1843.-Symons v. James.

the executors with the payment of his debts and funeral expences. It appears to me in this case to be equally manifest that he

had not that intention.

The next question is as to the ultimate gift or gifts to the two grandsons contained in the will in these words :-" And as to, for and concerning all my messuages &c." [His Honor here read the last devise in the will, as before stated.(a)]

This gift, or set of gifts, is specific of course, though also *in a sense residuary, so far as real estate is con- [*311] cerned, and is residuary, but contended to be also specific,

as far as personal estate is concerned. It may be observed, however, that it has not been alleged, and I do not understand, that the testator had any real or leasehold property not situate in the county of Somerset.

As to the real estate, under these circumstances, having consulted the authorities to which I was referred and some others, I am of opinion, having regard to the whole will, that the gift must be treated as, for all purposes, specific-carrying with it the same privileges and benefits as the other specific gifts of real estate which the will contains. The question whether the chattel leaseholds in Somersetshire, including in this gift, are to be considered as given specifically, or merely as part of the residue, may be of some difficulty.

The construction on which the solution of this question depends must of course be gathered from a view of the whole will; and, taking it altogether, I am of opinion that these chattel leaseholds were meant to be given specifically, and ought, for every purpose and in every view, to be so treated.

I have before said that all the costs, and costs, charges, and expenses of the suit to the present time, so far as they have been, or shall now be directed to be taxed, ought to be apportioned among the different portions of the testator's property to which they have related, or by which they have been occasioned respectively, unless a different course has in any former stage of the cause been directed without reservation. If that has been done, I of course must not disturb it.

1843.-Symons v. James.

DECLARE that the East Brent mortgage is to be borne by the East Brent estate exclusively, and that, subject to that exception, the personal estate, not specifically bequeathed, ought to be applied in payment of the mortgages and other specialty debts of the testator, so far as it will extend; and it appearing that such personal [*312] estate is insufficient for that purpose, let the same be applied rateably in discharge of the several mortgages and other specialty debts. Declare that to the extent to which the mortgage debts shall not be satisfied out of such personal estate, each devised estate must defray the residue of the mortgage debts charged on it. Declare that the deficiency of the specialty debts, not being mortgage debts, and the deficiency of the simple contract debts ought to be borne by the several devised estates, and the specifically bequeathed personal estate rateably. Let the Master apportion the amount to be so contributed between the several properties so liable to contribute.

1843: April 21st.

PETO V. GARDNER.

Residuary personal estate was given by a will to such of the children of P. as should be living at his death, in equal shares. At the death of the testator there were five children of P., and no more, four of whom being adults entered into an agreement to the effect that, as amongst themselves, their respective shares, and any share that might accrue to them by the death of their infant sister, should be considered vested in them immediately, notwithstanding P. was living. After this, two of the children settled their respective interests in favor of their issue, who were minors. Upon the remaining child coming of age she was desirous to join in the arrangement, which the Master found would be beneficial to all parties. The Court, however, declined, on the ground of want of jurisdiction, to make a decree for carrying the arrangement into execution.

HENRY PETO, by his will, dated the 13th September, 1830, and executed so as to pass freehold estates, after giving various pecuniary and specific legacies, gave and devised unto Thomas Grisell, Samuel Moreton Peto, and Edward Gardner, their heirs, executors, administrators, and assigns, all his freehold, copyhold, and leasehold messuages, lands, tenements, hereditaments, and premises (except certain leaseholds particularly mentioned,) upon trust, at the discretion of his trustees, to make sale thereof, and after payment thereout of his debts, legacies, funeral and testamentary expenses, to invest the residue of the proceeds of such sale in the Government funds, and to stand possessed there

1843-Peto v. Gardner.

of in trust to pay certain annuities given by the will; and as to all the rest, residue, and remainder of his estate and effects whatsoever, including the produce of the sale of his freehold, copyhold, and leasehold estates not by him thereinbefore disposed of, the testator directed that it should be at his decease divided, or considered as divided into five equal parts; and he thereby gave and bequeathed one-fifth part thereof unto, between, and amongst *all and every the then present children of his [*313] brother, William Peto, the elder, who should be living at the time of the decease of the said William Peto, but not to be transferable and paid to such issue until after his decease; and the testator appointed the before-named Thomas Grisell, Samuel Moreton Peto, and Edward Gardner, the executors of his will.

At the time of the death of the testator, there were five children, and no more, of William Peto, the elder, namely the beforenamed Samuel Moreton Peto, William Peto the younger, Sophia, James, and Ann.

