the face of the will, his legatees are bound either to give effect to it, or to relinquish all other benefits intended for them by the will, in conformity with the general rule, that no one can take under and against an instrument. There is sufficient on this will to create a precatory trust; the objects and subject are precise, and the words especially request" are of sufficient force, according to the authorities, to create a binding obligation on the legatees. In Wynne v. Hawkins (a), the words "not doubting" were held sufficient; so in Pierson v. Garnet (b), the words "my dying request," and again in Eade v. Eade (c), the expression " requesting," and in Wood v. Cox (d), the words "trusting and wholly confiding" were held sufficient. Here the words are, "I especially request." It has been settled, that an appointment to a person not an object of a power and a gift by the same instrument of the testator's own property to an object of such power will create a case for election; Whistler v. Webster (e) is precisely in point; there a father having a power to appoint to children, by his will appointed to grandchildren, and gave legacies to the children, it was held, that the appointment was bad, but that the children, having legacies, must elect. The Master of the Rolls there refers to the true principle: "That no man shall claim any benefit under a will, without conforming, as far as he is able, and giving effect to everything contained in it, whereby any disposition is made shewing an intention that such a thing shall take place." (a) 1 Bro. C C. 179. (b) 2 Bro. C C. 38. (c) 5 Mad. 118. In (d) 1 Keen, 317., and 2 Myl. & Cr. 684. (e) 2 Ves. junior, 367. p. 370. 1851. BLACKET v. LAMB. 1851. BLACKET V. LAMB. In Carver v. Bowles (a), there was no distinct absolute bequest of property which the testator had no power of disposing, but only a bequest "so far as he lawfully could," which is insufficient to create a case of election; Church v. Kemble (b), Kampf v. Jones raised no question of election. Mr. R. Palmer, in reply. Lewis v. King (c) and Laurie v. Clutton (d) were also cited. The MASTER of the ROLLS. I will look into the authorities. Dec. 1. The MASTER of the ROLLS. The question in this case arises upon the words of the will of a testator of the name of George Lamb. The testator had, under an indenture bearing date the 14th of November 1815, a power of appointing amongst the children of his marriage a sum of 3000% secured by a policy of assurance. This power he executed by will, bearing date the 21st of February 1844, in which he recites the power, and proceeds to execute it in favour of the children, the objects of the power; and having done so, he adds certain precatory words, requesting them to leave the capital of the shares so appointed to them to their children, that is, to the grandchildren of the testator. (a) 2 Russ. & Myl. 301. (c) 2 Bro. C. C. 600. The The question is, whether these words of request raise a question of election, by creating a trust, which a court of equity will either compel the children to execute in favour of the grandchildren, or if they decline to do so, will compel them to relinquish the legacies they take under the will, in order that those legacies may be applied in making compensation to the disappointed grandchildren. It is to be observed, that the testator distinctly recites the terms of the power he was about to execute; he had, therefore, present to his mind, that he could not legally execute this power in favour of his grandchildren and having this present to his mind, and having made an appointment which is proper and complete, of the whole fund amongst his children, he adds these precatory words,-viz. " I especially request each of my six children will not sink into or spend their respective shares thereof, but leave them for the benefit of their respective children; and if any of them have no children, then to leave the same, so that their shares may go in the same way as my general estate and effects are hereby limited." I am of opinion that the question I have to determine resolves itself into this: whether these words amount to a direct appointment in favour of the grandchildren. If they do amount to such an appointment, there is not, I think, any doubt, but that a case of election is raised. It would then be simply an instance of a man, who, being aware that grandchildren are not. objects of the power, does, deliberately and expressly, appoint to them what they could not take by virtue of that appointment, and which, if unappointed, would belong to other persons. In such circumstances, the Master of the Rolls, in the case of Whistler v. Web 1851. BLACKET v. LAMB. ster 1851. BLACKET 1. LAMB. -- ster (a) decided, that a case of election arose; a decision In this view of the matter, the case of Carver v. Bowles (b), is very material: it is perfectly consistent with Whistler v. Webster, and well illustrates the prin ciple. The testator there had a power of appointing among his children, and, after making such an appointment, he superadded words to this effect:-"But I do hereby will and declare, that the share appointed to my daughters is so appointed, and I do hereby, so far as I lawfully can, appoint, that the same shall be held by my executors for my daughters and their issue, as are hereinafter expressed concerning the share of my daughters of my residuary estate." These had been given to the daughters for life with remainder to their children. The real question there, as it is here, was, whether the appointment to the daughters was absolute ог (a) 2 Ves. jun. 367. (b) 2 R. & M. p. 306. or limited; and whether the grandchildren were included in the words of appointment used by the testator, which were qualified to be "as far as he lawfully or equitably might or could" do so: Sir John Leach held, that the words of appointment were sufficient to vest the shares absolutely in the daughters; that the attempt to restrict their interest by limitation to their issue, being inoperative, did not cut down the absolute appointment; and that, inasmuch as this attempt was inoperative and void, it raised no case of election. The authority of Whistler v. Webster was cited, and not contested. This decision in Carver v. Bowles shews the principle by which these cases should be tested, and applying it here, brings it back to the question I stated in the outset, whether the words of appointment here used by the testator are sufficient to vest the shares absolutely in the children, with a superadded condition not warranted by the power attached to it, or whether the superadded words do constitute, in terms, an absolute unconditional appointment in favour of the grandchildren. If this be the correct mode of stating the question, it does, in fact, decide the point, because the superadded words used by the testator here, neither are nor profess to be any appointment over the fund itself; but they purport to raise an obligation on the conscience of the person taking the benefit of the gift, to transfer that benefit, after his decease, to his children. I am of opinion, that if the words had been used by the testator with reference to a fund which was wholly within his own control to deal with as he might think fit, these words would have created a trust, and that his children, taking the gifts under the will of the testator, would 1851. BLACKET t. LAMB. |