ; but if he retain it, 
 and no duty is paid until Jl. attains twenty-one, the duty must be 
 paid on the interest accrued from the death of the testator to the 
 time of payment ;(m) and no penalties would be incurred unless the 
 
 () 1 Wighw. Rep. 82. (0 36 Geo. 3. c. 52. sect. 35, 
 
 (m) Upon the 'principle of Att. General v. Cavendish, 1 Wi%hw. 82. above.
 
 608 Of the Payment of Legacies. [Cn. XIV. 
 
 executor, after payment of the legacy, neglected paying the duty 
 within the time prescribed by the Acts, 
 
 Jn the case last supposed, it is at the option of the executor to 
 pay the legacy into the Bank with the privity of the Accountant 
 General, according to the provision of the statute. (n) 
 
 In cases where the duty cannot, according to the terms of the 
 Acts, be paid upon the delivery of the executors or administrators 
 final account at the Stamp Office, exceptions are made in the ge- 
 neral statement, in that account of the legacies retained; and the 
 duties must in such case, be paid when the period arrives at which, 
 according to the Acts, the duty is payable. The penalties, how- 
 ever, do not accrue until after payment to the legatee. 
 
 By way of illustration, let us suppose a legacy given to or upon 
 trust for A. testator's sister, for life, after her death to B. testator's 
 child, for life; and after the death of A. and B. to C. 4 stranger, 
 absolutely ; and A. B. and C. are infants, and the legacies directed 
 not to be paid until twenty-one. In this case, the duty payable at 
 different rates must, according to the Act, be paid by J2;.and B. as 
 if the interest of each were' an annuity, by four -instalments ; and 
 upon that of C. when he comes into possessipn*. 
 
 The executor, upon .making up his final account cannot, or ad- 
 mitting that the duty might be then computed, he is riot obliged, 
 then to pay the duty on the legacy, but only to account for it as 
 retained. When A. attains twenty one, the duty must be paid on 
 his life interest by four instalments, according to the Act; and after 
 his death, by B. in like manner; and after the death of A. and B. 
 by C. within the period prescribed by the Acts, after the receipt of 
 the principal. 
 
 We proceed to consider, 
 
 7. Retainer by executors or administrators generally. 
 
 Where a person entitled to a legacy is indebted to the testator, 
 the executors may retain such legacy, either in part or full satisfac- 
 tion of the debt, by way of set-off. 
 
 Thus in Jeffs v. Wood,(o) Jeff's by his will gave 500Z. to his 
 nephew Wood the defendant; and appointed the plaintiff, his son, 
 executor and residuary legatee. Wood sued "the plaintiff in the 
 Spiritual Court, for his legacy, and the plaintiff filed his bill against 
 Wood the defendant, and, after the bankruptcy of Wood, against 
 his assignees, claiming an allowance out of the legacy for monies 
 which the bankrupt legatee owed to the testator, and likewise to 
 the plaintiff the executor. It was determined b^ Sir Joseph Jekyll, 
 M. R. that the assignees were only entitled to so much of the le- 
 gacy as remained, after deducting what was due to the testator, and 
 to the executor. 
 
 In the recent case of Ranking \. Barnard, and others,(/>) 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 <S. Cooper 4000Z. with 
 interest at 31. per cent., and the surplus interest to her, the executrix. 
 The legatee afterwards intermarried with the co-plaintiff Cooper, 
 and the stock turning out not equal in value to the 4000?., they filed 
 the bill, stating the marriage and a settlement previous to it, and 
 that the stock purchased was not equal in value to the legacy, and 
 praying that Gibbons, the husband of the executrix, who was then 
 dead, might pay to the trustees in the settlement, the difference be- 
 tween the present value of the stock purchased, and the 40001. lega- 
 cy. The question was, whether the laying out the money in -the 
 funds and conveying the same to trustees for the benefit of the lega- 
 tee, was a valid appropriation, binding upon the plaintiffs 9 And it 
 was decreed, that the stock purchased should be transferred to the 
 Accountant General, in trust, in the cause, in part satisfaction of the 
 legacy of 4000Z. ; and it was referred to the Master to take an ac- 
 count what would remain due to the plaintiffs after such transfer, for 
 principal and interest of the said legacy. The Master made a re- 
 port, and the cause stood over, in order that it might be re-heard on 
 the point of the validity of the appropriation. The Lord Chancellor 
 
 (a) 2 Brown, C. C. 232.
 
 SECT. III.] Of the Appropriation of Legacies. 617 
 
 (Thurloiv) said, The question was, whether the legacy had been 
 taken out of the testator's property 1 The uses declared by the 
 deed had been expressly to pay the legatee 4000/. with interest at 
 31. per cent., and to pay the residue of the interest to the executrix. 
 If a legatee had the legacy anticipated, he must stand or fall by it; 
 but then he must have the whole sum. When the Court appropria- 
 ted a legacy, it ordered a sum equal to the legacy to be laid out ; 
 but he (Lord Thurloiv) did not remember any case, in which the 
 Court had done so, and given any part of the intermediate interest to 
 another person. The executrix could not take the surplus interest. 
 The money must remain in Court, subject to the application of the 
 parties, and it must be referred to the Master, to inquire into the 
 settlement, and to whom it should belaid. 
 
 In Hutcheson v. Hammond,(t] Frances Hutcheson, in exercise of 
 a power reserved to her in her marriage settlement, by her will ap- 
 pointed trustees to sell certain estates, and after certain deductions, 
 to lay out the residue of the money in the funds, and to permit her 
 husband William Hutcheson to receive the interest for his life, and 
 after his death to pay to the plaintiff, Ann Jones, in certain events 
 (.which happened) three sums of 1500Z., 1500J. and 500L; and she 
 appointed her husband, William Hutcheson, executor and residuary 
 legatee. By a codicil, the testatrix declared, that if Ann Jones 
 should marry in the lifetime of William Hutcheson, without his con- 
 sent, then the three sums, should go according to the appointment 
 of William Hutcheson. After the testatrix's death,, the trustees sold 
 the estate for 6500Z. and after certain deductions, a residue of 
 6252J. 6s. 2d. remained in their hands. They invested 2695/. in 
 the purchase of 4900i. three per cents, but kept back 3500L, to be 
 invested, to answer the amount of the legacies given to Ann Jones, 
 subject to her father's life interest, in case they should be justified 
 in so 1 doing. The plaintiff, William Hutcheson, made several appli- 
 cations to Peter Hammond, the acting trustee, to invest the 3500Z. in 
 the funds ; and the result was, that it was laid out in the purchase of 
 6400?. three per cents, of which notice was given by Hammond to 
 Hutcheson, but not any declaration of the trusts was made. The 
 plaintiffs, P. Jones and Ann Jones intermarried, she having first duly 
 obtained in writing the consent of her father. By settlement made 
 prior to the marriage, it was agreed, that their proportionable share 
 of the stock should be assigned to trustees, to the uses of the mar- 
 riage. The bill, among other things, prayed it to be declared, that 
 the trustees of the marriage settlement of P. Jones and Ann his wife, 
 were entitled to the three per cent, annuities, purchased with the 
 3500Z. upon the trusts of such settlement, and that the stock might 
 be transferred to them. Judge Buller stated the question to be, first, 
 whether the sum could have been appropriated by the trustees 9 
 And if so, secondly, whether what had been done amounted to an 
 appropriation ? And thirdly, if it could be then paid to the trustees 
 of Ann Jones's settlement? And he decided that, even in contingent 
 interests, any person interested might come and have the fund ap- 
 propriated ; and that if the Court would have appropriated the fund, 
 the trustees were justified in doing it, without its intervention ; and 
 
 (0 3 Bro. C. C. 128. 144.
 
 618 Of the Appropriation of Legacies. [Cn. XIV. 
 
 that, in that case, the trustees had made the appropriation; and that 
 it might then be paid to the trustees of Jinn Jones's settlement, with 
 the consent of the father. The cause was re-heard before Lord 
 Thurlmv, who affirmed the decree. 
 
