WILL—continued. 21. A recovery after a will, though no intention to revoke, is a revocation. Page 430

436

22. A covenant may be a revocation of a will. 23. Devise, subject to a term of 1000 years, to A. in strict settlement; remainder to B. in strict settlement; and after other limitations in tail, remainder upon trust to be sold: the trust of the term was to raise 40007, to be applied first to debts, legacies, &c.; the rents, profits, and emoluments, arising, growing or received, from the estate real and personal to be applied to debts and legacies, and afterwards to be an aggregate fund and attend the inheritance; the interest of the 40007. to be paid out of the rents and profits of the estates in the term; the rents and profits to accumulate, till one of the devisees should attain 21; then to be paid to him: by codicil, the testator reciting the trust to sell bequeathed part of the produce, and gave all the residue, and all the residue of his personal estate not disposed of by his will, to his legatees: the residue of the money raised under the term and of the personal estate is to attend the inheritance; and the interest is payable to the tenant for life, the principal to the first tenant in tail. Sheldon v. Barnes.

444 24. Land devised to be sold; the produce to be applied as after mentioned if no disposition is made, the heir shall take.

447 25. Testator created a term for debts and legacies, and gave 1000l. to his niece to be paid immediately after his decease, if he should be then married; if not, the interest of the said legacy to be paid her for life, to be calculated and paid to the day of her death or marriage; if she should die unmarried, the legacy to lapse for the benefit of the estate; and by codicil he gave her 2001. in addition to what he had given her by the will: Held, that the additional legacy is to be raised out of the same fund, and subject to the same conditions; and

WILL-continued.

the legatee having married after the testator's death is entitled. Crowder v. Clowes. Page 449 26. A legacy substituted for another shall be raised out of the same fund and subject to the same conditions.

450

27. Devise of lands, tenements, and hereditaments, subject to a term of 11 years in trust to receive the rents, issues and profits, of the premises, that from time to time should accrue and become due, and dispose, &c.: an advowson in gross passes; and a sale of the next presentation within the term by direction and for the benefit of the cestuy que trust was established. Earl of Albemarle v.

Rogers.

477

28. Bequest to the use and behoof of A. and in case of her decease, to the use and behoof of her children share and share alike: Held a life interest only in A. the capital to her children after her decease. Lord Douglas v. Chalmer. 501 29. Testator devised all his manors, messuages, lands, tenements, tithes and hereditaments, and all his real estate whatsoever " except what is hereinafter mentioned and devised" to the use of all his children successively in strict settlement; and gave two of them annuities, which he charged upon a rectory held by him under a lease for lives, which he directed to be renewed, if those two children or either should be living at his death, and that their lives or that of the survivor should be inserted in the new lease, and the fine paid out of his personal estate. He gave part of his personal estate specifically, and directed the residue to be laid out in land to be settled to the same uses as his real estate: but afterwards by a testamentary paper unattested he disposed of his personal otherwise : the heir contracted to sell the lease of the rectory; and upon a case directed to the Court of King's Bench on his bill for specific performance the certificate was, that the lease did not pass by the will, but devolved on the heir as special occupant: but the

WILL-continued.

Lord Chancellor considered that title too doubtful to be forced on a purchaser. An Act of Parliament was therefore obtained. Sheffield v. Lord Mulgrave. Page 526 30. Three annuities for a term of years bequeathed in trust for three children, A. B. and C. respectively for life; in case of the death of either leaving any child or children his or her annuity to be equally divided between such child or children share and share alike; in case of the death of either without issue, his or her annuity to go to the survivors or survivor of them equally share and share alike; with a limitation over in case of the deaths of all without issue as aforesaid A. died without issue; A.'s annuity went to B. and C. subject to the contingent limitations over, and upon B.'s death leaving children belongs in moieties absolutely to his administrator and C. Vandergucht v. Blake.

534

31. Testator devised freehold estate to his brother and his wife for their lives; remainder to A., his nephew, and the heirs male of his body; and for default of such issue to B. in the same manner; remainder over; he gave so much of the same estate as was leasehold, to his brother and his wife for so many years of the term as they or the survivor should live, and directed, that after the decease of the survivor the leasehold premises should from time to time be held and enjoyed and belong to the several persons in succession, who should for the time being be entitled to the freehold, so far as the rules of Jaw would admit, and gave the same direction as to the furniture of the mansion-house. By codicil reciting, that he had devised the freehold part after failure of issue male of A. to B. in tail male, &c., he revoked those limitations, and after failure of issue male of A. devised to others, and repeated the disposition he had made of the leasehold and furniture; A. takes the leasehold absolutely. Fordyce v. Ford. VOL. II.

