1851.-Myers v. Watson.

on the unpaid purchase-money, unless they were, forthwith, com pleted. I told the said William Potter, personally, from time to time, the application which those defendants were continually making to me and I urged upon him the necessity of the streets being made, as the parties were suffering for the want of them, and could not bring the land purchased by them into the market for building purposes. Mr. Potter told me that it was [*535] *not convenient to him, at that time, to make the streets.

In answer to the applications which the defendants, Richard Watson and Henry Watson, were continually making to me on the subject of the formation of the streets, I put them off as well as I could, and made general promises that they should be finished as soon as possible."

It seems to me impossible, on this evidence, to come to any other conclusion than that the defendants are stating their case truly, when they say that they entered into the contracts relying on assurances, made to them by Cole, that Potter would, himself, forthwith make certain of the larger streets for the common benefit of all the purchasers, and also, as an inducement to speculators to build, that he would, himself, at his own cost, erect a church. This being so, I think that the plaintiff, representing Potter and failing to do what Cole had engaged he would do, are not entitled to relief in this court.

His lordship, after observing upon some correspondence which took place between the parties and their solicitors, at the close of the year 1847, and which had been much relied on by the plain tiff's counsel as showing that the defence made by the defendants was an afterthought, concluded as follows:

I see nothing in what took place leading to the conclusion that the defendants are untruly representing their case, when they say that they entered into the contract on the faith of the representations made by Cole; or that they waived any objection arising out of the non-fulfilment of what Cole then undertook should be done. On the whole, therefore, I am of opinion that it [*536] is satisfactorily *made out that the vendor, by his agent,

1851.-Humphrey v. Humphrey.

induced the defendants to enter into these contracts, on an assur ance that certain things material to their interests should be done by him; and that, having failed in performing what he had so engaged to do, his assignees are not entitled to relief in this court; and so that their bill must be dismissed, with costs. [1]

[1] A complainant who seeks for the specific performance of a contract or agreement, must show that he has performed or offered to perform on his part, the acts which formed the consideration of the alleged undertaking on the part of the defendant. Colson v. Thompson, 2 Wheaton's Rep. page 336.

HUMPHREY v. HUMPHREY.

Legacy.-Interest.-Will.-Construction.

1851: 21st and 26th March.

Testator gave the produce of his share and interest in his copartnership business, to his wife, and also the interest of the capital sum of 1,000l. for her sole use and benefit and free from the debts or control of any husband she might marry, and her receipt to be a sufficient discharge to his executors; and he gave all his furniture, plate, &c, to her absolutely.

Held, that the gift of the interest of the 1,000% passed the principal.

SAMUEL HUMPHREY, late of the city of London, made his will dated the 23d of August, 1844, and thereby, after reciting that he was carrying on business with Sutton Simpson and Charles Humphrey as isinglass merchants, and that, under a deed of copartnership entered into by the firm on the 2d day of March, 1841, he was entitled to a certain share or interest in the business, and that, in the deed, was contained a proviso that, in case of his death before the determination of the copartnership of seven years, the copartnership should continue, between his surviving partners and his executors, for a further period of six, nine or twelve calendar months, as might be by them agreed upon, to settle and adjust the copartnership accounts and estate; and that, until such copartnership *should be determin- [*537] ed, the surviving partners were to pay, unto such person

1851.-Humphrey v. Humphrey.

as he should direct, the sum of 41. weekly; he gave and be queathed the said sum of 41. weekly unto his wife, Sarah Ann Humphrey; and afterwards expressed himself in the following words: "As to the produce of my share or interest in the said copartnership business, moneys and premises, when the same shall be fully adjusted or disposed of, I direct that the produce thereof, and I give and bequeath the same unto my said wife, Sarah Ann Humphrey; and I also give and bequeath, to my said wife, the interest of the capital sum of 1,000l., for her sole use and benefit and free from the debts and control of any husband she may marry, and her receipt alone shall be a sufficient discharge to my executors. And I also give to her all my household furniture, plate, linen and china, absolutely: and to my daughter, Ann Fanny, now an infant, the sum of 500l. I also give and bequeath, unto my sister-in-law, Clara Humphrey, and my brothers-in-law, Frederick Humphrey and Horatio Humphrey, and to Samuel the son of John Humphrey, the sum of 1007. each, to be severally paid to them when and as they attain the age of twenty-one years. All the rest and residue of my personal estate and effects, subject to the payment of my just debts and funeral and testamentary expenses, I give and bequeath unto my brothers, Charles and John Wrainch Humphrey, equally between them."