 In the case of Hancom v. Allen,(u} the bill was, to have some trust 
 money laid out pursuant to the trusts of a deed bearing date 1740. 
 The trust money had been laid out by the trustees, in the funds, 
 which sunk in .their value, without any mala fides; but the same not 
 being laid out in the funds in which the Court directs trust money to 
 be laid out, the trustees were ordered to account for the principal, 
 and to pay it into the Bank, and then that it should be laid out in 
 Bank three per cent, annuities. 
 
 In the last case, that of Trajford v. Boehm,(w) before Lord Hard- 
 wicke, was cited ; in which a trustee laid out trust money in the 
 South Sea annuities, which afterwards sunk in their value. It was 
 considered as a departure from the trust, and the Lord Chancellor 
 ordered the deficiency to be made up ; and as to the manner of 
 making it good, he observed, that it must first come out of the estate 
 of a cestui que trust, who consented to the investment; the rule of 
 the Court being, that if a trustee err in the management of the trust, 
 and is guilty of a breach, yet if he goes out of the trust with the ap- 
 probation of cestui que trust, it must be made good first out of the 
 estate of the person who consented to it. See also the case of Jldie 
 v. Fennilitteau, in note to the last case. (a:) 
 
 In Peat v. Crane,(y] before Lord Thurlow, C. the trustee laid out 
 trust money in three per cents., the fund the Court adopts with a 
 view to benefit the trust, so that it might not lie unproductive. The 
 three per cents, afterwards sunk in their price ; the trustee claimed 
 an allowance for what he had so laid out. His Lordship at first 
 doubted as to making the allowance, but after consideration, was clear 
 he was entitled to an allowance, according to the price at which 
 the annuities were purchased. (z] 
 
 As to the effect of appropriation upon the fund itself. 
 
 When the appropriation is once duly made, whether by the direc- 
 tion of the Court or by the executors or trustees in pais, according 
 to the rules of the Court, the rule appears to be, that the legatees 
 entitled to the legacy for which the appropriation was made, must 
 take it subject to its chances of fluctuation. For example, in the 
 case of Burgess v. Robinson,(a) the facts of which are before 
 stated, (6) the testator gave three legacies of 200Z. each to his three 
 nephews, in the event of their claiming them within three years, in 
 the manner therein specified; and in the event of their not making 
 such claim, he directed that 500Z. part of the said three legacies 
 should sink into the residue of his personal estate ; and he gave the 
 residue to his wife the plaintiff, and appointed the defendants execu- 
 tors of his will. When the case came on for further directions, it 
 was decreed, that the 500Z. should be raised out of the estate, with 
 
 () 2 Dickens, 498. (w) 3 Atk. 440. 
 
 (.r) Reported in 1 Cox. 24. as Adye v. Feuilleteau. 
 (y) Note by Dickens to the case of Hancom v. Alien. 
 
 (z) And see franklin v. Frith, 3 Bro. C. C. 434. 1 Cox, 24. 3 Dow. 128. Howe 
 v. Lord Dartmouth, 7 Ves. 151. Holland v. Hughes, 16 Ves. 114 
 (a) 3 Mer. 7. (A) p. 515.
 
 SECT. III.] Of the Appropriation of Legacies. 619 
 
 interest at 41. per cent, from the end of three years after the death 
 of the testator. It afterwards appearing that the 5001. had already 
 been paid into Court, and laid out in the purchase of stock, in pur- 
 suance of an order made on the motion of the defendant, the cause 
 was again spoke to, on the minutes. The plaintiff claimed to be 
 entitled to the stock and the dividends which had accrued thereon, 
 and likewise to interest at 41. per cent, upon the principal sum of 
 5001. from the expiration of'three years after the testator's death to 
 the time of the investment ; the defendant, on the other side, repre- 
 senting that as the money had been so paid in and invested upon 
 his application, the plaintiff not having appeared or consented there- 
 to, he (the defendant) would have been liable to make good the 
 principal sum, in case of loss by the fall of stock, and ought there- 
 fore to be held entitled to the advantage which had accrued from 
 their rise subsequent to the investment ; insisting, consequently, that 
 the stock ought to be sold, and that, out of the produce thereof, to- 
 gether with the dividends accrued due thereon, the plaintiff should 
 be paid the 5001. with interest as aforesaid. But Sir William Grant 
 held, that the investment of the money was an appropriation, by 
 which all parties were bound, and therefore that the stock belonged 
 to the plaintiff.(c) 
 
 The recent case of Davies v. fVattier(d) may be here noticed, 
 which at first sight might appear at variance with the rule last stated ; 
 but it was decided upon the general construction of the will. John 
 Beard, by his will, gave his wife Lydia Beard, 2001. a year for her 
 life, and bequeathed the residue of his personal estate to the defen- 
 dants Wattier, Goldicutt, and Thomson, to invest it in the funds, and 
 pay thereout, in the first place, the annuity to his wife ; and he direct- 
 ed them to divide the residue of the dividends equally among his 
 nephews and nieces living at his death, and after his wife's death to 
 transfer the principal to such of his nephews and nieces as should be 
 then living; and he appointed the defendants his executors. By a de- 
 cree made at the hearing, the executors were ordered to transfer 
 4000Z. navy five per cent, annuities, and 53001. three per cent. Bank 
 annuities, unto the name of the Accountant General, in trust, &c. ; 
 and out of the dividends to pay the annuity of 2001. from time to time 
 to the widow. The funds were transferred accordingly. On the hear- 
 ing for further directions, the interests of some of the other parties to 
 the suit were declared in a sum of 43491. 14s. 8d. Bank three per 
 cents, standing in the Accountant General's name, which appears to 
 have been the residue of the 53QO/. Bank three per cents, after costs 
 had been deducted ; and the dividends of the sum of 4849Z. 15*. 8d. 
 Bank three per cents were directed to be paid to them accordingly. 
 By the 3 Geo. 4. c. 9. the navy five per cents were converted into new 
 four per cents, and the sum of 40001. navy five per cents was converted 
 into 42001. new four per cents. The dividends thus being insufficient 
 to meet the annuity, Mrs. Beard petitioned that the deficiency might 
 from time to time be made up out of the dividends of the sum then 
 in the three per cents ; the petition was opposed, on the ground, that 
 the sum of 40001. five per cents being appropriated with Mrs. Beard's 
 
 (c) See also Green v. Pigot, 1 Bro. C. C. 105. Rock v. ffardman, 4 Madd. 253. 
 
 (d) 1 Sim. & Stu. 463,
 
 620 Mashalling of .Assets. [Cn. XV. 
 
 consent for securing her annuity, she must abide by the loss occa- 
 sioned by the conversion into four per cents. Sir John Leach, V. C. 
 said, that the appropriation of the 4000L five per cents was not the 
 act of the petitioner, but was the act of the Court, and that as the 
 annuity was a charge upon the whole of the residue, the petitioner 
 was entitled to have the deficiency, which had been occasioned by 
 the conversion of the stock, supplied out of the other funds in the 
 cause. 
 
 The Reader will observe, that the nephews and nieces were by 
 the will entitled only to the residue of the produce of the testator's 
 personal estate, afterpayment of the annuity ; and upon this ground 
 the decree in favour of the annuitant was made. 
 
 But where an investment in the funds is directed of a -legacy, and 
 the trustee, after retainer or receipt of the legacy, fails to invest the 
 legacy in stock, he must suffer for his neglect ; and in case of in- 
 crease in the value of the funds in which the legacy is to be invest- 
 ed, he must nevertheless purchase so muqh stock as the legacy 
 would have produced at the period of retainer or payment. 
 
 Thus in the case of Byrchall v. Bradford,(e) an executor was 
 constituted a trustee as to a legacy of 120UZ. He accounted for the 
 residuary estate, and retained the amount of the legacy. The will 
 directed it to be invested in the funds; and the question in the 
 cause was, whether the cestui que trust of the legacy were now en- 
 titled to claim against the executor as much stock as the 1200L 
 would have produced, if invested at the time of the settlement with 
 the residuary legatee. 
 
 The stocks had risen in the meantime, and the executor had 
 never invested the legacy. 
 
