and invest, and to set apart a sufficient sum to produce an annuity to his widow for her life, and that the trustees, during the life of his wife, should stand possessed of the residue of the money arising from such sales, and, after the decease of his wife, of the whole of such monies, upon trust, to pay and divide the same unto and equally between and amongst all and every his children, as and when they should respectively attain the age of twenty-one years, and to their several and respective executors, administrators, and assigns; but in regard to such of his children as had already attained the age of twentyone years, he directed that the share or shares of such children should be paid to them respectively at the expiration of twelve months after the decease of his wife; but in the event of the decease of any or either of his said children before he, she, or they should have received or become possessed of their shares leaving issue, that the share of the child so dying should go to the children of such child on their attaining twenty-one; and on failure of issue of any of his (the testator's) sons or daughters, then the share of such his sons or daughters should go to such of his (the testator's) children as should be then living:-Held, that the children of the testator, who had attained twenty-one at the date of the will, took vested interests in their shares, liable to be divested in the event of their dying before the widow; but that they were entitled to receive the interest of their shares in the meantime; and that the children who had attained twenty-one since the date of the will, were entitled to an immediate transfer of their shares, except as to the fund appropriated to the widow's annuity. Gibon Rammell, the testator in the cause, by his will, dated the 11th of January 1841, after giving certain specific and pecuniary legacies, gave, devised and bequeathed all his real and leasehold estate to Francis Gillow, Thomas J. Selby, and Thomas Rammell, their heirs, executors and administrators respectively, upon trust, at any time after his (the testator's) decease, absolutely to sell the same. And the testator bequeathed to his said trustees all the rest and residue of his personal estate, upon trust, to convert into money all such parts as should not consist of money. And the testator directed that his said trustees should stand possessed of all his monies, and the proceeds arising from the sale of his real and personal estate, upon trust, to lay out and invest the same at interest on real or government securities, with power to vary the same, &c., and should stand possessed thereof, upon the trusts following, that is to say, upon trust to pay into the hands of his (the testator's) wife, Elizabeth, during so long time as she should remain and continue his widow, a clear yearly sum of 2001., and in the event of her marriage again, then upon trust to pay into the proper hands of his said wife Elizabeth one clear yearly sum of 1001. for her separate use during the remainder of her life. And the testator directed that a sufficient sum should be set apart during the widowhood of his said wife to realize and produce the said yearly sum of 2001., and in the event of her marriage again, then a sufficient sum to realize and produce the yearly sum of 100%. to be paid to her during the remainder of her life. The will then proceeded as follows:-" And I do declare and direct that my said trustees, and the survivor of them, &c., shall, during the widowhood or lifetime of my said wife, stand possessed of the residue of the monies to be produced from my said real and personal estates, and of the securities, stocks and funds, in and upon which the same shall be invested, and upon her decease, of the whole of such monies, and of the securities, stocks and funds, in and upon which the same shall be invested, upon trust, to pay and divide the same unto and equally between and amongst all and every my children born or to be born, as well sons as daughters, as and when they shall severally and respectively attain the age of twenty-one years, share and share alike, and to their several and respective executors, administrators and assigns, but in regard to such of my children who have already attained the age of twenty-one years, then and in such case I direct and desire that the share or shares of such my children shall be paid to them respectively, at the expiration of twelve months after the decease of my said wife, or so soon after as my said trustees shall be in possession of assets to enable them so to do; and my will and desire is, that my said trustees shall pay to my daughters, notwith standing their coverture, for their sole and separate use, the share or shares to which they may be respectively entitled, &c.; but in the event of the decease of any or either of my said children, sons or daughters (before he, she, or they, or either of them, shall have received or become possessed of their divisional share as aforesaid), leaving issue lawfully begotten, then and in such case the share of such child or children shall go to and be equally divided amongst and between the child or children of such my son or sons, daughter or daughters, so dying as aforesaid, on the said child or children respectively attaining the age of twenty-one years, and on failure of issue of any of my said sons or daughters, or in case of issue, and such child or children should die before attaining the age of twenty-one years, then in either of such events so happening, I direct that the share or shares, to which such child or children would have been entitled, shall be equally divided amongst and between such of my children as shall be then living, share and share alike." And after reciting that he had made certain advances to his sons, Gibon Rammell the younger, Thomas Rammell, and Charles Rammell, the testator directed that such advances respectively should be deducted from the portions provided for them respectively by his will. In February 1842 the testator died, and, in the month of April following, Gibon B. Rammell, Thomas W. Rammell and Edward W. Rammell, three of the sons of the testator who had attained twenty-one at the date of the will, filed their bill for the administration of the testator's estate; and on the hearing of the cause the usual accounts and inquiries as to the state of the testator's family were directed. By the Master's report it appeared that the testator left his widow and his eight children surviving him; namely, Gibon B. Rammell, T. W. Rammell and Edward W. Rammell (the plaintiffs), who had attained twenty-one at the date of the will, Elizabeth F. Rammell, who attained twenty-one in the testator's lifetime, Charles Rammell, Emily Rammell, Harbey Rammell and Arthur Rammell, who were infants at the time of the testator's decease. And the Master found that Charles Rammell had attained twenty-one years on the 4th of February 1843; and that Emily Rammell had attained the age of twenty-one on the 9th of February 1845; and that the other children were still infants. The cause coming on for further directions, the principal question was, what interest the plaintiffs took in their shares of the residuary estate: whether they were entitled to call for an immediate distribution of their shares; and if not, what was to be done with the interest of their shares in the meantime. Mr. Romilly and Mr. Rolt, for the plaintiffs. Mr. James Parker, Mr. Wood and Mr. Prior, for the other parties interested. The following cases were cited Ross v. Ross, 1 Jac. & Walk. 154. Law v. Thompson, 4 Russ. 92; s. c. Hope v. Lord Clifden, 6 Ves. 499. July 22.