Bequest-Exoneration.

Bequest of a particular fund "for payment of debts and legacies given by my will and former codicil," is no exoneration of the rest of the testator's estate from its liabilities; nor does it create any exemption of other parts of the assets not specifically bequeathed. General bequest of the residue is a legacy.

This cause came on, on further directions, when it appeared, that William Arundell, deceased, having by his will, and codicil altering his will, given "all the rest and residue of his estate and effects whatsoever, unto the trustee or trustees for the time being of the Queen's Lying-in Hospital;" and having appointed John Bayley and the defendant Stephen Moore his executors, made a second codicil, bearing date the 24th of January 1826, in the following words-" Whereas, by a codicil to my will, I have appointed Mr. John Bayley to be one of my executors, I hereby revoke such appointment; and I give and devise all the freehold messuages, lands, tenements, and hereditaments, which I am entitled to, or possessed of, by way NEW SERIES, II.-CHANC.

of mortgage or otherwise, unto and to the use of Mr. Stephen Moore, his heirs and assigns for ever, upon trust, when he or they shall find it expedient, to sell and dispose of the same, together or in parcels, and by public sale or private contract, and to apply the produce of such sale or sales to the payment of the debts and legacies given by my will and former codicils," and the receipts of the said trustee were to be a good discharge.

By his will and first codicil, the testator had given several small legacies; and he had by his will given the residue of his personal estate upon trust, for the following charitable purposes in perpetuity;" which trusts were to invest in the funds, and lay out the yearly dividends in the purchase of coals for the poor of certain parishes named by him; and by the first codicil, that bequest was revoked, and the residue of his personal estate and effects was given "to the trustees of the Queen's Lying-in Charity."

It was not known who was the testator's heir-at-law or next of kin, and therefore the Attorney General was made a party. The only freehold property of the testator consisted of a house, of which he was mortgagee in possession, and an annuity for three lives, charged on lands, and

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payable to the testator, his executors, and administrators.

The only question was, whether the effect of the second codicil was not to exonerate the general personal estate from the payment of debts and legacies, to the extent of the property devised by the second codicil, and until that was exhausted.

This question arose between the plaintiffs, the trustees of the Queen Charlotte's Lying-in Hospital, and the Crown, claiming, for want of an heir or next of kin, what was undisposed of.

Mr. Tinney and Mr. Lloyd, for the plaintiffs, cited Browne v. Groombridge (1), and Choat v. Yeats (2). The principle established by the cases on the present question is, that there must appear a desire to charge the particular estate, and to discharge the general personal estate; and that principle was acted upon in the cited cases. Why does the testator direct this property to be sold, except for the purpose of exonerating his personal estate? The property was before subject to the payment of debts; and the testator, having by his first codicil given the residue of his personál estate to a charity, directs the payment of his debts out of such part of his property, viz. the mortgage in fee and the annuity charged on land, as could not be bequeathed to charitable purposes under 9 Geo. 2. c. 36; and if this be not the intention, there could be no object in making the codicil.

Mr. Wray, for the Crown, insisted that there was no intention to exonerate the general personal estate manifested.

The MASTER OF THE ROLLS.-Does not this codicil direct the executor to apply the property to the general purposes of the will? The devise in the codicil is for the payment not of debts only, but also of legacies. Is not the bequest of the residue a legacy? My opinion is very strong against the claim of the charity. There is no specific gift of the personal estate; the gift of the residue is itself a legacy; and the property in question being

(1) 4 Madd. 495. (2) 1 Jac. & Walk. 102.

Bequest-Uncertainty.

Gift over, on the happening of a certain contingency," to such persons as shall then be entitled to my personal estate."

When the event happened, the personal estate had been all distributed. Gift over void for uncertainty.

Sir Charles Frederick, by his will, dated the 20th of September 1784, gave an annuity to which he was entitled during the life of his son, Edward B. Frederick (one of the defendants), upon trust, that his executors would pay the same to his daughter Lucy during her life, if Edward should live so long; and then in these words-" but in case my said son Edward. shall survive my said daughter Lucy, I will that the said trustees, after my said daughter's decease, do receive the said lastmentioned annuity or interest during my said son Edward's life, and pay and apply the same amongst the child or children, if more than one, of my daughter Lucy, share and share alike; but if she shall die without leaving any child or children, or such child or children shall die in the lifetime of my said son Edward, then I will that my said executors do from thenceforth pay the said annuity to and amongst such person or persons as shall be then entitled to my personal estate."