The testator died on the 9th of October, 1844. Charles Humphrey, one of his brothers and residuary legatees, died in January, 1849, having bequeathed his residuary personal estate to John Wrainch Humphrey, and appointed him and Benjamin Humphrey his executors. J. Wrainch Humphrey died in May,

1849, intestate. The plaintiff, Jane Humphrey, was his [*538] administratrix. *The defendants to the bill were Ben

jamin Humphrey, and the testator's widow, and Joseph Billings, her second husband. The question was whether the bequest, in the testator's will, of the interest of the capital sum of 1,000l. to his wife, for her sole use and benefit, &c., gave her the absolute, or only a life-interest in that sum.

Mr. Malins and Mr. Swinburne, for the plaintiff, whose interest it was to contend that Mrs. Billings took only a life-interest in

1851.-Humphrey v. Humphrey.

the 1,000l., said: It has been, for some years, adopted as a rule, that an unlimited bequest of the interest or annual produce of personal estate, carries the principal, unless indications of a contrary intention can be discovered in the will: and such indications may be collected from any matter capable of affording an inference of intention not to give the principal, however extraneous to the particular bequest itself; such as other dispositions in the will quite foreign to it; or from the general character and effect of the whole will. Rawlins v. Jennings, (a) Clough v. Wynne.(b) Those cases show the general nature of the circumstances from which the inference of'intention may be drawn, and that any matter capable of suggesting an inference of intention not to give the principal, may be resorted to. Many such matters present themselves in this will. First, it appears, from the will itself, that the testator was a merchant carrying on business in the city of London; therefore, he necessarily knew the difference between interest and capital: secondly, the testator first makes an absolute bequest to his wife of the produce of his partnership property. Then, by another clause, he gives her the interest of the *capital sum of 1,000l.: and, im- [*539] mediately afterwards, he proceeds to give her his furniture, &c., and this he not only gives by a fresh clause, but he emphatically declares that he gives it her absolutely, just as a man who, by the immediately preceding bequest, had given only a partial interest, naturally would do. Thirdly, inasmuch as the testator must be taken to have known that the legacy, if of principal, would be payable at the end of one year from his own death, the disposition to his wife's separate use, shows that he must have contemplated her marrying again before the expiration of a year from his death; which it seems hardly reasonable to suppose. The more natural interpretation is that the separate use was intended, by the testator, to extend to the whole life of his wife, and to guard against marriage at any time. Fourthly, the testator proceeds to give two legacies of 500l. and 2007., and he does not give these sums as the interest of the capital sums of 500l. and 2007., nor as capital sums of 500l. and 2001., but simply

(a) 13 Ves. 39.

(b) 2 Madd. 188.

1851.-Humphrey v. Humphrey.

as sums of 500l. and 2007.; from which clearly arises an inference that, by the gift of the interest of the capital sum of 1,000l., he must have meant something different from the gift of 1,000l.

The learned counsel then reviewed all the cases in which a gift of income had been held to pass capital, and contended that the decisions in such of them as were subsequent to Elton v. Shephard, (a) and Philips v. Chamberlaine, (b) had proceeded upon a hasty and imperfect view of the grounds upon which those cases had been decided.

Mr. Stuart and Mr. Rudall, for the defendant, Benja[*540] min *Humphrey, whose interest was the same as the plaintiff's, took a distinction between a bequest of the dividends of a sum of stock, and a bequest of the interest of a sum of money, and relied on the expression in the will, "and her receipt alone," as implying that the bequest with reference to which those words were used, was intended for the personal and individual benefit of the legatee.

Mr. Bethell and Mr. Cole appeared for Mr. and Mrs. Billings.

THE VICE-CHANCELLOR:-An unlimited gift of the income of a fund, has been held to pass the capital too frequently for me to decide otherwise. [1]

It is true that the gift here is followed by the words, "for her

(a) 1 Bro. C. C. 532.

(b) 4 Ves. 51.

[1] A testator bequeathed as follows: "Two hundred and fifty-one shares of stock that I hold in the Great Western Turnpike Company, in the State of New York, to remain unsold, and the dividends arising thereon I direct to be equally divided be. tween my sons, J., D. and E.; my daughters, M., M., S. and D.; and my grandchildren, O., S., T." It was held that the turnpike stock was an absolute specific legacy to be enjoyed by the receipt of the dividends; and it was also held that the gift of the produce of a fund, without limit as to time, was a gift of the fund. Manning v. Craig et al., 3 Green's Ch. R. 436.