By an indenture, dated the 31st March, 1838, and made between the four first named of the five children, Ann being then an infant, reciting the will of the testator, and that, in order to prevent loss to the issue and estate of such of the said four adult children of William Peto, the elder, parties thereto, as might happen to die in his lifetime, and to place them all, whether some of them should so die, or all of them happen to survive him, upon the same footing in respect to all the interests to be eventually taken by them under the will, and including such further share as might possibly fall in and accrue upon the decease of their infant sister Ann in their father's lifetime, the said four children had agreed as between themselves, and as far as regarded their own respective rights and interests under the will, to consider their interests thereunder, as at the date of the present indenture, not contingent but actually vested, and that the circumstance or fact of the death of any of them in the lifetime of their father should not prevent their respective shares in the said one-fifth part of the testator's residuary estate from vesting in the representatives of the deceased, as part of their, his, or her estate it was witnessed that for establishing the said agreement, and in consideration of the mutual expectant benefit of

1843-Peto v. Gardner.

the chance of survivorship as between the parties thereto, in case any one or more of them should happen to die in [*314] the *lifetime of the said William Peto, the elder, the share or shares of the parties or party so dying should not survive and accrue to and for the benefit of such of the said four children parties thereto as might outlive their father, but should devolve to the representatives and assigns of the deceased children or child as part of their, his, or her estate, in the same manner as if the shares had vested in interest in all four of the parties thereto at the time of the testator's death, and had not been made contingent by the death of any of the said children, parties thereto, in the lifetime of their said father; and that the survivors or survivor of such children, parties thereto, who should happen to outlive their said father, should be con-. sidered as trustees or a trustee for the representatives or assigns of the deceased children or child, parties or a party thereto, of and so far as regarded the shares or share of such deceased children or child, parties or a party thereto, of and so far as regarded the shares or share of such deceased children or child, and including such shares or share as might accrue upon the decease of any of the said five children, whether infants or adult, as they, he, or she should have been entitled to had they, he, or she survived their said father.

By an indenture of settlement, dated the 2nd April, 1838, and made between Sophia Peto of the one part, and the before-named Thomas Grisell and Samuel Moreton Peto of the other part, reciting the will of the testator, and the last stated indenture, all the presumptive and expectant share of Sophia Peto in the onefifth part of the testator's residuary estate was assigned to the parties thereto of the second part, their executors, administrators, and assigns, as to one moiety in trust for the said Sophia Peto and her assigns, for her own sole and separate use and benefit, free from the debts of any after-taken husband, and subject to her appointment, notwithstanding any future coverture, and in default of such appointment upon the same trusts as the other moiety; and as to the other moiety, upon certain trusts [*315] for the benefit of herself and *her issue, in the event of her marriage, in strict settlement.

1843.-Peto v. Gardner.

In October, 1839, Sophia Peto married William French, and there were issue of the marriage two children.

By an indenture of settlement, dated the 3rd April, 1841, and made between Samuel Moreton Peto of the first part, Mary Peto his wife of the second part, and E. B. Gardner, and James Taylor of the third part, reciting the will, the indenture of the 31st March, 1838, and the desire of S. M. Peto, of making a more competent provision for his wife, it was witnessed that, for effectuating such desire, all the expectant and presumptive share, as well original as accruing, of the said S. M. Peto, in the one-fifth part of the testator's residuary property was assigned to the parties of the third part, upon trust, to invest &c., and pay the dividends to Mary Peto, for her life, for her separate use, and after her decease to assign and transfer the capital to such persons as she should appoint, and, in default of appointment, to her next of kin.

Mary Peto died in May 1842, without having executed her power of appointment under the last mentioned deed, leaving four children by her husband S. M. Peto.

In January, 1842, Ann Peto, who had then lately attained the age of twenty-one years, joined with her brothers William and James, in the execution of a deed to the like purport and effect, as to their respective interests under the will, as that of the 31st March 1838; reserving however to the last-mentioned deed its full operation.

The present bill was filed by the infant children of Samuel Moreton Peto and Sophia French, against the trustees under the testator's will, the trustees of the settlements, and the children of William Peto the elder, for the purpose, if possible, of obtaining a decree for carrying the deed of the 31st March, 1838, into execution.

It having been referred to the Master to inquire whether the arrangement between the parties would be *bene- [*316] ficial to them, he by his report found that the arrangement between the several parties was incomplete, by reason of Ann Peto not having attained her age of 21 years when the agreement of the 31st March, 1838, was made and executed, in consequence whereof she could not be a party to such agreement.