The testator further, by his will, gave the residue of the money arising from the sale of his freehold, copyhold, leasehold, and other personal estate, between his children equally; the shares of the sons to be paid; but the shares of the daughters,

Augusta and Lucy, to be invested in the names of his executors, the interest to be paid to them during their lives, for their sole and separate use, and after the decease of them respectively, in these words"Upon trust, that my said executors do receive the interest or dividends of the shares of my said daughters respectively, and apply the same, or so much thereof as shall be sufficient, in the maintenance and education of their respective children, if more than one, in such shares and proportions as may be deemed requisite, until such children, if more than one, shall respectively attain the age of twenty-one, and then divide the principal among such children respectively as shall attain that age; but if all such child or children of my said daughters respectively, or both of them shall die under the age of twentyone; then upon trust, that my said executors shall and do pay the said trustmoney, and the interest and proceeds thereof, to such person or persons as shall then be entitled to my personal estate."

Edward B. Frederick was the only surviving child of the testator.

Augusta, one of the daughters, died in 1806, leaving five children, defendants; Lucy, the other daughter, died in September 1831, leaving no children; the defendant, Edward B. Frederick, was her sole legal personal representative.

The plaintiffs were the representatives of the testator, and of one of the deceased sons; and the bill was filed for the direction of the Court as to Lucy's share.

The children of Augusta claimed to be entitled to the whole of Lucy's share.

Edward B. Frederick insisted, that Lucy's share was divisible, either amongst the testator's next of kin living at the time of his death, or, amongst his next of kin living at the time of the death of Lucy.

Sir E. Sugden and Mr. Stinton, for the plaintiffs.

Mr. Knight, Mr. Chandless, and Mr. Treslove, were for the several defendants.

The VICE CHANCELLOR.-The true construction is, that if either of the daughters died without issue, or if both of them died, then the testator meant to give over the share of one in one event, and the

share of the other in the other event. To make the will at all consistent, we must understand the testator to have meant, that the persons who should take the share of Lucy dying without issue, should be the same as those who should take the annuity upon the death of Lucy during the life of Edward. But then the character of those persons is to be determined by something when the contingency happens, namely, by their being entitled to his personal estate. The testator could only have meant by the words "then entitled to my personal estate," such persons as would have been entitled to his personal estate, in case it had not all been disposed of when the contingency happened: but when the event happened, his property had all been distributed; and I am of opinion, that an intestacy must be declared as to Lucy's share.

M. R.

BADHAM v. MEE.

Nov. 12. S Extinguishment of Power-Bankruptcy. A, tenant for life, with a power of appointment among his children, of freeholds, with remainder in default of appointment to his sons successively in tail, with reversion to A. in fee; the power cannot after A's bankruptcy be exercised by him so as to affect the reversion in fee, which is vested in the assignees of his estate.

This cause came on this day, on further directions. On the hearing, a case had been directed for the opinion of the Court of Common Pleas (1), stating in effect, that Patience Mee, widow, deceased, and Richard Mee the elder, or one of them, being seised in fee-simple of certain lands and hereditaments, by indentures of lease and release, of 24th and 25th of April 1794, conveyed the premises in question to trustees, to the use of Richard Mee for life, with remainder to the use of trustees, to preserve contingent remainders; with remainder to the use of such one or more of the son or sons of Richard Mee, on the body of his then intended wife, Margaret Durant, and in such shares and proportions, and for such estate and estates in fee-simple or otherwise, and subject to such charges, &c. as Richard Mee, by deed or will, to be executed and attested as therein mentioned, should appoint; with remainder to the use of the first and other sons of Richard Mee, on the body of Margaret Durant successively in tail general; with remainder to the use of the right heirs of Richard Mee for ever.

The intended marriage took effect, and Margaret Mee, formerly Durant, died, leaving Richard Mee the elder, and Richard Mee an eldest son, and three other children, her surviving. In 1798, Richard Mee the elder became a bankrupt, and the usual bargain and sale was made to his assignees of all his property, including the property in settlement.

The assignees agreed to sell the whole of their estate and interest in the lands in question to Patience Mee, the mother of Richard Mee the elder, and those lands

(1) 7 Bing. 695; s. c. 9 Law Journ. C.P. 213.

were accordingly conveyed by the assignees to the use of Patience Mee, her heirs and assigns.

In 1819, Richard Mee, the bankrupt, executed a deed-poll, whereby after reciting the creation of the power, and that there were four children of the marriage, and that Caroline Mee and Richard Mee, two of those children, had attained twentyone, he the said Richard Mee, in pursuance of the power in the indenture of April 1794 contained, did direct, limit, and appoint, that, after the decease of him, Richard Mee, the father, and the determination of his life estate, the said lands and hereditaments should remain to the use of the said Richard Mee, the son, his heirs and assigns for ever; nevertheless charged, and chargeable with such sum and sums of money as should become payable under the appointment thereinafter made, the same to be in satisfaction of the portions to which the younger children were, or might claim to be entitled under the indenture of the 25th of April 1794; Richard Mee then appointed 5,000l. to be raised out of the said estate, to be paid to the three younger children of Richard Mee the father, as therein mentioned. question for the opinion of the Court of Common Pleas was, "What estate, from and after the execution of the said deed of appointment, Richard Mee, the son, took in the said lands and hereditaments under the said deed of appointment, and the said deeds of the 24th and 25th of April 1794, or any or either of them."

