1800. BOLGER v. MACKELL. upon the 30th of July, 1793, and the 31st of March, 1794, reversed; on the ground, that the residue under the will of Mrs. Underhill did not vest in any of her residuary legatees, unless such residuary legatee should attain twenty-one, or, if a daughter, be married; and that George Snowden and John Snowden having died under the age of twenty-one, the whole residue vested in Catherine Bolger. The bill prayed a declaration accordingly. The Attorney General for the Defendants objected to the bill, as irregular; and that the question ought to have been brought forward upon a re-hearing. It was agreed, however, that the cause should proceed; and, if the Plaintiffs could sustain the point, that it should be brought on in the regular form. The Solicitor General, Mr. Campbell, and Mr. Mackintosh, for the Plaintiffs. The Plaintiffs contend, that either the whole in the event, that has happened, belonged to Catherine Bolger by implied survivorship, upon the supposition, that this was a joint bequest, till the parties should attain twenty-one, or upon the [*512] supposition, that the shares were immediately given as divided shares, but did not vest till the age of twenty-one respectively, one-third in her own right, and, as one of the next of kin of the testatrix, a share of the other two-thirds, as being undisposed of. In the first part of the will several legacies are given absolutely to each of these residuary legatees and other persons. The testatrix intended only what was strictly necessary for their maintenance to be applied during their infancy. It is clear, that if it were not for the direction for payment at the age of twenty-one, the vesting would not take place till that period: but it is said upon that direction, that the payment only is suspended. That was the argument used upon the will of Mary Snowden in a cause (79) between the same parties: in which your Lordship, reversing the decree of the Master of the Rolls, held, that the whole residue under that will survived to this Plaintiff. In some respects the residuary clause (79) Mackell v. Winter, ante, Vol. III, 236, 536. clause in that will entirely agrees with this: in others, I admit, there is a considerable difference. Your Lordship in that case disapproved of the rule upon this subject, taken from the Ecclesiastical Court, that where the time is annexed, not to the gift of the legacy, but to the payment, the legacy is vested; observing, that it was never treated with much respect; and is not founded upon any principle of interpretation: a rule, which Lord Cowper long ago observed was adopted upon very slender grounds; and which Courts of Equity have shewn a solicitude to circumscribe and narrow: Yates v. Fettiplace (80), before Lord Somers. Jennings v. Looks (81), Prowse v. Abingdon (82), Steadman v. Palling (83). Not only the principal is not given by this will till the age of twenty-one, but, as your Lordship observed in Mackell v. Winter, not even the income is * given till that period: but maintenance only is given out of it. Harrison v. Buckle (84) shews the reason of all those cases. It has been decided, that, where the words are manifestly future, as "I give at twenty-one," yet a direction for payment of interest shall vest the legacy; being evidence of an intention to vest it. By parity of reasoning, where the words are such as by the common rule would vest the legacy, the circumstance, that the interest is not to be paid, supersedes the application of the rule. (80) 2 Vern. 416. Prec. Ch. The late cases, in which this 140. (81) 2 P. Wms. 276. (82) 1 Ath. 482. (83) 3 Atk. 423. See the cases collected and arranged by Mr. Cox in his note, 2 P. Wms. 612, to The Duke of Chandos v. Talbot. See also Mr. Butler's note, Co. Lit. 237 a. Mr. Fonblanque's notes to The Treatise of Equity, vol. i, 439, vol. ii, 202, 366, 2d ed. and Mr. Sanders's notes to Prowse v. Abingdon, Steadman v. Palling, Hall v. Terry, Van v. Clarke, 1 Atk. 502, 510, and Lowther v. Condon, 2 Atk. 127. subject has been discussed, are (84) 1 Str. 238. See Mr. No- 1800. BOLGER v. MACKELL [ ⚫513 ] 1800. BOLGER -V. MACKELL. [ *514 ] But, if there is no implied survivorship, at least these lapsed legacies are undisposed of, and then the Plaintiff going upon the intestacy does not want the aid of the intention. Lord CHANcellor. You argue very properly upon a lapsed legacy: but this is a residue; and therefore your construction is to produce an intestacy. You might argue a little upon the intention, where the legacy is to fall into the residue, and the legatee does not arrive at the period: but it is difficult to argue upon the intention, where it is to produce a partial intestacy (85). I observed in the former case, that the distinction was founded in this; that it is a distinction settled undoubtedly in the Ecclesiastical Court from the Roman law (86). This Court has not adopted it, where it is not compelled, as to land (87): there is also the consideration for the heir as to that. I see from the Report of that case, I intimated, that if it were not for the circumstances in that case, I felt myself compelled to follow the rule. The decisions of the Courts as to the personal estate must be uniform. But what governed my opinion in that case was, that I must have struck out of the will the limitation over by holding, that those were vested legacies; for there could not be a case, in which that limitation could take effect: the legatee over