cannot be set in opposition to his well-considered decision, come to after taking time to reflect, and against his own conviction, in Gosden v. Dotterill (1 M. & K. 56).

All that remains to consider is whether the context of this will in any way assists me in giving a wider meaning to the word "money." I have not here either of the two circumstances which have been relied on for that purpose in other cases. One of these is that, after directing payment of the testator's debts and legacies, the residue of his money has been given. Then, as the debts and legacies are to be paid out of the whole of his property, it has been considered that the description of his property by the words "residue of my money must mean residue of property ejusdem generis with that which was subject to the payment of debts, and, therefore, passed stock in the funds. Another class of cases has been where the Court has leant against an intestacy; and, in order to effect the intention of the testator, unless something else appeared in the will to control that construction, the Court has called that intention in aid to shew that, in disposing of his property, by the word "money" he meant to include stock. But in this will there is no charge of debts or legacies, nor is there any gift which could prevent this lady dying intestate as to some portion of the property which she would almost certainly have at the time of her death, such as furniture and similar articles, which could not by any intendment be included in the word "money." Therefore there is nothing on the face of the will to shew that she did intend to make a complete disposition of [378] the whole of her property. In that respect, therefore, some additional weight may be given to the supposition that this instrument was not intended to be a full and complete disposition of her property, from the probability that she intended to make such a disposition by some other instrument: because the word "money" could not, according to the ordinary usage of mankind, pass furniture, leaseholds or other property, so different to its usual meaning.

The only point remaining is this, which struck me from the first as possibly having some weight, namely, that the testatrix has limited the gift to a bequest for life, with a gift over. That strongly confirms the impression which I should have, if not bound by authority, that the testatrix intended in this bequest to include her stock. But, as the word "money" is allowed to pass not only money in a purse but money at a bank, I think it would be giving too large an effect to this kind of limitation to say that it was impossible, under any circumstances, that the testatrix could mean that what she thus settled for life, with limitations over, might not be at her death of sufficient amount to make it worth settling in that manner. That is, in effect, the argument from this limitation. It is painful to be obliged to come to the conclusion to which I have come upon the construction of this will; because I should have had strongly the impression that, in ordinary parlance, the word "money," as here used, might have included the stock in question, if I were not compelled by authority to hold otherwise; but, if I followed my private judgment, I should be throwing that uncertainty upon the law which everyone has always deprecated.

There must, therefore, be a declaration that the stock did not pass by this will, and the costs of all parties must come out of the estate.

[379] HAGGAR v. NEATBY. Feb. 19, 1854.

[S. C. 23 L. J. Ch. 455.]

Perpetual Annuity. Alternative Gift. Option of Trustees.

A bequest to trustees of the sum of £20 per annum Bank long annuities, or an annual sum equal thereto, upon trust to pay the same to E. for life; and, after her decease, to pay, assign, transfer and make over the principal stock or money which should be set apart for the payment of the said yearly sum to E.'s children, share and share alike. The testatrix, at the date of her will, and thence till her death, had £50 a year Bank long annuities, which would terminate in 1860. Held, that the testatrix intended to give a perpetual annuity of £20, and that the trustees of the will had not an option to make either a permanent investment, or set apart

£20 a year long annuities, at their discretion; but were bound to take the course which was most for the advantage of the children of E., by investing in consols such a sum as would produce £20 a year, to answer the legacy.

Sarah Squire, by her will, dated the 17th of July 1832, after devising certain freehold and copyhold hereditaments to the trustees of her will, upon the trusts therein mentioned, continued as follows:-"I also give and bequeath unto my said trustees the sum of £20 per annum Bank long annuities, or an annual or yearly sum equal thereto, upon trust, to pay the same from time to time, as the same shall be received, unto my daughter Elizabeth, to and for her own use and benefit, independent of, and not to be subject to, the debts, control or engagements of any husband with whom she may happen to intermarry, and for which her receipt and receipts, signed by her alone, whether she shall be covert or sole, and notwithstanding such coverture, shall be a good and sufficient discharge, and good and sufficient discharges to the person or persons paying the same; and from and immediately after her decease, upon trust to pay, assign, transfer, and make over the principal stock or money which shall be set apart for the payment of the said yearly sum, unto her children who shall be living at the time of her decease, if more than one share and share alike, and if but one child then to such one or only child. But if there shall be no such child then living, upon trust to pay, assign, transfer, and make over the same unto and amongst my children or child who shall be then living, if more than one share and share alike, and if but one then to such one or only child." And the said testatrix thereby appointed the said trustees the executors of her said will.

