the above annuity of 2001. per annum unto my brother Captain James Henry Leckie, his heirs, administrators, and assigns, he or they paying the life assurance of 80l. 16s. 3d.; and on the death of Mrs. Fanny Burgess, I give and bequeath the above-named 2000l. insured upon her life unto my said brother Captain James Henry Leckie, his heirs, administrators, and assigns." The codicil also contained the following disposition, which was supposed to affect the construction of the prior gift. "I am also bound to pay Mrs. Jane Ann Gill an annuity of 150l. during her natural life, for which purpose I purchased a leasehold estate of some houses in Johnson's Court and St. Dunstan's Court, Fleet Street. On the death of the said Mrs. Jane Ann Gill, I give and bequeath unto my niece Mrs. Ann Robinson, &c., the above leasehold estate. I desire my executors to pay my brother R. Leckie the sum of 752l. Os. 3d. After paying this, and the annual assurance of 807. 16s. 3d. on the life of Mrs. Fanny Burgess, and any deficiency in the annuity for Mrs. Jane Ann Gill, I give and bequeath unto my husband John Penny, for his natural life, the interest of all my other property that now is or may come into my estate after death. At his death, I give and bequeath one half of the residue of the said property unto my brother Captain James Henry Leckie, the interest of the other half of the said property unto my niece Ann Robinson, &c., for her natural life. At her death I wish it to be divided among her children, on their becoming of age, viz. twenty-one years." The testatrix died in 1838. my Fanny Burgess died in 1842, leaving Remington Leckie her surviving. The Plaintiff James Henry Leckie claimed 1844. LECKIE v. HOGBEN. 1844. LECKIE v. HOGBEN. claimed the 2000l. which on the death of Fanny Burgess had been paid on the policy; and the question was, whether, under the codicil, he was so entitled, or whether the sum in question fell into the testatrix's residuary estate. Mr. Purvis and Mr. Wood, for the Plaintiff, contended, that on the death of Mrs. Fanny Burgess, the Plaintiff, in any event, became entitled to the policy. That the testatrix provided for the two alternatives, namely, of Mrs. Burgess dying in the lifetime of Remington, and Remington dying in the life of Mrs. Burgess; in the former, Remington's annuity was to be provided out of the estate; and in the latter, Mrs. Burgess's annuity was to go to the Plaintiff; and that then the testatrix thus proceeded: "And on the death of Mrs. Fanny Burgess" (meaning whenever it might happen), "I give and bequeath the 20007. insured upon her life unto my brother James." Mr. Kindersley and Mr. Freeling, and Mr. Turner and Mr. Busk contrà. The contingency on which the policy was given to the Plaintiff has not happened. The gift of it was only to take effect in the event of Remington dying in the life of Mrs. Burgess. The latter words, “and on the death," &c., are qualified by those immediately preceding, and they together form one sentence. The contingency extends to the whole limitation (a), otherwise the copulative "and" will, unnecessarily, be rejected. The 2000l. therefore forms part of the residue. Mr. Randell, for the executors. Mr. Purvis, in reply. The (a) Jarman on Wills, 755. The MASTER of the ROLLS. The testatrix recites, that at the death of Mrs. Fanny Burgess the sum of 2000l. or more may be recovered "to her estate ;" and in the event of Mrs. Fanny Burgess dying before Remington Leckie, she left it to the discretion of her executors to provide Remington his annuity from "her estate as they should think best. So that, the 20001. being recovered "to her estate," her executors were from "her estate" to provide for the annuity. She then begins a fresh paragraph. In the event of Remington's death before Mrs. Fanny Burgess, she gives the annuity to James Leckie, he paying the assurance on Mrs. Fanny Burgess's life, and on the death of Mrs. Fanny Burgess she gives the policy to James H. Leckie. There are two alternative events contemplated; Mrs. Burgess dying in the life of Remington, and Remington dying in the life of Mrs. Burgess. In the former, she or her estate will receive 2000l., and be still liable to pay Remington's annuity: she therefore says the 2000l. will 66 come to her estate;" and out of that estate she directs Remington's annuity to be provided for. In the other event, Remington's annuity ceases, but her estate remains entitled to the annuity of 2001. during Mrs. Burgess's life, and to the policy payable on her death. The testatrix says, in that event, let my brother James have the annuity, he keeping up the policy, and, on the determination of the annuity by the death of Mrs. Burgess, let him have the 2000l. payable on the policy. In one event, the money payable on the annuity was to fall into her estate, and contribute to pay the continuing annuity to her brother. In the other event, James was to have the annuity payable by Mrs. Burgess dur VOL. VII. LI ing 1844. LECKIE v. HOGBEN. 1844. LECKIE v. HOGBEN. ing its continuance, he keeping up the policy on her life; and on her death, he was to have the money payable on the policy. I am of opinion, that in the events which have happened, the Plaintiff is not entitled to the 20007. July 11, 12.15. YOUNG v. WHITE. WHITE v. YOUNG. A purchaser, vendor of an the principal, THE HE Plaintiff Young was entitled to the Radnage estate, subject to a mortgage to Mr. Eeles for 7001., and also subject to a mortgage for 2007. to Mr. Rumsey, the solicitor of Young, which latter, although alleged to have been paid, still remained untransferred. On the 11th of November 1840, Rumsey, with the authority of Young, entered into a written contract for the sale of the estate to the Defendant White for 920l., to be completed on or before the 25th of March then next, 4. employed on which day the purchase money was made payable. On the same day, Rumsey obtained payment from White, (professedly on account of the purchase money,) of two sums, of 300l. and 35l. B. to sell his estate, and receive the purchase money. B. sold it to C. An account was It afterwards settled between B. and C., whereby, after giving credit for monies paid on account of the purchase, and a private debt of 550l. due from B. to C., a small balance appeared due on account of the purchase money, which C then paid to B. A. afterwards, in ignorance of the arrangements between B. and C., executed the conveyance, and signed a receipt for the whole purchase money, which were handed over by B. to C. Held, that the arrangement for setting off B.'s private debt was invalid, and that C. was still liable to A. for the 550l. It appeared that in September 1839, and July 1840, White had, previously, advanced to Rumsey two sums, of 400l. and 150l., which, though disputed, the Court, upon the evidence in the causes, held to be the private debt of Rumsey. Rumsey acted as solicitor for both vendor and purchaser in the sale. On the 26th of March 1841, Rumsey made out two accounts, one of which he produced to White, and was headed "Mr. White in account with Mr. Rumsey," and therein, after charging White with the purchase money of 9207., and giving credit for the debts of 400l. and 150l., and the two sums of 300l. and 351. advanced at the date of the contract, and interest, it appeared, that 31. 14s. 6d. remained due from White on account of his purchase. White thereupon paid this balance to Rumsey. The conveyance of the estate had not, at that time, been executed. On the same day, (26th of March 1841), Rumsey wrote to Young, stating the net balance payable to him out of the 920l. purchase money to be 1237., after paying Eeles' mortgage, amounting to 770l., and Rumsey's bill of costs in the transaction, amounting to 277. He also stated, that if he (Young) would return the conveyance executed, "giving him (Rumsey) directions how he would have the balance disposed of, he, Rumsey, would pay it." He enclosed the account, and the bill of costs, in which he charged for the re-conveyance of Eeles' mortgage. The Plaintiff thereupon executed a common conveyance of the estate, from himself to White, and he signed a receipt, endorsed thereon, for the whole consideration money, and returned it to Rumsey. 1844. YOUNG ย. WHITE. |