 Sir John Leach, V. C. observed; " Generally speaking, this Court 
 does not enter into the consideration whether the executor could or 
 not at an earlier period have invested a stock legacy, but directs it 
 to.be invested by its decree. But in the particular case, this ex- 
 ecutor was in the situation of another trustee, to whom a legacy is 
 paid upon trust to invest it. His retainer, after accounting for the 
 residuary estate, is equivalent to the payment of another trustee. 
 If the eestui que trust sustained a loss by the trustee neglecting his 
 duty to invest, he has a right to charge the trustee with the loss." 
 
 In this case, however, it was suggested, that the cestui que trusts, 
 who were all of age, had consented to the delay of investment, and 
 Sir John Leach, V. C. directed an inquiry as to that fact. 
 
 CHAPTER XV. 
 
 Of marshalling Assets in favour of Legatees. 
 
 WHERE a person dies, leaving assets subject to various claims, it 
 is an object of equitable jurisdiction to make such an arrangement 
 in the distribution of those assets, consistently with the nature of 
 the respective claims, as shall best satisfy the just demands of all 
 claimants : consequently it has been a rule of the courts of equity, 
 in the exercise of this jurisdiction, that where one claimant has more 
 
 0?) 6 Mad. 13.
 
 SECT. 1.] Marshalling of Assets. 621 
 
 than one fund to resort to, and another claimant only one, the for- 
 mer claimant shall resort to that fund upon which the latter has not 
 any lien. (a) Consistently with this rule, it is settled, that where a 
 specialty creditor, whose debt is a lien on the real assets, receives 
 satisfaction out of the personal assets, a simple contract creditor 
 shall stand in the place of the specialty creditor, against the real 
 assets in satisfaction of his debt. (6) A similar exercise of jurisdic- 
 tion is extended to legatees ; but before they can claim the advan- 
 tages resulting from this equitable administration, certain prelimi- 
 naries are requisite : The real estate must be charged with debts, 
 or with the payment of one or more legacies ; or, where there is not 
 any such charge, the creditor must have a specific lien upon the 
 estate ; or if there be not any such charge or specific lien, yet where 
 the real estate descends to the heir, the legatees will be permitted 
 to throw the general bond debts, which are only a general lien, upon 
 the realty, in exoneration of the personal estate. But where the real 
 estate does not descend to the heir, but is devised, the rule is other- 
 wise. In administering this equity, certain other subordinate rules 
 are adopted by the Court, which it is here unncessary to antici- 
 pate. It is therefore proposed to discuss the doctrine of marshall- 
 ing Assets, so far as it respects Legacies, under the following heads: 
 
 SECT. I. The marshalling of assets in favour of legatees. 
 
 1. Where the real estate is devised subject to payment of 
 
 debts. 
 
 2. When subject to a charge of one or more legacies. 
 3. When charged with both debts and legacies. 
 
 SECT. II. The marshalling of assets in favour of legatees, where 
 the real estate is not charged by the will with debts 
 or legacies, but there is a specific lien on the real esr 
 tate. And 
 
 1. Where that real is devised. 
 2. Where it descends. 
 
 SECT. III. The marshalling of assets in favour of legatees, where 
 the real estate is neither charged with debts nor le- 
 gacies, nor subject to a specific lien, but there is 
 merely a general lien on the real estate, which de- 
 scends to the heir. 
 
 SECT. IV. Exception, where the estate is devised ; for where 
 the real estate is neither charged with debts nor lega- 
 cies, nor subject to a specific lien, but there is only a 
 general lien, and the real estate is specifically devised 
 to a stranger or to the heir taking as a devisee, assets 
 are not marshalled in favour of a general legatee ; but 
 the rule appears otherwise in favour of a specific 
 legatee, s. q. 
 
 (a) Lanoy v. Duke of Athol, 2 Atk. 446. 
 
 (A) Galtonv, Hancock, 2 ib. 436. Lacamv. Mcrtins, 1 Ves. sen. 512. 
 VOL. I. 4 K
 
 622 Marshalling of Assets. [Cn. XV. 
 
 SECT. V. The extent to which equity will permit legatees to 
 
 stand in the place of specialty creditors. 
 SECT. VI. The consideration of those legatees for whom a Court 
 
 of Equity will not marshal assets. 
 1 . Where the legatees, at the time of their legacies becoming 
 
 due, have not an established claim, &c. 
 2. Where the legacies are given to charities. 
 3. The rule respecting contribution between charities and 
 the next of kin, where the residue is given to cha- 
 rities, and part of the disposition, being within the 
 Statute of Mortmain, fails for the benefit of the next 
 of kin. 
 
 SECT, VII. The mode in which equitable assets are distributed 
 among legatees. 
 
 SECT. I. Assets marshalled in favour of legatees. 
 
 1st. Where the real estate is charged with the payment of debts, 
 In the case of Foster v. Cook,{c) Henry Cook being seised and 
 possessed of freehold lands, leasehold and other personal estates, de- 
 vised them to trustees, to pay an annuity to his wife during 1 widow- 
 hood, and subject thereto, to and for the benefit of the child with 
 which his wife was then pregnant (and which was afterwards still- 
 born,) with remainder to his five cousins by name, in fee, if such child 
 died without leaving issue. The testator, among other legacies, gave 
 the plaintiff Foster lOOl. and directed his trustees to possess them- 
 selves of all his estates and substance, and improve the same for the 
 benefit of his said child, and to pay all his just debts, &c. The tes- 
 tator made a codicil to his will, and gave to his wife 2Ql. and ano- 
 ther legacy ; and in case of any overplus, after payment of all his 
 just debts and legacies out of his stock and personal estates, he or- 
 dered it to be divided into two parts, and gave one moiety to his 
 wife, and the other to the plaintiffs, over and above their legacies. 
 The trustees filed the bill, praying, among other things, an account 
 of the personal estate, and in case it should be insufficient to pay 
 funeral expenses, debts, and legacies, that a sufficient sum might 
 be raised out of the real estates to make good the deficiency. To 
 this it was objected, that with respect to the charge of debts, there 
 was not sufficient, in this case, to make a charge upon the real es- 
 tate ; it was only a discretionary power to raise out qf the personal- 
 ty sufficient to pay the 'debts ; the testator clearly meant the person- 
 alty only to be liable ; that there was no case, where the real estate 
 had been devised, in which the Court had marshalled the assets. 
 Lord Thurlow, C., observed, " With respect to the charge for pay- 
 ment of debts, he (the testator) directed the trustees to possess them- 
 selves of all his estate and substance, to pay debts; it is a most di- 
 rect charge, and the legatees must come upon the real estate, so far 
 as the personalty has been applied in payment of debts." 
 
 In the case of Bradford v. Foley,(d) Tempest Hay, after directing 
 all his debts and funeral expenses to be paid, devised all his real 
 
 (c) 3Bro. C. C. 347. (d) 3 Bro.C. C. 351. note.
 
 SECT. I.] Marshalling of Assets. 623 
 
 estates to trustees, to the use of his son for life, remainder to his 
 first and other sons by any future marriage in tail male, with several 
 remainders over. The testator, after giving divers legacies, directed 
 the residue of his personal estate to be laid out in Government se- 
 curities, in the names of his executors, to be settled and applied to 
 the same uses as his real estates. By the decree upon the hearing 
 of the case, the will was established; and it was, among other 
 things, ordered, that the personal estate of the testator should be 
 applied in payment of his debts, funeral expenses, and legacies, in 
 a course of administration ; and in case the personal estate should 
 not be sufficient to pay his debts, funeral expenses, and legacies, it 
 was declared that the real estate was subjected by the will to the 
 amount of the debts and funeral expenses ; that the whole or a suf- 
 ficient part of the real estate should be sold, and the money applied 
 in making good the deficiencies ; and in case any of the creditors 
 had received any thing out of the personal estate towards satisfaction 
 of their demands, then they were not to receive any part of the 
 money arising from the sale, till the other creditors were paid up 
 equal with them. The estate had been sold, and the personal estate 
 not being sufficient for payment of debts and legacies, they were 
 ordered to be paid out of the money produced by the sale of the 
 real estate. (e) 
 