The testatrix died on the 20th of August 1833, and [380] her will was duly proved by her said trustees and executors.

At the date of her said will, and thenceforth up to her death, the testatrix was (amongst other personal estate) possessed of the sum of £50 per annum Bank long annuities, terminable in the year 1860.

Her said daughter, Elizabeth Haggar, had only one child, a son, who had attained the age of twenty-one years.

To answer the bequest of "the sum of £20 per annum Bank long annuities, or an annuity or yearly sum equal thereto," the executors, soon after the death of the said testatrix, set apart the sum of £20 per annum Bank long annuities out of the said sum of £50 per annum Bank long annuities, of which the said testatrix was so possessed as aforesaid, and from time to time paid the same to the said Elizabeth Haggar.

These facts were now stated in a special case, in which Elizabeth Haggar and her son were Plaintiffs, and the executors Defendants, and which submitted the question, whether, upon the true construction of the bequest in the said will, the Plaintiffs were entitled to have such a sum set apart out of the said testatrix's estate as, when invested in the purchase of Bank £3 per cent. annuities, would produce in dividends the full sum of £20 per annum, such dividends to be paid to the Plaintiff, Elizabeth Haggar, during her life, and the principal fund, at her death, to be transferred to the child or children who should be entitled to the benefit of the aforesaid bequest, or whether the said bequest had been duly answered and satisfied by the setting apart and appropriation of the said sum of £20 per annum Bank long annuities as aforesaid. [381] Mr. Rolt, Q.C., and Mr. Cairns, for the Plaintiffs, argued that the legatees had a right to choose which of the two subjects of bequest they would take, and cited Seale v. Seale (1 P. Wms. 290), in which there was a direction by will that all the testator's money in the funds should be laid out in the purchase of lands of £300 or £400 a year, and settled on his eldest son and the heirs male of his body, with remainders over; and the Lord Chancellor Cowper said that he would construe it in the most liberal sense, and that it should be £400 a year.

Mr. Bacon, Q.C., and Mr. Surrage, for the Defendants, argued that the first gift was of a sum of long annuities, and that the alternative investment must be "equal thereto" in all respects, that is, taking into consideration the time at which the long

annuities were to cease.

But whatever the construction in that respect must be, it was plain, from the nature of this gift, that the parties beneficially interested could not exercise the V.-C. XIV.-6

option, for they might be infants or unborn at the death of the testatrix; and, therefore, it must have been intended that the trustees should use their discretion in the choice; and the Court would not interfere with what they had done. In Wilson v. Wilson (1 De G. & S. 152), where the bequest was of a life annuity of £25 a year or £500 in money, Vice-Chancellor Knight Bruce held that the option was given, not to the legatee, but to the persons to whom the property which was subject to the legacy was given.

Mr. Cairns, in reply, suggested that the true construction was that, when the long annuities ceased, a permanent investment was to be made, which would produce £20 a year. This made all the will consistent, and avoided all questions as to option or election.

[382] THE VICE-CHANCELLOR Sir W. PAGE WOOD. I think that the true construction of this will is that this lady intended, and it is the substance of her will, to give a permanent annuity of £20 to the legatee for life, and then to her children. That would be the prima facie construction, from the form of the gift being of an annual sum to one for life, with an executory bequest over of the fund out of which it was secured, whatever that might be, to other persons, after the death of the person entitled for life. The testatrix gives to trustees the sum of £20 Bank long annuities, or an annual or yearly sum equal thereto, upon trust to pay it to her daughter for life; and, after her decease, then in trust "to pay, assign, transfer and make over the principal stock or money which shall be set apart for the payment of the said yearly sum unto her children who shall be living at the time of her decease." She contemplated clearly, therefore, that there would be some principal sum set apart for the payment of this annual sum.

Mr. Surrage ingeniously suggested that the gift being of a sum of "20 Bank long annuities, or an annuity or annual sum equal thereto," that must mean equal in duration as well as in amount. I think that could hardly be the true construction in point of phraseology alone, for it was not equality of duration that was then present to the mind of the testatrix. She was looking to the annual sum that was to be paid; and the equality, therefore, cannot apply to more than the sum of £20 mentioned as the yearly amount. Moreover, it would be an unreasonable construction of the will that the testatrix, in 1832, should bequeath to one person for life, and then to the unborn children of that person, a fund which she knew was only to last twenty-eight years from that time. That consideration also shews that it is much more probable [383] that the testatrix meant to refer to equality of the annual sum without reference to the duration of the long annuities.

