1842. Chancery. HERON บ. STOKES. 66 "the statute, or in allusion thereto, forasmuch as the testator's daughter "Webb was living, and so her children could not represent her; and to "determine that the grand-children should take per stirpes, would be "to go too much out of the will and contrary to the words, when the meaning of the testator might be according to his words-and that "meaning a reasonable and sensible one." Now, here the reasons for rejecting the division per stirpes, are quite as strong as in that case; for here there is a gift to a person who never might be the next of kin of the testator; and the gift could have nothing to do with the Statute of Distributions, because the son might leave issue, who, though they might not take any part of the testator's property, would still be next of kin. But, even if the contingency occurred, and the son had no issue living at his death, still, the relations in blood to the testator are not the only persons to share in the gift over; for there is the testator's sister-in-law, who could never, by any probability, be his next of kin. I do not see, therefore, any reference to the Statute of Distributions; and it appears to me to be a question of intention, altogether independent of that statute. That a gift to a parent and children jointly, gives the property to them all jointly, we have seen already was decided in the case of Oates v. Jackson (a); and I do not see any thing in this case to take it out of the general rule; although, I admit, that it is open to the observations that have been made upon it. The authorities, however, are too stringent, although some of them presented as much difficulty as the present. In Errard v. Brooke (b), there was the very circumstance which was relied on by Lord Plunket in favour of the construction he adopted, viz., a gift to the parent along with the children. In his judgment, Lord Plunket says that that did not occur in either of the other cases upon the subject which he refers to; but that is not quite accurate, for we have seen that in the case of Blackler v. Webb there was a gift to the parent, and yet the distribution per capita was held to apply. In Butler v. Stratton (c) there was a gift to two persons and the children of a third, to be divided equally between them; and it was held that they all took per capita. In Philipps v. Garth (d), it was held by Mr. Justice Buller, sitting for the Lord Chancellor, that a gift to a testator's next of kin, passed the property to those who were next of kin, according to the Statute of Distributions, and that they took per capita. That decision has been overruled by Lord Cottenham when Lord Commissioner of the Great Seal, in Elmsley v. Young (e), as to the interpretation of the words "next of kin," and it is now settled that those words, when used simpliciter, mean nearest relations: but the latter case has not affected the reasons upon which it was held that the fund was to be distributed per capita. In Davenport v. Hanbury (a) it was held, that under a bequest to the issue of a particular person, all the descendants are entitled, and that they all take per capita. The Master of the Rolls, in his judgment in that case (b), says :— "In "Butler v. Stratton were cited Thomas v. Hole, For. 251, and Philipps " V. Garth, and they are according to my opinion. The latter was upon "the words 'next of kin.' Now, it strikes me, that where the fund is given exclusively to persons incapable of taking by representation, and who could not take except in their own character, that there is more ground for contending that the distribution should be per stirpes, than when the parent is included; because, where the parent is included, it would seem as if the testator meant to place him on the same footing as those who, it is contended, are to take as representing him. The case here, therefore, appears to me to be stronger on account of that circumstance. In Barnes v. Patch (c), a testator directed the residue of his estate "to be equally divided between brother Launcelot's and sister Esther's families," and it was held that they took per capita. In Lady Lincoln v. Pelham (d) the testatrix, after having given one-fourth of the residue of her estate to the younger children of her daughter the Duchess of Newcastle, and one-fourth to the younger children of her daughter Lady Sondes, directed that in case her two other daughters, then unmarried, should die without leaving issue, that the two-fourths which she had given to them should be divided equally amongst the younger children of the Duchess of Newcastle and the younger children of Lady Sondes; and it was held, that the fund was divisible among the younger children of both, per capita. Lord Eldon, in deciding that case, says (e):-"It is clear that if this had been a bequest to the younger "children of two persons, equally to be divided between and among them, "the division would be per capita. That rule has been applied in many "instances where doubts have been strongly raised; for instance, a gift "to a brother and the children of a deceased brother who, without a will, "would take per stirpes—yet, it has been held, that although the law "would have given it in moieties, that is not the effect of an express "bequest." My very clear opinion, therefore, is, that this point is quite settled by the authorities upon the subject, and that the distribution of the fund must be per capita. The only remaining question is the construction of the settlement, and upon that it is perfectly clear that the decree is erroneous. 