 In the case of Webster v. JLlsop,(f] John Taylor, by his will, di- 
 rected all his just debts and funeral expenses to be paid out of his 
 personal estate ; and if his personal estate should not be sufficient, 
 he charged his real estate with so much .thereof as his personal es- 
 tate would not extend to pay ; and then devised his real estates to 
 trustees, subject to annuities and' other payments, to the use of the 
 plaintiff for life, with the remainders over j and he gave several le- 
 gacies. The personal estate proving deficient, it was declared that 
 the legatees were entitled to stand in the place of the creditors, for 
 so much of the personal estate as had been exhausted by them in the 
 payment of their debts.fg) 
 
 It must be here noticed, that m Keeling v. Brown, Sir Richard 
 Pepper Arden, Master of the Rolls, refused to confine the specialty 
 creditors of the testator to the real estate disposed of by a general 
 residuary clause, the personal estate being sufficient to pay all the 
 debts, but not the legacies ; although the Court, from the implied 
 charge upon the land by the will, would have marshalled the assets 
 for the simple contract creditors, if the personal estate had been 
 sufficient to pay their demands. In that case(A) tflaron Brown be- 
 gan his will in these words, " 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 executrix and execu- 
 tors hereinafter named. Item, I give, devise and bequeath to my 
 nephew /. Brown all that my messuage, &c. wherein he now lives, 
 at If., and also the sum of 400Z., to hold to him, his heirs, executors, 
 administrators, and assigns for ever." The testator then devised 
 another house to his nephew Charles in fee, and gave another house 
 
 (e) See the fourth resolution in Hasletvood v. Pofie, 3 P. Will, 323. 
 
 (/) 3 Bro. C. C. 352. (note. ) (,) See Muddle v. Fry, 6 Mad, 270. 
 
 (A) 5 Ves. 359.
 
 624 Marshalling of Jlssets. [Cn. XV. 
 
 to his wife for life, with remainder to /. Brawn in fee. And after 
 bequeathing specific parts of his personal estate to his wife, &c. 
 and giving some pecuniary legacies, he gave the residue of his estate 
 and effects, whether real or personal, to J. Brown absolutely, and 
 appointed his wife, <S. Fcrnehough, and H. Hatton, executrix and 
 executors. The testator's personal estate being large enough to 
 pay all the debts, but insufficient to answer the legacies, the ques- 
 tion was, whether the assets should be so marshalled, as at least to 
 confine the specialty creditors to the real estate in favour of the lega- 
 tees *? and the Master of the Rolls expressed a clear opinion, that 
 there was no charge of the debts upon the real estate, but a mere 
 direction to the executors- to. pay the debts, without giving them any 
 other fund than the personal estate, out of which they could fulfil 
 that duty. If any of the debts were to go unpaid by the insufficiency 
 of the personal estate, he would certainly marshal the assets ; mak- 
 ing the real estate to pay as much of the specialty debts as would 
 be necessary to obtain a fund from the personal estate for payment 
 of the simple contract creditors : but there it was agreed on all 
 hands, that it was not necessary for the payment of the debts of the 
 testator to do so. 
 
 Then, there being no charge upon the real estate for payment of 
 debts, and there being an ample fund of personal estate for the pay- 
 ment both of specialty and simple contract debts, he was clearly of 
 opinion in that case, there was no fund but the surplus of the per- 
 sonal estate, if there should be any, after payment of all the debts 
 of the testator. He could not marshal the assets for payment of 
 the legacies. He had formerly fully expressed his opinion upon 
 that point, as to the difference between debts and legacies. He 
 understood the Lord Chancellor expressed some doubt of it in the 
 case of Williams v. Chitty,(i) but, upon reflection, he (the Master 
 of the Rolls) remained of the same opinion, and decreed an account 
 of the personal estate, and of the debts, funeral expenses, and lega- 
 cies; and if, after payment of all the debts, there should not be 
 enough of the personal estate to pay all the legacies, the legatees 
 must abate in proportion. There was no other fund for their 
 payment. 
 
 It is observable in the last case, that the Master of the Rolls 
 seems to. have thought the introductory clause in the will was suffi- 
 cient to charge the lands with the specialty debts in favour of simple 
 contract creditors, but not in favour of the legatees, under the per- 
 suasion that the law required a stronger mark of intention to charge 
 the real estate with legacies than with debts : and this interpretation 
 of his words seems strengthened by his reference to his opinion ex 
 pressed to that effect in Kighthy v. Kightley, before stated and con- 
 sidered. (fe) This distinction has, indeed, been questioned by Lord 
 Loughborough, C. in the case alluded to by the Master of the Rolls ; 
 so that it seems this decision of his Honour, in Keeling v. Brown, 
 cannot be entirely devested from doubt, while Lord Loughborough's 
 opinion remains uncontrolled by equal authority. 
 
 2dly. Assets marshalled in favour of legatees, where the real 
 
 (J) 3 Ves. 551. (jt) Supra, 455.
 
 SECT. I.] Marshalling of Assets. 625 
 
 estate is devised subject to a charge for payment of one or more 
 legacies. 
 
 In the case of Hariby v. Roberts,(l) W. Roberts, by his will gave 
 several legacies to the defendant and others, and devised his real 
 estates, in trust for two persons who were his heirs at law, and who 
 by descent would take as co-parceners ; and by a codicil, he gave, 
 over and above \he legacy in his will, another legacy of 30001. to 
 the defendant, which he directed his executors and trustees to pay; 
 and charged all his real and personal estate whatsoever with the 
 payment. The personal estate was exhausted in payment of the 
 3000/. legacy; and the question was, whether the other legatees 
 should stand in the place of the 30001!. legatee, to be paid out of 
 the real estate. Lord Hardwicke, C. decreed that they should. 
 He observed that he saw no difference between that case and one 
 where a person, indebted by a simple contract, having lands and 
 personal estate, begins his will by charging all his estate with pay- 
 ment of his debts, and then, after giving general, legacies, devises 
 his real estate by way of specific devise. The simple contract cre- 
 ditors exhaust the personal estate ; the Court would order the gene- 
 ral legatees to stand in their place, and come upon the real. A 
 second question was made, whether the lands and legacies should 
 bear the burthen in proportion to their values'? but the Lord Chan- 
 cellor decreed there was no ground for it, nor was it the intention of 
 the testator, nor was there any case where it had been done. 
 
 The same equity is exercised in marshalling assets among le- 
 gatees, where some legacies are made effectual charges upon the 
 real estate, and others are only charged on the personal estate. 
 
 Thus in Masters v. Masters,(rn) Mary Masters, by her will, after 
 giving several general and specific legacies, devised her real estate 
 to her nephew and heir at law, the defendant, charged with the pay- 
 ment of her legacies above mentioned, and made him executor. 
 The testatrix afterwards added a codicil to her will, and gave other 
 legacies, which were not charged upon the real estate. It was de- 
 creed by Sir Joseph Jekyll, Master of the Rolls, that the personal 
 estate not being sufficierit to pay the legacies both by the will and 
 codicil, and the real estate being liable to the legacies by the will, 
 and not to those by the codicil, the estate should be so marshalled, 
 that, as far as possible, the whole will might take effect, and all the 
 legacies be paid. And therefore, that the legatees in the yvill 
 should be paid out of the real estate ; and if that should be defi- 
 cient, as to the surplus, they should come in average with pecuniary 
 legatees in the codicil, to be paid out of the personal estate ; and 
 that, there being admitted to be a deficiency, the land should be 
 forthwith sold to prevent a greater deficiency. 
 
 In the case of tfligh v. The Earl of Darnley,(n) the defendant's 
 father, the then late Earl of Darnley, having two sons and three 
 daughters, gave by his will 8000Z. a piece to his two eldest, and 
 60001. to his youngest daughter, charging his real estate with the 
 payment thereof. By a codicil, he bequeathed several general le- 
 gacies of considerable value to his brothers and sisters, but without 
 
 (/) Amb. 127. This case appears to be the same as Hamley v. Fisher, report- 
 ed by Dickens, 104. (m) 1 P. Will. 421. (n) 2 P. Will. 619.
 