Then the gift is alternative, either of £20 per annum long annuities, or an annuity or annual sum equal thereto; and, with reference to the money to be set apart to produce that annual sum, in truth, a sort of option was given, either to secure an annual sum, which must mean a principal sum to produce that amount for ever, or to set apart instead such a sum of Bank long annuities as would produce £20 a year. The remaining question is whether the executors were justified in acting on their own view of what they should do; whether they should set apart the long annuities or make a permanent investment. According to the case which has been cited from Peere Williams, the decision in which is founded upon the civil law, if there be a legacy to A. of £300 or £400, the legatee has a right to say that he will take that which is the most beneficial. If the parties may do that, the gift over here being to unborn children, I think that the trustees of the will are bound to take the course which would be the best for these children. It is not a bequest to the children without the intervention of trustees, so that the children might have the choice; but here it is given to trustees, not with any direction to do what they please in the matter, but an absolute gift to them of one or the other of these funds; and what a legatee, sui juris, would be entitled to do in such a case for his own benefit, the trustees or the Court, if they had come for its direction, should do for these children.

In the case of Wilson v. Wilson (1 De G. & S. 152), the Vice-Chancellor was especially guarded in founding his decision upon the [384] particular terms of the will. These were terms which would compel a party, on certain conditions, to purchase a certain annuity, and then there was a gift of that annuity, or the sum of money to be expended in its purchase, and the Vice-Chancellor thought, looking

to the whole of the will, that there was not an option in the legatee. The conditions could not apply to a sum certain, and the legacy being given in both ways, probably for that reason the Vice-Chancellor decided that the choice did not rest with the legatee. Seale v. Seale (1 P. Wms. 290) was not cited in that case; but I have no doubt that the principle of that case was present to the mind of the learned Judge who decided Wilson v. Wilson (1 De G. & S. 152), and that he thought himself bound to come to the conclusion at which he arrived by the special circumstances of the case.

Declare that, according to the true construction of the will of the said testatrix, such a sum of money ought to be set apart in respect of the legacy in the case mentioned as, when invested in the purchase of £3 per cent. consols, will produce the full sum of £20 a year.

[385] WEST v. RAY. Feb. 20, 21, March 8, 1854.

[S. C. 2 Eq. R. 431; 23 L. J. Ch. 447; 2 W. R. 319.]

Power of Appointment. Writing under Seal. Not Exercisable by Unsealed Will. Where a power of appointment is to be exercised by a writing under the hand and seal of the donee, it cannot be exercised by a will executed with only the formalities required by the 1 Vict. c. 26, because the essential requisition of the power is that it should be exercised under hand and seal, and the statute applies to a power of which the essential requisition is that it should be exercised by will, and the formalities are comparatively unimportant.

The reason that such a power would have been held duly exercised before the new Wills Act by a will under hand and seal was, because, under the general word "writing," it was indifferent by what kind of instrument the power was exercised, provided the essential solemnities were complied with. Buckell v. Blenkhorn (5 Hare, 131), not followed.

By an indenture, dated the 4th of June 1835, the first trust declared of certain leasehold property of Thomas West, the settlor, which was therein comprised, was to assign the same "unto such person and persons, and in such manner and form, and with or without power of revocation and new appointment, as the said Thomas West at any time or times during the term of his natural life, by any deed or deeds, writing or writings under his hand and seal, to be attested by two or more credible witnesses, shall direct, limit or appoint of or concerning the same respectively, or any part or parts thereof;" and in default thereof and subject thereto, in trust for the said Thomas West and his assigns during his life; and from and after his decease, upon the further trusts therein mentioned.

The said Thomas West, on the 7th of February 1849, made his last will and testament, not under seal, but executed by him, and attested in conformity with the requisitions of the 1 Vict. c. 26; and thereby, after bequeathing certain leasehold premises not comprised in the aforesaid indenture, and giving divers pecuniary legacies, he proceeded: "I give and devise, direct, limit, and appoint, all the messuages, lands, hereditaments, and real estate of every tenure of or to which I am now, or at my death shall be, seised or entitled at law or in equity, or which I have now, or at my death shall have, power to dispose of by will (except what I otherwise dispose of by this my will or any codicil thereto), unto and to the use of" certain trustees, upon trust to sell, and out of the [386] moneys to arise from such sale, and by and out of his personal estate, to pay his funeral and testamentary expenses, debts and legacies, and divide the residue equally amongst such of his grandchildren, who, being a grandson or grandsons, should attain the age of twenty-one years, or, being a granddaugter or granddaughters, should attain that age or marry; with certain provisions for their advancement and benefit in the meantime.

