1840. Robinson v. Addison.

mainder as to the tenant for life, whereas, in Pickering v. Pickering, the Lord Chancellor mainly founded his decision on the fact of a different residue being given to the widow during her life from that which was afterwards bequeathed to the son.

Mr. Pemberton and Mr. Prescott White appeared for the defendants Tremamondo and Castell and his wife, and Mr. Loftus Wigram, for Thomas William Flavell; but

THE MASTER OF THE ROLLS, without calling on them, said, that he could not declare this to be a case of conversion without striking out altogether, the word "rents," which was twice repeated in the will, and it appeared that there was no other property belonging to the testator, except the leaseholds, to which the term rents was applicable.

1840 May 9, June 27.

*ROBINSON v. ADDISON.

[515]

A testator having fifteen and a half Leeds and Liverpool canal shares, which by act of Parliament were to be deemed personal estate, bequeathed five and a half such canal shares to A., five such shares to B., and five such shares to C. There was no description or reference in the will to show that the testator intended to give the particular shares which he held at the date of his will. At his death he possessed no Leeds and Liverpool canal shares: Held, that the legacies were general, and not specific.

A canal was made under the authority of an act of Parliament, the lands for that purpose were purchased and vested in a corporation, but the shares therein were to be deemed to be personal estate, and transmissible as such, and were to be conveyed by bargain and sale: Held that the shares did not bear the character of realty, so as to make a bequest of them specific.

THE only question in this cause was, whether the legacies of certain shares in the Leeds and Liverpool canal bequeathed by the will of John Robinson, were to be considered as general or as specific legacies.

The canal was made under the authority of an act of Parliament passed in the tenth year of King George III. (10 G. 3, c. 114.) (a) The expense of the canal was defrayed by subscription; and by the twenty seventh section, the sum subscribed was divided and distinguished into shares which were vested in the subscribers and their several and respective executors, administrators, and assigns, proportionately to the sums they had respectively subPaige, 160,] all which are in favor of conversion. Holland v. Hughes, 16 Ves. 111, and 3 Mer. 685, (1809 ;) Vincent v. Newcombe, 1 Younge, 599, (1832 ;) Collins v. Collins, 2 Myl. & K. 703, (1833 ;) Alcock v. Sloper, 2 Myl. & K. 699, (1833; Bethune v. Kennedy, 1 Myl. & Cr. 114, (1835 ;) Pickering v. Pickering, ante, 31, (1839 ;) affirmed, 4 Myl. & Cr. 289; D'Aglie v. Fryer, V. C., Feb. 19, (1841 ;) [Vaughan v. Buck, 1 Phillips, 75,] in all which the decision was against conversion. In Gibson v. Bott, 7 Ves. 89, (1802 ;) and Dimes v. Scott, 4 Russ 195, (1828 ;) there was an express direction to convert. [See further ante, 57, n. 2. 10 Sim. 638, n. 1, 2. Ibid 639, n. 2.]

(a) Additional powers were given by the 23 G. 3, c. 47, the 38 G. 3, c. 65, the 54 G. 3, c. 94, and the 59 G. 3, c. 105, but no alteration was made in the tenure of the shares.

1849.-Robinson v. Addison.

scribed; and all and every such shares were to be deemed and taken to be personal estate, and to be transmissible as such. The form of conveyance was by bargain and sale.

The testator at the date of his will, (the 25th of October, 1819,) was entitled to fifteen and a half of those shares, and by his will, after devising his estate at Althorne to Joshua Robinson and James Addison in fee, in [*516] trust for the use of his son John Robinson for life, and *after his decease in trust to settle upon the eldest child of his son, and to divide the produce with various remainders, he expressed himself as follows:-" 1 also give and bequeath to the said Joshua Robinson and James Addison, their executors, administrators and assigns, five and a half shares in the Leeds and Liverpool canal, and all benefit and advantage thereof, upon trust ;" and he then declared a trust for the benefit of his son, and other trusts similar to those on which he had given his estate at Althorne; and having given a freehold house in Bond street for the benefit of his daughter, Jane Gibson, and her children; he also gave and bequeathed "five shares in the Leeds and Liverpool canal, and all benefit and advantage thereof to Joshua Robinson and James Addison, their executors, administrators and assigns, upon trust for the benefit of his said daughter Jane Gibson, and her children," in the same manner as before expressed respecting the freehold house in Bond street, so far as the nature of the estates and interests therein would apply. He afterwards gave and bequeathed "five shares in the Leeds and Liverpool canal, and all benefit and benefits thereof, unto Joshua Robinson and James Addison, their executors, administrators and assigns, upon trust for the benefit of his daughter Dorothy Jemima Robinson, and her children," in the same manner as before expressed concerning certain freehold houses in the Strand, and Dean street, which he had before given to the trustees for the benefit of his daughter Dorothy Jemima Robinson and her children; and he gave the residue in trust for his daughter Dorothy Jemima Robinson for life, with remainder to her children.