taking nothing but in the event of the deaths of the grandsons under twenty-one and of the grand-daughter under that age, and unmarried; and also there was a very clear, though not a very well expressed, intention in the will, that there should be cross remainders. In this will it is a mere tenancy in common. There is nothing to shew an intention of survivorship, or that one should take, if the other should not arrive at the time marked out. This is a mere bequest of the residue of personal estate, payable at twenty-one. The rule must take place; and the mere addition of a direction, that maintenance shall be deducted, will not prevent it. (85) See ante, Milsom v. Awdry, 465. Philipps v. Chamberlaine, Booth v. Booth, Vol. IV, 51, 399; where this distinction was relied on by the Master of the Rolls, 2 Mer. 386. (86) Post, Vol. VI, 245. (87) Pearce v. Loman, ante, Vol. III, 135. The Attorney General, for the Defendants. The disposition of Courts of Equity in this country, instead of being to get rid of this rule, has been to extend it; for they only hold themselves bound to consider legacies not vested, because the Ecclesiastical Courts have so determined: but the object of Courts of Equity is, that personal property shall be considered vested; unless the contrary appears; and that the opposite rule shall hold as to real estate, for this reason; that it is most convenient, that personal property should be distributed at the death, and that real property should not be charged. Determinations have been made over and over upon those grounds. There cannot possibly be any doubt upon this case. The question in Mackell v. Winter arose upon the bequest over: but for that your Lordship felt yourself bound to follow the distinction; as the Master of the Rolls had done. Lord Thurlow's distinction was (88), where the time is so annexed to the gift as to form part of the character of the person to take, so as to raise a condition precedent, there the construction of the Roman law, vesting the interest, does not take place: but where the time is appointed for the convenience of the fund, as six years after the testator's death, or, as in many cases, at the death of the person, who takes for life, according to the leading case in Ventris (89) and Pinbury v. Elkin (90), the rule postponing the vesting till that time does not apply. Lord CHANCellor. There was a case (91) lately before me, where a legacy was suspended till the age of thirty-two; and I followed the distinction of Lord Thurlow; holding it a description of the person to take. This is within all the cases. Therefore the bill must be dismissed. As to the costs, taking this to be a bill of review upon error, it follows of course, that they must pay the costs, when there is no error in the decree. (88) Dawson v. Killet, 1 Bro. C. C. 119. 2 Ventr. 342. (89) Anon. 2 Ventr. 347. Cloberrie's Case. (90) 1 P. Will. 563. (91) Batsford v. Kebbell, ante, Vol. III, 363, see the note, 364. 1800. BOLGER v. MACKELL. 1800. July 22d. married wo BLOUNT v. BESTLAND. A legacy to a SARAH BREWIN by her will gave to Ann Simpson, wife of Thomas Simpson, the sum of 600l., to be paid her by the executrix of the said will within twelve months after the decease of the testatrix; and she appointed her niece Susannah Bestland executrix. man is not sufficiently reduced into possession by an appropria tion by the The testatrix died in 1790. Above a year after her death Thomas Simpson died; having by his will disposed of the executrix of a legacy of 600l. to his wife for life, and after her decease to his children; and given his wife another inconsiderable benefit. His widow, having two children by him, married William Blount. The bill was filed by Blount and his wife, claiming the legacy, against the executrix of Mrs. Brewin, the executor of Thomas Simpson, and the two infant children. mortgage to the same amount, so as to prevent her survivorship upon her husband's death. Election decreed between two claims under and against a will. Settlement directed of a legacy to a married woman claimed by her husband. The defence set up by the answer of the executrix, and also supported by her depositions, taken for the children, was, that she became entitled as executrix to 600l., secured to the testatrix, her executors, &c., upon a mortgage of the freehold estates of Wissendine, in the county of Rutland, belonging to the Defendant's mother; and the Defendant, conceiving herself liable to pay to Thomas Simpson the legacy of 600%, a short time after the expiration of twelve months from the death of the testatrix had some conversation with Simpson relative to the said legacy; and she intimated her willingness to pay him the legacy; but not having the money ready she told him, it should be paid by the money due upon the said mortgage upon the estate at Wissendine; and that she would call in that money for the purpose of such payment, if he wished it. He said, he did not want it just then; and he would rather it should lie, where it was, and he receive the interest, till he wanted it: to which the Defendant agreed. In consequence she paid him 127. upon the 20th of October, 1791, and 127. upon the 5th of June, 1792; taking receipts from him of those dates, expressed thus: "Received of Susannah Bestland as executrix of Mrs. Sa"rah Brewin the sum of 127. being for half a-year's interest "for 600%. left to my wife by Mrs. Brewin's will as charged 66 upon the estate at Whitsendine in Rutland." |