The testator died in the month of September 1850.

The infant grandchildren of the testator concurred, as Plaintiffs, with the persons

entitled under the settlement in default of appointment, as Defendants, in a special case for the judgment of the Court, whether the leasehold premises assigned by the indenture of the 4th of June 1835 became subject to the trusts declared by the said will in favour of the testator's grandchildren, or whether, notwithstanding such will, the said premises continued subject to the trusts declared by the said indenture in favour of the said Defendants.

Mr. Browell, for the Plaintiffs. The appointment is valid under the 10th section of 1 Vict. c. 26, which provides "that no appointment made by will in exercise of any power shall be valid, unless the same be executed in manner hereinbefore required; and every will executed in manner herein before required shall, so far as respects the execution and attestation thereof, be a valid execution of a power of appointment by will, notwithstanding it shall have been expressly required that a will made in exercise of such power should be executed with some additional or other form of execution or solemnity." Buckell v. Blenkhorn (5 Hare, 131) [387] decided that a will, executed according to this statute and not sealed, was a valid exercise of a power of appointment "by any deed or deeds, writing or writings, to be by her sealed and delivered in the presence of and attested by one witness or more: Vice-Chancellor Wigram saying that it had been settled by judicial decision that a will would have been a writing within the terms of this power before the Act; but, then, the required formalities of execution must have been complied with; and that the object of the statute being to dispense with useless formalities in favour of the intention of donors of powers, a will was still a writing, and the 10th section applied. This decision has had some doubt thrown upon it by the Lords Justices, in a suit respecting the very instruments now in question, in Collard v. Sampson (17 Jur. 641), the Lord Justice Turner saying that the reasoning in the judgment in Buckell v. Blenkhorn (5 Hare, 131) was not so conclusive as to settle the question; and the Lord Justices concurred in refusing specific performance of a contract to purchase property, the title to which depended on that authority.

The result of the decisions previously to the statute is thus stated in 1 Sugd. Pow. 262, 7th ed.: Although a will is not a good execution of a power to be executed by a deed, yet where, in the instrument creating the power, words are thrown in of a general comprehensive sense as 'writing' or 'instrument,' the Court will take advantage of them in favour of the intention, and deem a will within the meaning of the power, although in vulgar acceptation the words point to a deed." And for this he cites Kibbet v. Lee (Hob. 312), where a power of revocation to be exercised "by writing under his hand and seal, and by him delivered in the presence of three credible witnesses," and "then and from thenceforth" the former uses to be void was [388] held to be well exercised by a will executed with the prescribed formalities, notwithstanding the words "then and from thenceforth," which were rejected as repugnant. So in The Countess of Roscommon v. Fowke (4 Bro. P. C. 523), where the power was to revoke "by any writing under her hand and seal attested, &c., and "by the same or any other deed" to limit new uses: the latter apparently repugnant words being read "by the same writing or any other deed," &c. In Lisle v. Lisle (1 Bro. C. C. 533), a power to appoint "by writing" simply was considered exerciseable by will. [Mr. Jolliffe, for the Defendants, admitted that the word "writing" in the power would include a will among other instruments.] Then this power might have been exercised by a will sealed; but that would be adding a formality to the execution of the will which the statute intended to prevent.

Mr. Jolliffe, for the Defendants. The power cannot be exercised by a will without the prescribed formalities. The interpretation clause of 1 Vict. c. 26 says that the word "will" in the Act "shall extend to a testament and to a codicil, and to an appointment by will, or by writing in the nature of a will in exercise of a power. The power in this case is not to be exercised by "writing in the nature of a will; therefore, the 10th section does not apply. It is reasonable to suppose that the donor of the power did not intend that the settlement should be displaced by will, but only by deed inter vivos. If this be a good execution of the power, then, by the 27th section, a general bequest would also have been so, though not referring to the power.

Mr. Browell, in reply. It is settled that "writing" in a power may mean a will_