The testator died in October, 1824.

At different times between the date of his will, and the beginning [*517] of the month of June, 1820, the testator *sold all the fifteen and a half shares which he possessed at the date of his will, and at his death in the month of October, 1824, he was not possessed of any share in the canal. The plaintiffs by this bill insisted, that the bequests of the canal shares were general and not specific legacies; the bill prayed a declaration to that effect, and that they were entitled to have so much money as at the end of one year from the testator's decease would have been sufficient for the purchase of fifteen and a half shares, according to the current market price, with interest thereon.

The defendants entered into evidence, the object of which was to show that there was no current market price of these shares; that they were usually held as permanent investments, and that the sale of them was rare.

1840.-Robinson v. Addison.

That they were not commonly brought into the market, and could not therefore be purchased through brokers, like stock and other shares in public companies, but were generally disposed of by private arrangement between the parties.

Mr. Kindersley and Mr. Younge, for the plaintiffs, contended that these were general legacies, and that their value ought to be raised out of the general personal estate. They urged that the court at all times inclined towards the construction that legacies were general and not specific.. That legacies. of public funds, Bank or South Sea stock, or South Sea annuities were never held specific, although the testator happened to possess such funds, stock, or annuities at the time of making his will. That it required something to identify the particular stock held by the testator at the time to make

it specific, as the words, "my stock," or "the stock I *now possess," [*518] and this was wholly wanting in the present case; they cited Simmons v. Vallance,(a) Bronsdon v. Winter, (b) Innes v. Johnson,(c) note to Hinton v. Pinke,(d) and Bligh v. Brent.(e)

Mr. Pemberton, Mr. Sergeant Talfourd, and Mr. Bacon for the principal defendants, contended that the legacies were specific and had been adeemed by the sale.[1] That there was no general rule which made all bequests of stock general legacies, but that all such cases depended on the intention of the testator to be collected from the will. That here beyond doubt the testator contemplated leaving the particular shares he possessed at the time, or why dispose of fifteen and a half, the exact number which he was then entitled to?

Again, the shares savored of the realty and were personal estate no farther than the statute made them so; they passed by bargain and sale, and differed from the public stocks, which could be left to a charity, while these shares could not; that they were in the nature of chattels real, and the bequest of them had been adeemed by their sale by the testator in the same way as a bequest of a leasehold or of a particular mortgage or of turnpike tolls would be adeemed.

They cited Avelyn v. Ward,(g) Parrott v. Worsfold, (h) Ashton v. Ashton,(i) Pattison v. Pattison,(k) and Hayes v. Hayes.(l)

[*519]

*Mr. C. P. Cooper and Mr. W. H. Clarke for other defendants. THE MASTER OF THE ROLLS-My present impression is, that these are general legacies, and that neither the expressions in the will nor the difficulty in purchasing and selling the shares prevent that construction. The principal question, however, is whether the connection of the subject

1840.-Robinson v. Addison.

of the gift with real estate is such as to make the legacies specific.[1] I will examine the act of Parliament, and consider the point.

June 27.-THE MASTER OF THE ROLLS-In the gift the testator has used no words of description or reference, by which it appears that he meant to give the specific and particular shares which he then had.

Various arguments depending on the general scope and effect of the will, were used for the purpose of showing that the testator, in giving the precise number of shares which he possessed, must have had those shares in his contemplation and none other, and consequently must have meant specific gifts of them; and it was insisted upon that these shares were an interest in the land, and that although the act declares them to be personal estate, and transmissible as such, yet still they must be considered as chattels real, and that a legacy of an interest in them must be a specific legacy.

[*520]

*It was further agued that the shares of this canal were so rarely brought to market, that they could not be considered as transferable or purchasable for money, and could not be considered as gifts of particular things which the executors could purchase out of the assets.

