1833 FOSTER v. EVANS. for the Survivor, for life, and, after the decease of the Survivor, in Trust for the Children of the Marriage as therein mentioned; and, if all the Sons of the Marriage should die without Issue before 21, and all the Daughters, before 21 and without having been married, then, in case Mr. Foster should die in the lifetime of his Wife, in Trust, as to one Moiety of the Trust Monies, for his Executors, &c., and, as to the other Moiety, in Trust for such Persons, &c., as Mrs. Foster should appoint, and, in default of appointment, in Trust for Thomas Oldham, his Executors, &c.; and, in case Mr. Foster should survive his Wife, then, as to the whole of the Trust Monies, in Trust for him absolutely. Thomas Oldham, by his Will, dated the 23d of May 1832, after devising certain Freehold Estates, gave all his other Real Estates, to R. Evans, John Foster and E. Hemsley, in Fee, upon Trust to pay the Rents to Mrs. Foster, for her separate use, for life, and, after her decease, to stand seised of the same upon such Trusts, &c. as Mrs. Foster should appoint, and, in default of Appointment, in Trust to sell the same, and to invest the Proceeds in Government or Real Securities, and to stand possessed thereof upon the Trusts thereinafter declared. The Testator afterwards proceeded thus: "1 give and bequeath unto the said R. Evans, John Foster and E. Hemsley, their Executors, Administrators and Assigns, the sum of 3,000 l., upon Trust to lay out and invest the same in the manner hereinbefore directed with respect to the Monies to arise from the Sale of the Hereditaments secondly hereinbefore devised, with the same powers of varying Securities; and I direct the said R. Evans, John Foster and E. Hemsley, their Executors, Administrators and Assigns, to stand possessed of the said sum of 3,000 l., and the Stocks, Funds and Securities, in or upon which the same shall be laid out or invested, upon the same Trusts for the benefit of my Daughter, Ann Maria Foster and John Foster, and their Issue, as by the Settlement made previous to, and in contemplation of the Marriage of the said Ann Maria Foster with the said John Foster, her present Husband, are expressed and declared of the said Trust Monies, Stocks, Funds, and Securities comprised in such Settlement." And the Testator appointed R. Evans, J. Foster and E. Hemsley, Executors of his Will. The Testator died on the 1st of September 1832, leaving the whole of the Principal and some of the Interest due on his Bond, but which his Executors paid after his death. The Bill was filed by Mr. and Mrs. Foster and their Children, against Evans and Hemsley, stating that the Executors had refused to invest the 3,000 l. as directed by the Will, on the ground that that Legacy was given in satisfaction of the Bond, and praying that the Plaintiffs might be declared entitled to the benefit of that Legacy, in addition to the 3,000 7. secured by the Bond, and that it might be invested, out of the Testator's Assets, upon the Trusts of the Settlement. The Defendants put in a general Demurrer. Sir E. Sugden and Sir George Grey in support of The general rule is that, if a Child is already provided with a Portion, and the Father, by his Will, gives a like Sum to the Child, the latter is in lieu of the VOL. VI. C 1833. FOSTER 0. EVANS. 1833 FOSTER v. EVANS. former. The question then is, whether the words of reference, in this Will, take the Case out of the general rule. There are two Sums of 3,000 l. comprised in the Settlement, one of which came from the Father, and the other from the Husband, and the words of reference may be considered as applying to that Sum which did not come from the Father. Mr. Knight and Mr. Chandless appeared in support of the Bill. But The Vice-Chancellor, without hearing them, said that it appeared, on the face of the Will, that the Testator did not intend the Legacy to be a satisfaction of the Bond. For, as he referred to the Settlement, it was clear that he had it in his recollection when he made his Will; and, consequently, if he had intended the Bequest to be a Satisfaction of what was due on his Bond, he would have so declared. Demurrer overruled. 1833: 12th February. New Orders. The Respondents to a Cha rity Petition, THIS IN RE WILLOUGHBY'S CHARITY. was a Charity Petition, to which the Trustees of the Charity were Respondents, and they had been ordered to pay the Costs of the Petition. Upon an Application made, by Mr. Treslove, relative are Parties to it, to the service of the Order, and, therefore, they are not within the 44th Order. The Vice-Chancellor ruled that the Trustees, being Respondents, were Parties to the Petition, and, therefore, that the Case was not within the 44th of the New Orders of 1828. 1833. In re WILLOUGHBY'S CHARITY. COLLETON v. GARTH. 1833: 16th February. Widow. THE Testator in this Cause bequeathed, to his Wife, Construction. the Lease of his House in Baker-street, and the Household Furniture, Plate, Pictures and certain other Articles A Rent-charge therein. The Lease having expired in the Testator's expressed to be Life-time, part of the Furniture was sold, and the Re- for a Jointure, mainder, together with the Plate, Pictures and other Articles, was removed to a House which the Testator took in Edward-street. One of the Questions in the Cause was whether the Testator's Widow was entitled to the remainder of the Furniture, and to the other Articles. Another Question was whether the Widow was excluded from her Distributive Share of the undisposedof residue of the Testator's Personal Estate, in consequence of the Testator having, on his Marriage, settled on her a Rent-charge, for her Jointure, and in lieu of Dower and Thirds at Common Law. and in lieu of Dower and Thirds at Common Law, does not bar the Jointress of her Distributive Share in her Husband's undisposed-of Personal Estate. Legacy. Ademption. Testator gave, to his Wife, his House in B. and the Furni ture in the said House. The Lease of the House expired The Attorney-General, Mr. Pepys, Mr. James and Mr. Girdlestone, Junior, for the Testator's next of Kin, in the Testator's contended, first, that the Will, in this case, must be life-time, and he took another House, and re moved his Furniture to it. Held that the Legacy was adeemed. 1833. COLLETON 0. GARTH. considered to speak as at the Testator's death, and that all the Articles having been removed, and part of the Furniture having been sold, by the Testator, the Bequest had failed. Green v. Symonds (a); Heseltine v. Heseltine (b). Secondly, that the Jointure, being expressed to be in lieu of Thirds at Common Law, the Widow was barred of her Distributive Share of the residue. Walker v. Walker (c); Davila v. Davila (d); Glover v. Bates (e); Druce v. Denison (f); Garthshore v. Chalie (g). Sir Edward Sugden and Mr. Garratt, for the Widow, said that, when the Lease of the House expired, the Furniture, &c. were removed, from necessity, and not with the intention of adeeming the Legacy; that it was like the Case mentioned, by Lord Hardwicke, in Green v. Symonds, of the removal of Goods to save them from Fire, or the Case mentioned, in Swinburne, of a Testator receiving a Sum of Money which had been secured by Mortgage, and laying it by for the Legatee; that, in Heseltine v. Heseltine, the Gift was, specifically, of the Property that should be in the Testator's House at the Time of his Death; that, in Green v. Symonds the Testator was dealing with Personal Estate, generally; but here there was no general Gift of Personal Estate, nor did the Testator speak of Furniture, &c. in his House at the time of his death, but he spoke of the Furniture, &c. as being in the House, merely for the purpose of identifying it. Land v. Devaynes (h). (a) 1 Bro. C. C. 128, note. (c) 1 Vez. 54. (d) 2 Vern. 724. (e) 1 Atk. 439. (f) 6 Ves. 385. (g) 10 Ves. 1. (h) 4 Bro. C. C. 537. |