 626 Marshalling of Assets. [Cn. XV. 
 
 charging them upon his real estate. Subsequently to the date of 
 the codicil, he entered into a contract before the Master, for the 
 payment of 17,000/. for a third of the manor of Cobham Hall in Kent. 
 The Master reported him the best purchaser ; and before his death, 
 which happened soon after, the report was absolutely confirmed. 
 The Earl's personal estate, before his entering into the contract for 
 this purchase of the estate, was sufficient for the payment of all his 
 legacies ; but the performance of the contract would, as it was 
 thought, occasion a deficiency of assets. The legatees in the codi- 
 cil therefore prayed by their bill, that the assets might be marshall- 
 ed, and the daughters legacies by the will paid out of the real 
 estate ; or if already recovered out of the personal estate, then that 
 the plaintiffs might stand in the place of the daughters, and take so 
 much out of the land for their legacies, as these had exhausted out 
 of the personal estate ; which the Court decreed as reasonable, and 
 within the common rule of marshalling assets. 
 
 The same rule was adopted in the recent case of Banner v. Bon- 
 ner.(o] In that case Thomas Banner, by will duly executed ac- 
 cording to the statute of frauds,(p) gave legacies to his eldest son 
 Robert Banner Warwick, and to his daughters ; and devised certain 
 real estates to trustees for a term of one thousand years, and subject 
 thereto, to his eldest son for life, and his first and other sons in 
 strict settlement; and the trusts of the term were in the usual man- 
 ner declared to raise and pay to his son and daughters the legacies 
 " hereby bequeathed to them respectively, with interest for the same 
 as aforesaid, as also the several other legacies hereinafter bequeathed" 
 By a subsequent codicil, the testator gave to three of his daughters 
 800Z. each, in addition to the legacies given by his will, and he di- 
 rected his codicil to be considered as part of his will. The codicil 
 was not altered. The question upon the bill filed by two of the 
 daughters for their legacies was, whether those given by the codicil 
 were charged upon the real estate, the personal estate being insuffi- 
 cient ; and Lord Eldon, C. said the construction he was obliged to 
 adopt was very unfortunate ; but he could not make the declaration 
 prayed by the bill, that the legacies bequeathed by the unattested 
 codicil were charged upon the real estate. That was not a general 
 charge of legacies, as Hannis v. Packer. (q) He could only marshal 
 the assets ; as Sir Joseph Jekyll did in Masters v. Maslers.(r) 
 
 3dly. The following cases are instances wherein the real estate 
 is devised subject to a charge both with debts and legacies. 
 
 In the case of Burton \.Pierpoint, (s) Mr. William Pierp&int, upon 
 his marriage with Mrs. Darcy, settled his real estate on himself for 
 life, remainder to his wife for life, remainder to the first and other sons 
 of his marriage in tail male, remainder to his own -right heirs. The 
 testator having two sons by this marriage, and having a small estate 
 in fee-simple, unsettled, devised his wife's jewels to her, and like- 
 wise the use of the plate to her for life ; after which he devised all 
 his real estate, subject to his debts and legacies, and after his debts 
 and legacies paid, to his kinsman the Marquis of Dorchester ; and in 
 1706, the testator died, leaving two infant sons. At the testator's 
 
 (o) 13 Ves. 379. (/z) 29 Ch. 2. c. 3. (y) Amb. 556. safira, 457. 
 
 (r) Last page. () 2 P. WiU. 78. 82.
 
 SECT. II.] Marshalling of Jlssets. 627 
 
 death his real and personal assets were not sufficient for the pay- 
 ment of his debts ; his widow, therefore, gave up the jewels and plate 
 bequeathed to her, which were applied towards the debts ; but in 
 the decree obtained for the sale of the real estate, and for an ac- 
 count of the personal as well as real assets, the widow's claim of her 
 jewels and plate was saved for her. In 1719, the testator's two sons 
 died under age and without issue, whereby the estate tail of the 
 settled lands expired, and the reversion in fee falling in, became 
 liable by the will to the debts. The Lord Chancellor said, that in 
 the present case, as there was an express bequest of the jewels to the 
 widow, notwithstanding that, at the time of the death of the testator, 
 there were not assets, either real or personal, yet since afterwards, 
 though by a remote accident, assets had happened, there could be 
 now no inconvenience to any creditor or others ; and that this lega- 
 cy should be paid, and the intention of the testator performed, and 
 the rather, for that the real and personal assets were by the will 
 made liable to the debts and legacies ; especially as it was the con- 
 stant rule, that a legatee, where the real estate was made liable to 
 pay debts, on the creditors exhausting the personal assets, should 
 stand in the place of the creditors, and be paid out of the land ; and 
 that this was stronger in the case of a specific legacy, the principal 
 case, which was to be preferred'in payment before a pecuniary lega- 
 cy. His Lordship also decreed, that all the legatees were to be paid 
 before the residuary legatee took any thing. 
 
 In the case of Norman v. Morrell,(t) Sarah Long devised her real 
 estate, subject to an annuity, some legacies, and her debts and 
 funeral expenses, and also subject to the debts of her late brother ; 
 and, by a subsequent codicil, gave a legacy to Mary Norman. The 
 personal estate was exhausted in payment of mortgage and bond 
 debts ; Mary JVorman filed a bill for her legacy, praying satisfac- 
 tion thereof out of the testatrix's real estate, or at least to the ex- 
 tent of the personal estate exhausted in payment of such of her 
 debts and legacies as should appear to have affected her real 
 estates : and the Master of the Rolls decreed, that the assets should 
 be marshalled. 
 
 SECT. II. The marshalling of assets in favour of legatees, where 
 the real estate devised is not charged by the will with debts 
 or legacies, but there is a specific lien on the real estate so 
 devised ; 
 
 And, first, we shall consider the cases where the specific lun is a 
 mortgage. 
 
 In the case of I^ukins v. Leigh,(u) Benjamin Knight having mort- 
 gaged his freehold lands for 2500Z. began his will in these words: 
 "As touching all my worldly estate, after payment of my debts and 
 funeral charges, which I will to be first paid, (a:) I give my freehold 
 estate in Kent to my wife, for life, chargeable with an annuity of 
 30J. to E. Knight for life." And then, after his wife's death, he 
 
 (0 4 Ves. 769. () Forrest. 53. 
 
 (or) As to the interpretation of this introductory clause constituting a charge 
 upon the real estate, see Chap. 12. sect. 2. supra, p. 448.
 
 628 Marshalling of Assets. [Cn. XV. 
 
 gave his freehold estate, so charged, to the children of his three sis- 
 ters, and directed the residue of his personal estate to be placed out 
 at interest, his wife to have the interest for life, and, after her death, 
 the principal to be divided among the children of his three sisters^ 
 and he gave his wife 1 500Z. with a proviso that the provisions in the 
 will should be accepted by her in lieu of dower, and in satisfac- 
 tion of her share in his personal estate. The question was, whether 
 the personal estate should be applied in exoneration of the real, so 
 as to defeat the general legatees, there not being sufficient to pay 
 the 15001. if the personal estate should be applied to exonerate the 
 real 1 ? And Lord Talbot, C. decreed, "that the legatees must have 
 the legacies out of the personal estate, in case the mortgagee kept 
 to the real ; and if he fell upon the personal, they had a right to 
 stand in his room, for so much out of the real estate as he should take 
 out of the personal, that being a proper fund for their payment." 
 