-WIGRAM, V.C. [after stating the will.]-The state of the family was this— there were three children of the testator who had lived to attain twenty-one years at the date of the will; one other child had lived to attain twenty-one between the date of the will and the death of the testator, and another has attained twenty-one since the filing of the bill; and the remainder of the children are infants. The three who attained twenty-one at the date of the will are the plaintiffs in the cause; and the question now is as to the interest they take in the share of this residue. The cases referred to and relied on by the plaintiffs are Mocatta v. Lindo, Schenck v. Legh, and that very numerous class on the same subject, all of which will be found collected in the arguments of counsel, and commented upon by Lord Cottenham in the case of Whatford v. Moore, in which case Lord Cottenham, referring to what Sir W. Grant had said in the case of Howgrave v. Cartier, expresses his opinion that those cases ought not to be extended. The cases relied on by the other side were Gaskell v. Harman, Law v. Thompson, Whiting v. Force, and another case referred to by Mr. Wood of Hutchin v. Mannington. But the first cases are very familiar; they are cases where on a settlement or under a will portions are given to children at the age of twenty-one, the parents taking a life estate. There it is provided, that if the children shall attain twenty-one in the lifetime of their parents, their shares shall not be payable till the death of their parents; with a further proviso giving it over if they die before their shares become payable; in such cases, if the children attain twentyone in the lifetime of their parents, the Court, adverting to these two circumstances, first, that the children were certainly meant to be provided for in case of their attaining twenty-one, or marrying and leaving issue; and to the second fact, that the postponement of payment is merely for the convenience of the life estate of the parents, has held that the words "payable," ""transferable," "assignable," and like words, mean vested. In the other cases, those cited by Mr. Wood and Mr. Prior, in the same interest, there has been a simple gift at a given time, with a proviso that if the party should die before they received what was given to them, the property should go over; and in that case Lord Eldon has observed, and other Judges have followed him, that, if the intention is clearly expressed, it must take effect. Now, if in the present case the widow had taken a life interest in the whole of the property, and if the clause which relates to the case of some of the children who had already attained the age of twentyone years had directed that all the children should not receive what was given to them until the expiration of twelve months after the death of the widow, there would, I think, have been a very plausible ground for contending that the payment being postponed merely for the convenience of the life estate of the parent, the case ought to be dealt with as in the cases referred to by the plaintiffs. If, on the other hand, no part had been given to the widow, it appears to me to be impossible, without direct violence to the language of the will, and that without any reason for violating it, that the Court should put a different construction on it from that which it naturally bears. In this case part is given to the widow for life and part not; and the only ground on which I can overcome the literal construction of the words, will be by inferring that because part was given to the widow for life, therefore I must infer that I ought to transfer to the rest of the residue the same reasoning that would apply to the part that is given to the widow for life. But in a case in which it is impossible to say what the testator had in his contemplation, it appears to me that I should be doing direct violence without reason to the language of the will, and be neglecting that caution given by Lord Cottenham, that except where the words of the will do require it, or there is some inconsistent provision, or where the case falls within decided cases, those cases ought not to be extended. I am compelled to hold, according to the view I take, that the shares are given over, if the parties who attained twenty-one at the date of the will should die before they receive their shares. What that means I need not decide whether the death of the widow, or whatever the time may be; but it does appear to me, on the whole of the will, that the parties to whom those shares are given do take vested interests liable to be divested; therefore, they will be entitled to the interest on the shares, though the shares are given over in the event of their dying before the widow. With regard to those children who have attained twenty-one, but who had not attained twenty-one when the will was made, they clearly take vested interests not liable to be divested; and as they take vested interests not to be divested, though the payment is postponed till the widow dies, and she takes no interest, it appears to me, according to Lord Cottenham's decision in Saunders v. Vautier, and also according to the case to which Mr. Rolt called my attention, that they will take an immediate disposing power over the property. The other children must wait until they attain twenty-one, because until then they have not vested interests. With respect to those who take vested interests liable to be divested, I do not mean to decide anything critical on the effect of the word "receive"; namely, that if the widow were to die, and at the end of a year one of them had not received anything, and that