536

WILL-continued.

32. A wrong description of a legatee will not defeat a legacy given to him by name. Standen v. Standen.

Page 589 33. Devise of real to be sold and the produce with the personal to testator's wife for life, with power to appoint a moiety by deed or will with two or more witnesses; the estate was not sold; the wife, having no other real estate, by will with three witnesses gave specific legacies, sonie described to have been her husband's, and all the rest, residue and remainder, of her estate and effects of what nature or kind soever, and whether real or personal, and all her plate, china, linen and other utensils, which she should be possessed of, interested in, or entitled to, at her decease; the power is executed by the residuary clause. Evidence of conversations with the person, who drew the will, to shew, the testatrix had no other real estate, rejected.

ib. 34. By marriage articles the husband. covenanted to convey to the use of himself for life; remainder in trust to secure an annuity to his wife for life in bar of dower; remainder to trustees for years to raise portions; remainder to the sons and daughters successively in tail; remainder to his own right heirs; afterwards he devised upon condition that he should have no issue; and after the will he, in pursuance of the articles, conveyed to trustees and their heirs to the uses and trusts of the articles; the will is not revoked. Williams v. Owens.

595

40. Articles to sell a devised estate are a revocation in equity, but not at law. 601 41. Testator devised all his real estate to his sister for life; remainder to her children as she should appoint; for want of appointment, to all her children and their heirs as tenants in common. His sister having two daughters, by a codicil, declared to be a codicil to his will not then at hand, he gave one of them an annuity; and directing his annuities to be paid out of his 3 per cent. stock, he charged them on his real. estate in case of a deficiency: and directing the residue of his personal estate to be invested in freehold lands and hereditaments, he recommended to his sister to settle and convey or join with her husband in settling and conveying all his estates and property, which she might derive from him after his decease, to the use of her two daughters for life, in such parts, shares, and proportions, as she should approve, with remainder to their respective issue, and cross remainders and the usual powers and clauses in strict settlement. The testator's sister died in his life; and her two daughters were his co-heiresses. Some real estates were purchased between the execution of the will and codicil. As to the real estate the will is not revoked, but is republished, by the codicil; and the two nieces are entitled to all the real estates and to those directed to be purchased as tenants in common in fee. Meggison v. Moore. 42. Devise to the heir at law and his issue male in strict settlement; remainder in trust to be sold and the money to be distributed among cer

630

WILL-continued.

tain persons or the survivors or survivor of them, and that the share of one should previous to her marriage be settled upon her for life, and after her death upon her issue, in default of issue upon her right heirs; the produce of the sale is to be considered as personal, and vests in the survivors at the death of the tenant for life without issue male. A settlement in trust for the husband for life, then for the wife for life, then for the children, as they should appoint, in default of appointment, equally; if no children, according to their joint appointment; in default thereof to the husband, his executors, &c. is a sufficient execution of the direction in the will. Brograve v. Winder.

Page 634 43. Witness to a will, not interested at the execution, and death of the testator, is competent, though inte rested at his examination. Brograve v. Winder. ib. 44. Testator gave the interest of a bill

of exchange on the East India Company to his wife for life, and directed, that after her death the bill should be sold, and the money divided among certain persons with survivorship in case of the death of any in her life. The bill, which constituted the bulk of the testator's property, was paid in his life; that was not an ademption of the legacy. Coleman v. Coleman. 639 45. Testator by will duly attested gave an annuity to his daughter charged on his real estate in aid of his personal; by codicil not attested he gave his real and personal estate to his mother for life; during her life the personal estate is discharged from the annuity; but it remains a charge on the real. Buckeridge v. Ingram. 46. Testator gave his personal estate to his mother for life, remainder to his children, on condition that his mother should see the fines for renewal of a lease and the interest of a mortgage paid, and be con* Quare the last point. See the note, p. 639.

652

WILL-continued.

case it vested in those living at the death of their mother only. Spencer v. Bullock. Page 687 50. Legacy by a grand-father in trust for the five children by name, and all and every the child and children of his son, equally; the shares to be assigned at 21, or upon marriage of the daughters, with power to advance money for putting out all and every or any of the sons to business. The first attaining 21 is entitled to receive his share then. Prescott v. Long. See Charity, 3. Construction of InExoneration, 1. Jurisdiction, 3. Representatives, 6. Trust, 6, 7. WITNESS.-See Will, 42. WRIT OF DOWER.-See Dower, 2,

struments.

3, 4.

690