 In the case of Forrester v. Leigh,(y) Charles Leigh being seised 
 of real and personal estate, and being indebted by mortgages con- 
 tracted by himself, and in other mortgages contracted by the former 
 owner on part of his real estate, from whom he purchased, and also in 
 simple contract debts, after giving by his will several specific lega- 
 cies to Lady Barbara, his wife, and several legacies to the plaintiff, 
 he gave his real estate to his wife, for life, remainder to Thomas 
 Lord Leigh for life, with divers remainders over. Thomas Lord 
 Leigh, at his death, left the defendant Lord Leigh, his only son. 
 The bill was brought by the plaintiffs, for their legacies; and if the 
 personal estate should be exhausted in payment of debts by special- 
 ty, that the plaintiffs might stand in the place of the creditors, and 
 be paid out of the real estate. Lord Hardwicke, C. observed, there 
 were several questions; first, whether the plaintiffs were entitled to 
 marshal the assets generally, and to stand in the place of the spe- 
 cialty creditors generally. First, he should consider the question 
 as contended; (i. e.} to stand in the place of bond creditors, not 
 accompanied with mortgages, where there was a devise of land. 
 Secondly, he should consider it where there were mortgages. As to 
 the first, no authorities went so far ; they were otherwise ; and as to 
 the second question, respecting the mortgages, his Lordship said, 
 " They are of two sorts, 1st, those which were contracted by the tes- 
 tator himself; 2d, those contracted by the former owner of the es- 
 tates. The covenant for payment of those mortgages, entered into 
 by the former owner, will not bind the personal estate of the testa- 
 tor. They were entered into diverso intuitu. The two purchasers 
 did it to indemnify each other. The debt is apportioned on each 
 part, and the testator covenants to pay his proportion, or to indem- 
 nify the purchaser of the other part of the estate. Where an estate 
 descends subject to a mortgage, if no person will take an assignment 
 of the mortgage, without the heir-at-law covenanting to pay, such 
 covenant only subjects his personal estate collaterally. I am of 
 opinion that the plaintiffs have a right to stand in the place of the 
 mortgagees, to have satisfaction out of the real estate, for what they 
 shall exhaust of the personal. A mere specialty debt is no lien upon 
 
 (y) Ambl. 171.
 
 SECT. II.] in favour of Legatees. 629 
 
 land in the hands of the obligor, his heir or devisee. A mortgage is 
 a lien, and an estate in the land. "(z) 
 
 The same rule holds a fortiori where the estate descends subject to 
 a specific lien. 
 
 This has been long a settled rule of the Court of Chancery ; we 
 find it acted upon in an anonymous case, 32d Car. 2. (a) In the 
 case alluded to, a father seized in fee, mortgaged the land, and gave 
 a statute to the mortgagee to pay, &c. and by his will bequeathed 
 500/. to his daughter, and died ; the mortgagee took so much of the 
 personal estate in execution on the statute, that there were not suffi- 
 cient assets left to pay the legacy. The question was, whether, as 
 the heir had had the mortgage discharged out of the personal estate 
 liable to the legacy, the daughter should have relief against the heir, 
 for the amount of her legacy. And the Chancellor observed, "where 
 the heir is indebted by mortgage made by his father, or by other 
 means as heir to his ancestor, the personal estate in the hands of the 
 executors shall be employed to pay that debt in ease of the heir : but 
 if there be no assets to pay other creditors or legatees, the heir shall 
 not turn his charge on the personal estate ; in this case here was 
 sufficient to pay the debt by mortgage and the legacy out of the per- 
 sonal estate, and when both can be satisfied, both shall be satisfied : 
 and the contrivance to make the personal estate liable to the legacy 
 towards the satisfaction of the mortgage looks like a fraud, and shall 
 not prejudice the legatee, but she shall have recompense against or 
 upon the mortgage, though originally not liable to her." 
 
 So also in the more recent case of Lucy v. Gardiner, (b) it may be 
 collected that the estate descended, though that fact is not specified. 
 In that case a bill was filed for a legacy of 1500Z. given to the plain- 
 tiff Sarah, by the will of her father, who made the defendant, .his son 
 and heir, executor. The defendant insisted that there were not 
 sufficient assets to pay the debts and legacies, and to show the defi- 
 ciency, said, that the testator upon his marriage with his last wife, 
 conveyed a freehold estate, and also a. term for years in the Sun Ta- 
 vern in Holborn, to trustees, to raise 1500/. for his .wife, in full of 
 any demand which she might otherwise have, and that he had sold 
 the term for years, and thereby raised the 1500?. and paid the same 
 to the wife, on which account the residue of the personal estate was 
 not sufficient to pay the whole 1500/. legacy. But it was decreed, 
 by Barons Price, Page, and .Gilbert, that the executor should not 
 apply the term to the payment of the widow's 1500Z.: but that the 
 same should go; in case of a deficiency of .other personal assets, to- 
 wards payment of debts and other legacies :. and the 1500Z. given to 
 the widow (and then paid,) should remain a charge upon the free- 
 hold estate. 
 
 The preceding cases in this section illustrate also the following 
 rule of the Court: " That although the natural fund for the payment 
 of debts in the personal estate ; and the heir or devisee of the real 
 is in general entitled to have the personal estate applied in exonera- 
 tion of incumbrances affecting the former ; yet the Court of Chance- 
 ry will not permit such arrangement to take place, when it would de- 
 
 (r) See also Rider v. Wager, 2 P. Will. 329. 335. infra, p. 630. Aldrichv 
 Coofier, 8 Ves. 397. (a) Chan. Cases, 2d part, 4. (*) Bunb. 137. 
 
 VOL. i. 4 L
 
 630 Marshalling of Assets [Cn. XV. 
 
 feat legatees of their legacies." The rule is further exemplified, in 
 the case of a general legatee, by the case of Rider \. JVager,(c). In 
 that case, Admiral Littleton, after making his will, by which he dis- 
 posed of his real estate, and gave some general legacies, mortgaged 
 the estate for 3000J.; and it was contended, that this debt should be 
 paid out of the personal estate, prior to the specific, or at least before 
 the general, legacies ; and it was said to have been determined, that 
 a mortgage should be paid out of the personal estate, in preference 
 to the customary or orphanage part by the custom of London ; which 
 last was admitted by the Court, because the custom should not take 
 place, till after payment of debts; and it was afterwards admitted 
 by the counsel on both sides, that the land being made, by the tes- 
 tator himself, a fund for the payment of the mortgage money, should 
 not be exonerated by the personal estate, so as to disappoint any of 
 the debts or legacies, though it was entitled to such exoneration 
 against an administrator or residuary legatee. 
 
 So also in Oneal v. Mead s (d) the rule is exemplified in favour of a 
 specific legatee. In that case, one seised in fee of a real estate, 
 which he mortgaged for 500J. and possessed of a leasehold, devised 
 the former to his eldest son in fee, and gave the latter to his wife, 
 and died, leaving debts which would exhaust all his personal estate, 
 except the leaseholds given to his wife. Upon the question, whether 
 the leaseholds devised to the wife should be liable to discharge the 
 mortgage, the Master of the Rolls decreed, that, as the testator had 
 charged his real estate with this mortgage, and, on the other hand, 
 specifically bequeathed the leasehold to his wife, the heir should not 
 disappoint the legacy by laying the mortgage debt upon it, as he 
 might have done, had it not been specifically devised ; and though 
 the mortgaged premises were also specifically given to the heir, yet 
 he to whom they were thus devised, must take them cum onere as pro- 
 bably they were intended. That, by such construction, each devise 
 would take effect; viz. the leasehold estate would go to the devisee 
 thereof, and the heir would enjoy the freehold, though subject to 
 the burden, with which the testator in his lifetime had charged it. 
 The Master of the Rolls also observed, that the resolution did not in 
 the least interfere with Clift on v. Burt, because in the latter there 
 was no mortgage. 
 
 The preceding cases are instances wherein the specific lien was 
 a mortgage , and it appears clearly settled, that the assets may be 
 so marshalled, as to let the legatees come upon the mortgaged 
 estate devised or descended in the place of the mortgagee who has 
 been satisfied out of the personal estate. We proceed, in the next 
 place, to a question which has excited considerable discussion, 
 namely, whether the assets will be marshalled in- favour of legatees, 
 where the specific lien on the real estate is that of a vendor, in re- 
 spect of purchase money due to him by the testator, who was the 
 purchaser ; or in other words, whether the legatee of the purcha- 
 ser has a right to come upon the real estate for the satisfaction of 
 his legacy, to the amount for which the personal assets have been 
 applied in payment of the purchase money, so due by the testator to 
 the vendor. 
 
 (c) 2 P. Will 329. 335. see also Ttyfiing v. Tijifiing, 1 ib. 729. (rf) 1 P. Will 693.
 