child was to die, I do not mean to say that that share would go over, because it had not been actually received. All that I mean to say is, that if they have not received it in some sense when the widow dies, they cannot receive it afterwards, and then the question arises. There is a class of cases in which the Courts have said, the word "receive" must have a liberal construction, and if the party is ready to receive it, and there has been delay on the part of the trustee, that shall not amount to a forfeiture. The costs of all parties, as between solicitor and client, to come out of the residuary estate. Executor-Trustee-Breach of TrustNegligence of Trustee-Liability-Investment of Trust Monies in Exchequer Bills. A, by his will, devised estates to B, his executor and trustee, to be sold, the proceeds to be divided amongst his younger children at twenty-one, and in the meantime to be invested in the parliamentary stocks or public funds of Great Britain, or on real security. B. deemed it most beneficial to lay out the sale monies on real security, and pending the interval which took place in finding and approving of a proper real security, directed his bankers to invest the same in Exchequer bills, which was accordingly done. The Exchequer bills so purchased remained for upwards of a year in the possession and under the controul of the bankers, undistinguishable from any property they happened to possess. During the treaty for and before the completion of the mortgage, the bankers failed, having, previously to that event, disposed of the Exchequer bills, and appropriated the proceeds to their own use :-Held, affirming the decree of the Court below, that, under the circumstances, the purchase of the Exchequer bills was proper, but that it was the duty of B. not to have left them in the controul of the bankers, and to have distinguished them from the property of the bankers, and that he must make good the loss occasioned by his neglect to take that step. The particulars of this case, and the judgment of the Master of the Rolls, are reported in 12 Law J. Rep. (N.S.) Chanc. 263. The defendant appealed from that decision, and Mr. Bethell, Mr. Wigram and Mr. Shee, appeared for the appellant; and— Mr. Russell and Mr. Chandless, for the plaintiffs. In addition to the cases cited before the Master of the Rolls, the following were also cited : Harden v. Parsons, 1 Eden, 145. Dec. 20, 1845.-The LORD CHANCELLOR.-The defendant, who was the sole executor and trustee of the testator, was by his will directed from time to time, as any money should be realized and come to his hands, to invest the same in a competent share of the parliamentary stocks or public funds of Great Britain, or on real securities in England. He entered into an arrangement to lend a part of this money on mortgage security. Having realized a part of the testator's estate, in order to make the money profitable until the mortgage should be perfected, the defendant directed the money to be laid out in the purchase of Exchequer bills. These Exchequer bills were left for twelve months in the hands of Messrs. Wakefield, who were brokers, but who acted to some extent as bankers, and had the confidence of the testator in his lifetime. These Exchequer bills were left, undistinguished from others, in the hands of Messrs. Wakefield. Considerable delay took place in perfecting the mortgage security, and the Exchequer bills remained in the hands of Messrs. Wakefield until the 4th of March 1841, when they were sold-they sold Exchequer bills to the amount of 4,000l., and appropriated them to their own use. The question is, whether the defendant is to be held responsible, and is bound to make good the loss. It was necessary that he should be prepared with the money when the mortgage security was perfected; and as some time elapsed before the mortgage security was completed, I consider that he was bound, during that lapse of time, to see that these Exchequer bills were not misappropriated. I am compelled to come to the conclusion, after much anxious consideration, that the defendant was not justified in leaving these Exchequer bills for so long a period and for so large an amount in the hands of the brokers. It was not a prudent step on the part of the guardian and trustee of this property. The circumstance of their having to some extent acted as bankers, does not, I think, make any difference. It was the transferring a trust, which was inconsistent with the duty of an executor and trustee. They mixed these bills with the general mass of securities in their possession, and were allowed to have controul over them. There was no sufficient reason for incurring this risk. If the defendant had reflected a little, he must have known and understood that it was his duty, instead of trusting to other persons, to take care that the Exchequer bills should be so secured as to be separate from the property of any other person or persons. It was his duty either to keep the bills in his own hands, or distinctly to have them separated from the property of the brokers. I think the defen dant did not exercise reasonable care and diligence in this case, and that he is therefore responsible for the loss that took place in consequence of the insolvency of Messrs. Wakefield, and that the judgment of the Master of the Rolls must be affirmed. It was suggested by the counsel for the appellant that the testator's widow had acquiesced in and sanctioned the course taken by the executor, and that there were letters which shewed that she was aware of and sanctioned it. Dec. 22.-The LORD CHANCELLOR.-I have read the correspondence, and I think there is nothing at all in the transaction to alter my view of the case. The lady seems to have known that part of the money was laid out in Exchequer bills, but not to have authorized the deposit, or for so long a period, in the hands of the brokers. I read the decree of the Master of the Rolls and the correspondence yesterday, to see if I had omitted anything, and that is the result of my judgment. On the A bill was filed in September, marked "Vice Chancellor of England." 19th of September an order was made by the Master of the Rolls, in the absence of the Vice Chancellor, for a special injunction. The answer had since been put in, and the defendant now wished to apply to the Court to dissolve the injunction. The question was, whether the application should be made to the Vice Chancellor, to whose Court the cause was attached, or to the Master of the Rolls, who granted the injunction. Mr. Blunt applied to the Lord Chancellor, ex parte, that the motion might be heard before the Master of the Rolls. |