It is, however, clear that the testator, if he had meant to give only the shares which he had, might have designated them as "his,"[2]—that the mere circumstance of the testator having, at the date of his will, a particular property, of equal amount to the bequests of the like property which he has given without designating it as the same, is not a ground upon which the court can conclude that the legacies are specific; and upon the whole context of the will, it does not appear to me, that the trusts on which the legacies are given, afford sufficient evidence that the testator meant those legacies to be specific.

There is no description or reference to show that he meant to give the particular shares which he had at the date of his will, nor any trust from which it can, as it appears to me, be concluded, that he must have meant only such shares as he had at the respective times of making his will and of his death.

As to the nature of the property, the canal and lands are vested in a corporation. The lands were purchased, and the canal constructed by means of money raised by subscriptions. The capital so raised is divided into 2600 shares, which are to be deemed personal estate, and to be transmissible as such; and the shares, though not frequently sold, are nevertheless occasionally bought and sold, and may be had for money, and the question is,

[1] A bequest of personal estate is not specific, merely because it is coupled with a devise of real estate, which is necessarily specific. Howe v. The Earl of Dartmouth, 7 Ves. 137.

[2] So, in Shuttleworth v. Greaves, 4 Myl. & Cr. 35. Stated, ante, 260, n. 1. The employment of the word “my,” had a material bearing upon the construction of a bequest of what the testator called "all my shares, &c." See further as to the word "my," Morrice v. Laugham, 11 Sim. 274, 275. It is obvious that "his," as used in the text, is merely a substitute for "my.” A testator always expressed himself in the first person singular.

1840.-England v. Downs.

whether the legacy, if it be not otherwise specific, is made so by reason of the nature of this *property. This, however, is not the [*521] gift of freehold or leasehold estates, or of a sum to be paid out of lands, or out of the produce of lands, in such a form as to make it specific. The testator had no share in the canal at the time of his death, though he had the means by which the shares might have been obtained; and conceiving that the words of his will are not such as to indicate that he meant to give the particular shares at the date of his will, it is to be considered what he did give. He intended his legatees to have so many canal shares, but not giving the specific shares that he had, he gave nothing which was distinguished or severed from the rest of the testator's estate, but in effect gave such an indefinite sum of money as would suffice to purchase so many shares as he had given, those shares being any such shares as could be purchased, and not certain particular and defined shares.

This bequest does not appear to me to have any of the qualities of a specific legacy, and I am therefore of opinion, that the three bequests of canal shares which are given by this will, are to be considered as general legacies.[1]

1840: June 4, 5, 8.

*ENGLAND v. Downs.

[*522]

If a woman entitled to property, during the treaty for marriage, represents to her intended husband that she is so entitled, that upon the marriage he will become entitled jure mariti, and if during the same treaty she clandestinely conveys away the property in such manner as to defeat his marital right, and secure to herself the separate use of it, and the concealment continues until the marriage, a fraud is thus practised on the husband, and he is entitled to relief. Direct misrepresentations, or wilful concealment with intent to deceive the husband, would entitle him to such relief; and if both the property and the mode of its conveyance pending the mar. riage treaty, be concealed from the intended husband, there is still a fraud practised on him ; cases have however occurred in which concealment, or rather the non-existence of communication to the husband, has not been held fraudulent; and whether fraud is made out must depend on the circumstances of each case.

As a conveyance made immediately before her marriage is prima facie good, it is to be impeached only by the proof of fraud.

In August a widow, having a second marriage in contemplation, settled her property on herself for life, for her separate use, with remainder to the children of her first marriage, and in October following she married. The settlement was prepared by her direction, without the privity or assent" of her then intended husband." In a suit to carry the settlement into execution, the second husband insisted on the settlement being a fraud on his marital rights, but it was not

[1] Vide 1 Beav. 410, n. 1. Ante, 260, n. 1. Sheffield v. The Earl of Coventry, 2 Russ. & M. 317. Banks v. Sladen, Taml. 407. Douglas v. Congreve, 1 Keen, 410. Kampf v. Jones, 2 Keen, 756. A testator bequeathed the sum of 40007. capital stock in the 37. per cent. consols, or in whatever of the government funds the same should be found invested: this was held to be a specific legacy. Hosking v. Nichols, 1 Yo. & Coll. C. C. 478.