 SECT. II.] in favour of Legatees. 631 
 
 The authorities are conflicting, and we shall first consider those 
 which oppose the claim of the legatees. 
 
 Coppinv. Coppin,(e) determined, that the legatees could not stand 
 in the place of the vendor, with respect to his equitable lien. In 
 that case Francis Coppin, the younger brother of the defendant 
 John Coppin, agreed with the defendant for the purchase of an 
 estate in Bucks for 4000Z. the purchase deeds were executed in the 
 lifetime of Francis, but part of the purchase money only was paid. 
 Afterwards Francis made his will, whereby, after giving several con- 
 siderable legacies, he gave the residue of his land and goods to his 
 brother John Coppin. The will was attested only by two witnesses. 
 Afterwards Francis the purchaser died, leaving his brother John his 
 heir at law and executor. The legatees filed their bill for their 
 legacies. They alleged that the purchase deed was fraudulent, 
 and according to one report(/) of the case, urged, that although 
 the will could not charge the lands, yet that the vendor had an 
 equitable lien thereon for the purchase money remaining unpaid : 
 Lord King held, that the defendant John Coppin had a right to re- 
 tain the residue of the purchase money out of the assets. It appears 
 that the assets would be exhausted in discharge of the purchase 
 money. The claim of the legatees to charge the real estate in the 
 place of the equitable lien does not by the report appear to have 
 been noticed by Lord King. The decree however virtually deter- 
 mined, that the legatees could not stand in the place of John Cop- 
 pin the vendor, in respect of his equitable lien. 
 
 In the case of Pollexfen v. Moore,(g] Thomas Moore .agreed to 
 purchase of the plaintiff an estate for 1200Z. but died before he had 
 paid the whole of the purchase money. T. Moore, by his will, after 
 giving SQOl. to the defendant Mary Moore his sister, devised the 
 purchased estate, and all his personal property to J. Kemp, and 
 made him executor. J. Kemp committed a devastavit of the per- 
 sonal estate, and died, and the purchased estate descended upon 
 B. Kemp, his son and heir. J. Kemp died intestate, and 
 ministration de bonis non of T. Moore was granted to Mary Moore. 
 The plaintiff brought the bill against the representative oi the real 
 and personal estate of T. Moore, and J. Kemp for the remainder ot 
 the purchase money. Mrs. Moore, the sister and .legatee of the i 
 tator, filed a cross bill, praying that if the remainder of the purchas 
 money should be paid to the plaintiff Pollexfen, out of the personal 
 estate of T. Moore and J. Kemp, she might stand in his place, an- 
 be considered as having a lien upon the purchased estate i< 
 legacy. Lord Hardwicke, C. observed, " The vendor of his estate 
 has a lien upon the estate he sold, for the remainder of the purchase 
 money : for from the time of the agreement, .Moors was a trustee 
 to the money for the vendor. But this equity will not extend > 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 
 (<?) 2 P. Will. 290. (/) Select Cas. ch. 28. (g) 3 Atk. C~3.
 
 632 * Marshalling of Assets [Cn. XV. 
 
 applied in paying the defendant's legacy. Therefore, the estate 
 which has descended from /. Kemp, the executor of T. Moore, upon 
 B. Kemp, comes to him liable to the same equity as it would have 
 been against the father, who has misapplied the personal estate ; 
 and, in order to relieve Mrs. Moore, I will direct Pollexfenlo take his 
 satisfaction upon the purchased estate, because he has an equitable 
 lien both upon the real and personal estate, and will leave this last 
 fund open, that Mrs. Moore, who can at most be considered as a 
 simple contract creditor, may have a chance of being paid out of 
 the personal assets." His Lordship decreed that the residue of the 
 purchase money should, in the first place,(h) be paid out of the 
 personal estate of T. Moore, but if it should be insufficient to pay 
 such demand, and all his other debts, legacies and funeral expenses, 
 or if the personal estate of Moore was not then sufficient, by reason 
 that the assets of Kemp were not sufficient to answer such part 
 thereof, as came to his hand, then such deficiency, so far as the 
 personal estate of the said T. Moore should be applied in payment 
 of the said purchase money, should be made good out of the pur- 
 chased estate ; and a competent part thereof was decreed to be sold 
 accordingly. 
 
 In the preceding case, Lord Hardwicke expressed his opinion, 
 that the equity did not extend to a third person ; but he seems to 
 have deviated from the rule in favour of a third person on the ground 
 of fraud. Mr. Sugden, who discusses the point under consideration 
 in his valuable treatise on the Law of Vendors and Purchasers, in- 
 geniously suggests, 'that Lord Hardwicke 's decision in Pollexfen v. 
 Moore, was made on the ground that, as follexfen had not deliver- 
 ed the title deeds, but had by agreement kept them as a security for 
 the purchase money, it must be considered as an equitable mortgage, 
 and hence that the dictum and determination were not at variance ; 
 but Lord Hardwicke seems from the decision, as reported, to have 
 proceeded exclusively on the ground of fraud in /. Kemp. 
 
 The authorities, in favour of the legatee's right to have the assets 
 marshalled, remain to be considered. 
 
 The case of Austen v. Halsey,(i) bears upon the subject, though 
 that case was decided upon the general-construction of the will. In 
 that case, Robert tflusten, by his will, gave legacies to his daughters 
 and others, and then devised and bequeathed his freehold, copyhold, 
 leasehold, and other personal estates to trustees, absolutely, upon 
 trust to convey and assign the same to his son Henry Edward Austen 
 absolutely, when he attained twenty-one, or married before with 
 consent ; but in case he married before twenty-one without consent, 
 the trustees were to settle the freehold and copyhold estates upon 
 his son and his issue in strict settlement, with several remainders 
 over ; and also to assign the leasehold and other personal estates, 
 and the savings and accumulations thereof, after payment of debts 
 and legacies, to his daughters equally. By a codicil, dated 1st of 
 November 1797, duly executed according to the statute, the testator 
 stated that the trustees of a certain estate called Titings, had pro- 
 posed to sell it to him, and in case of his death before the comple- 
 tion of the contract, he directed his trustees to complete the same, 
 
 (A) As corrected by Mr. Sugden from the Register's book, Vend, and Pur. 533. 
 Ed. 1822. (i) 6 Ves. 475.
 
 SECT. II.] in favour of Legatees. 
 
 and settle the estate to the uses in the will directed of his other 
 estates ; and he gave them a power to apply, the personal estate to 
 that purpose. On the 2d of November, the testator executed the 
 contract for the purchase of the Tiling estate for 7000Z. exclusively 
 of the timber which was to be taken at a valuation, and he died on 
 the day following. The.trustees completed the purchase out of the 
 personal estate which was thereby exhausted. The daughters filed 
 their bill against the brother and the trustees for their legacies ; 
 praying, among other things, that the purchase of the estate called 
 Tilings might be completed, the purchase money paid out of the 
 testator's leasehold and personal estates specifically bequeathed, and 
 not from the other personal estate, in order that the personal estate 
 might be applied in payment of the legacies. Upon the first ques- 
 tion, whether the bulk of the real estate was charged with the lega- 
 cies 9 Lord Eldon, C. decided in the negative. And upon the 
 second question, whether the purchased estate might by circuity be 
 made answerable to the legacies "? His Lordship said, " Pollexfen v. 
 Moore is the only case cited ; but, without that authority, I consider 
 it clearly settled, that the vendor has a lien for the purchase money, 
 while the estate is in the hands of the vendee : I except the case, 
 where upon the contract, evidently that lien by implication was not 
 intended to be reserved. That is, in equity, very like a charge, and 
 the cases of marshalling seem to have gone this length, that where 
 there is a charge upon an estate descended, a legatee shall stand in 
 the place of the person having that charge, resorting to the personal 
 estate ; and I do not think a power to apply the personal estate, 
 which is all that is given by this codicil, amounts to a command, 
 leaving no discretion to the trustees. There is a difficulty here from 
 the -circumstance, that the estate purchased has not descended, but 
 is devised ; and there is a difference in marshalling as to that. In 
 this instance it is devised to the heir with many remainders over. 
 It may be found difficult for the legatees by means of this circuity 
 to find a fund for payment." 
 