The

The following certificate was sent :"We have heard this case argued by counsel, and have considered the same, and we are of opinion, that from and after the execution of the deed of appointment of the 2nd of January 1819, Richard Mee, the son, did not take any estate in the lands and hereditaments mentioned in the case under the said deed of appointment, but, under the deeds of the 24th and 25th of April 1794, took an estate tail in remainder, expectant on the determination of the life estate of his father."

Mr. Pemberton stated the circumstances of the case, and that the question in the cause depended on the decision to which this Court should come, as to the effect of

the bankruptcy of Richard Mee the elder, on the power given to him by the release of April 1794, on the existence or destruction of which the case hinged.

Mr. Tinney, in favour of the appointment, argued, that this was a power appendant, as to the bankrupt's estate in reversion, and collateral or in gross, as to the intermediate estates tail in the sons. The principle on which the Judges of the Court of Common Pleas decided the case submitted to them was, that the appointment of the fee did affect the reversion vested in the assignees of the bankrupt, which we do not contend for. If the bankrupt had made no appointment, the estate would have stood limited thus, to the bankrupt for life, with successive estates tail to his two sons, with the reversion to the bankrupt, his heirs and assigns; and the life-estate and reversion would of course be vested in the assignees. And he submitted, the appointment would be good during the continuance of the estates tail, and so long as there was issue of the two sons in esse. The bargain and sale of commissioners does no more than an innocent conveyance by the bankrupt, and the execution of the power by the deed-poll of 1819, would merely give a fee, determinable on the failure of issue of the two sons of the bankrupt; and this appointment is therefore good in form, and, except so far as it defeats the estate of the assignees it is good in substance; and until the failure of the issue in tail, the assignees have no right to interfere. At common law, it was asked, whether a base fee, with a limitation over, would be good, and it was answered that it would not; whereas the base fee would be good, and the limitation over would be bad.

The MASTER OF THE ROLLS.-Is there any authority for saying that where there is a power of appointment in a bankrupt which may defeat the estate of the assignees of his estate, that power is good, unless it does defeat their interest. The question seems to depend upon that.

Mr. Tinney.-A power simply collateral cannot be destroyed; the principle of the cases seems to be, that the appointment is good, in so far as it does not defeat the interest of the assignees. The power will operate to all intents until it becomes in

consistent with the appointor's own rights, which have passed to the assignees.

Mr. Preston, in support of the appointment, after expressing his dissent from the principle of the decision in Smith v. Death (2), proceeded to argue, that if the power is here released, it must be through the effect of the act of law, and not of the act of the party; and the law becomes the instrument of injustice. The spirit of the bankrupt laws is to give the creditors all that the debtor could in any way claim, but their operation must not be extended any further. The power here, is a power of nomination, or selection, which is not in any respect beneficial to the bankrupt. In Smith v. Death, there was a power coupled with an interest, of which the appointor might therefore divest himself. In consequence of the decision in Thorpe v. Goodall (3), that a bankrupt could not be compelled to execute an absolute power of appointment, in favour of his assignees, it was, by the 3 Geo. 4. c. 31. s. 3, which is continued by the 77th section of 6 Geo. 4, enacted, that all powers may be executed by the assignees of a bankrupt for the benefit of the creditors, in the same manner as the bankrupt might have executed the same. And since those acts, powers belonging to a bankrupt for his own benefit may be executed by the assignees for the benefit of creditors; but there is a distinction between a power of nomination and selection, such as this is, and powers by which the bankrupt might injure or affect his own rights. In Cunynghame v. Thurlow (4), a case lately before his Honour the Vice Chancellor, a father attempted by a release of a power of appointment given to him for the benefit of his children, to get for himself the share of a deceased child, which he, the father, would take, in default of appointment, as the son's representative; but the Court would not permit him to take the share, though they held the release of the power good, so that the share went as if there had been no appointment extending to it. In Jervis v. Tayleur (5), a father, tenant for life, and a son, remainder-man in tail, were declared bankrupts

(2) 5 Madd. 371.

(5) 17 Ves. 388; s. c. 1 Rose's Rep. 40. (4) 1 Russ. & Mylne, 436, n. (5) 3 Barn. & Ald. 557.