 In the case of Trimmer v. Bayne,(k) the question came before Sir 
 William Grant, and called for a decision. In that case, a claim of 
 Alexander Bayne, the heir at law of the testator, had been ascertain- 
 ed by the Master's report to amount to 3630Z. and a fraction, in re- 
 spect of specialty and simple contract debts, and the.purchase mo- 
 ney of real estates contracted for by the testator before his death, 
 by writing not under seal, paid out of the money produced by sale 
 of the testator's real estate. The deposit money only had been paid 
 by the testator. The cause came on for further directions, and upon 
 a petition by the heir, the principal question was upon his claim to 
 be reimbursed his payments out of the real fund on account of the 
 purchase money of the estates contracted for by the testator. The 
 case of Coppin v. Coppin was not cited, but for the heir it was con- 
 tended, that there was no decision against the dictum of Lord Hard- 
 wicke in Pollexfen v. Moore. The Master of the Rolls observed, in 
 reference to that case, " this is a very obscure report, and it has 
 perplexed me very much formerly ; the decision is directly against 
 the dictum of Lord Hardwicke. This cannot be distinguished from 
 
 () 9 Ves. 209.
 
 634 Marshalling of Assets [Cn. XV. 
 
 the common case of marshalling ; that a person having two funds 
 shall not by his choice disappoint another having only one." 
 
 In the case of Headley v. Readhead,(l) the principle of marshalling 
 seems to have been admitted in favour of the legatees, but (it is pre- 
 sumed from the expressions in the will, intimating in that case an 
 intention on the part of the testator equaUy favourable to the devi- 
 sees and legatees,) it was considered by the Master of the Rolls a 
 case for rateable contribution. By the report of that case, the gene- 
 ral effect only of the will is thus stated ; " William Readhead by his 
 will, reciting that he had contracted for the purchase of an estate, 
 directed his executors to pay the purchase money for the same, and 
 he devised the estate to his natural son, the defendant, and he also 
 gave several legacies and annuities to the other defendants : the 
 personal estate was deficient on account of certain Scotch leaseholds, 
 not passing by the will, which, according to the Scotch law, was not 
 for that purpose formally executed. The Master found the personal 
 estate was about sufficient to pay either the purchase money due, or 
 the legacies and annuities, but not both. The direction to the ex- 
 ecutors manifests a clear .intention, in this case, that the devisee 
 should take the devised estate, clear of the lien ; and so far it seems 
 a strong authority in. favour of the legatees. 
 
 In the case of Mackreth v. Symmons,(m) the following observa- 
 tions of Lord Eldon occur : " I have some doubt upon another point ; 
 taking the vendor to have the lien, whether the Court will in the 
 case of the death of the vendee marshal the assets, so as to throw the 
 lien upon the purchased estate. It has often been said, and the case 
 of Coppin v. Coppin stated as an authority, that the Court will not 
 do that." The Lord Chancellor in his judgment takes no notice of 
 that point. In that case the vendor happened to be the heir of the 
 vendee ; so that the estate was. at home : and it was held, that, be- 
 ing also the executor, he was entitled to retain the purchase money 
 out of the personal assets. That decision requires a good deal of 
 consideration. If the estate had been in. a third person, the general 
 doctrine as to a person having two funds to resort to, might be thought 
 to have an immediate application j and the express terms of the de- 
 cree in Pollexfen v. Moore, might be found very inconsistent with it. 
 In giving judgment upon a subsequent day, his Lordship discussed 
 the cases on the doctrine of the vendor's lien, and observed, " the 
 next case is Coppin v. Coppin, where the doctrine of Pollexfen v. 
 Moore, as to marshalling, was, practically, though I doubt whether 
 it ought to have been admitted;" and in alluding to Lord Hard- 
 wicke's dictum, that this equity would not extend to a third person, 
 Lord Eldon continues, "If that is to be understood, that this equity 
 would not extend to a third person, who had notice, that the money 
 was not paid, Lord Hardwicke's subsequent decisions contradict 
 that : if the meaning is that he would follow the case of Coppin v, 
 Coppin, and that, if the vendor exhausted the personal assets, the 
 legatee of the purchaser should not come upon the estate, there is 
 great difficulty in applying the principle ; as it would then be in the 
 power of the vendor to administer the assets as he pleases ; having 
 a lien upon the real estate to exhaust the personal assets, and dis- 
 
 (/) Cooper, R. 50. (m) 15 Ves. 329.
 
 SECT. III.] in favour of Legatees. 635 
 
 appoint all the creditors ; who, if he had resorted to his lien, would 
 have been satisfied ; and in that respect, with reference to the prin- 
 ciple, the case is anomalous." 
 
 The cases seem now, however, to have clearly settled, that the 
 vendor's lien will prevail, not only against the purchaser, but also 
 against his heirs, and every person claiming through him, and even 
 against a purchaser, for a valuable consideration, with notice. The 
 only question, therefore, now is, not whether this lien extends to the 
 purchaser, and those claiming through him, but admitting the general 
 lien to that extent, whether the real and personal estate ofWhe pur- 
 chaser shall be so marshalled as to throw the lien on the real estate 
 for the benefit of legatees of the purchaser : a question, it will be ob- 
 served, between volunteers, all of whom derive their interests from the 
 testator. It seems to be admitted, that assets would be so marshalled 
 in favour of legatees, where the lien is an equitable mortgage, as 
 well as where it is a legal mortgage ; and there appears not to be 
 any substantial difference between an equitable mortgage and the 
 vendor's equitable lien for his purchase money unpaid, which is, by 
 construction of equity, a charge upon the estate in the hands even 
 of a purchaser, for a valuable consideration with notice: it would, 
 therefore, seem to follow, that no substantial reason can be given 
 against the marshalling of assets in this case. The only plausible 
 objection against it was urged arguendo in the case of Coppin v. 
 Coppin, and is forcibly stated by Mr. Sugden, in the discussion be- 
 fore alluded to, on the ground of the Statute of Frauds; but no 
 practical inconvenience is likely to arise on this "head. The autho- 
 rities, therefore, may be considered, as having established the rule 
 as to marshalling assets in favour of legatees, in the case of the 
 vendor's lien in opposition to the case of Coppin v. Coppin, and the 
 dictum of Lord Hardwicke in Pollexfen v. Moore. But, if the point 
 is yet to be thought doubtful, at least the weight of authority is in 
 favour of the rule, that the purchased estate, in respect of the 
 vendor's lien for purchase money unpaid, shall be marshalled, so as 
 to keep the heir or devisee to the estate ; or, if they resort to the 
 personalty for payment of the lien, the legatees may stand in their 
 place, and resort to the purchased estate to the amount of the per- 
 sonal assets applied in discharge of the purchase money. 
 
 SECT. III. The marshalling of assets in favour of legatees? 
 where the real estate is neither charged with debts nor le- 
 gacies, nor subject to a specific lien, but there is merely a 
 general lien on the real estate, which descends to the heir. 
 The next rule is, that assets are marshalled in favour of legatees, 
 where the real estate is neither charged with debts nor legacies, 
 nor subject to any specific lien, but there is a general lien and the 
 estate descends to the heir. This rule was stated by Lord Hard- 
 wicke, in Hanby v. Roberts,(n) thus; if there be debts by specialty 
 and legacies, and no devise of the real estate, but it descends, if the 
 creditors exhaust the personal estate, the legatees may stand in their 
 place, and come upon the r^al estate : This is against an heir-at-law. 
 In the case of Mdrich v. Cooper,(o] Lord Eldon observes, " In the 
 
 () Amb. 127. (o) 8 Ves. 396.
 
 ' 
 
 636 Marshalling of Assets [Cn. XV. 
 
 cases of legatees, against assets descended, a legatee has not so 
 strong a claim to this species of equity as a creditor; but the mere 
 bounty of the testator enables the legatee to call for this species of 
 marshalling; that, if those creditors, having a right to go to the 
 real estate descended, will go to the personal estate, the choice of 
 the creditors shall not determine, whether the legatees shall be paid 
 or not."(/>) 
 
 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.



 
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