1841. Chancery. HERON บ. STOKES. I have (a) 3 Ves. 257. (b) p. 260. (d) 10 Ves. 166. (e) p. 176. 1841. Chancery. HERON V. STOKES. already said all upon this subject that I think it necessary to say, except this, that I did not advert to the argument of Sergeant Warren, in which he contended that as there was in the settlement a limitation over, in case there were no children living at the death of the husband, therefore, those only who were alive at that period took vested interests. But that is the same kind of error as that in the decree, and is open to the same answer, viz., that as a gift to a class subject to a power of appointment, not to be exercised until the death of the tenant for life, is, nevertheless, vested until the power is exercised; so, the gift over will not prevent the vesting of the shares in the meantime. If the contingency happen, the property will go over; if not, it will remain vested. The decree must, therefore, be varied upon that point also. At the conclusion of his Lordship's judgment, Sergeant Warren, on the part of the defendant Stokes, stated that he did not entertain any expectation of being able, by any further argument, to alter the view which his Lordship had taken of the construction of the will and codicils with reference to the annuities, and the case was never mentioned again. 1841. Rolls. 1 CREED v. CREED. (In the Rolls.) PURSUANT to an order of this Court, a recognizance in the sum of £944 was entered into on the 20th of May 1824, by Edward Moore Creed, a tenant under the Court in this cause, and James Creed as his surety, conditioned for payment to the receiver, James Ivers, of the sum of £472 (being the amount of rent then due), by instalments at six, twelve, and eighteen months, with interest at £5 per cent. on said instalments, from the time at which they should severally become payable, and costs. Default having been made, the receiver proceeded on the recognizance, against James Creed, the surety; and on the 7th of June 1837, lodged a levari for the sum of £944 of the present currency, with the Sheriff of the county of Limerick. Under this writ, William Smyth, the Sub-sheriff of the county of Limerick, having made a seizure in 1837, and returned goods on hands for want of buyers, and further process having issued, he, on the 21st of December 1839, levied the sum of £319. 3s. by sale of a chattel interest of James Creed, and on the 11th of June 1840, received from him the sum of £624. 17s., being the balance of the amount for which the levari was marked; but did not pay over either of said sums until the 1st of May 1841, after an attachment had been awarded against him; when, deducting £49. 14s. for his fees upon the execution, he paid over the balance to the receiver. plying to such an execution. The levari Upon a motion on the part of James Creed, that the receiver might be C. 20, not apdirected to repay him the difference between the sum due upon the recognizance and the sum levied under the levari, the foregoing facts appearing, and it also appearing that although the Sub-sheriff had deducted £44. 19s. from the sum levied as for his fees on the execution, he had, on the 7th of December 1837, required James Creed to accept a bill of exchange for £70. 16s., being, as he alleged, the amount of his fees on the execution, which bill was afterwards renewed by a draft for £73. 10s., which was paid by James Creed on the 17th of January 1839; and that he had also received from James Creed on the 21st of December 1839, when the having been June 1840, re ceived the ba lance, 1624. 178., but did not pay over the amount until the 1st of May 1841; it further appeared that he had received from the defendant in execution the sum of £73. 10s. as and for his fees upon the execution, and a further sum of £50 for forbearance, and afterwards deducted from the sum levied £49. 14s. for his fees upon the execution. The Court declared him entitled to the sum of £26. 28. and no more for fees, and ordered him, within ten days, to refund the £73. 10s. and the £50, and also the difference between £49. 14s and £26. 28., with interest at six per cent. from the time of the payments, and also to pay interest on the sum levied for the time he held it in his hands, and all the costs of the motion as between Solicitor and client. 1841. Rolls. CREED บ. CREED. June 14. sale was had, the sum of £50 for delaying the further execution of the writ, the Court ordered that the motion should stand over for a week, with liberty to Smyth, the Sub-sheriff, who was ordered to attend, to make such affidavit in explanation as he should be advised. Smyth made an affidavit, but failed wholly in his attempt to displace any of the facts before mentioned. The motion was now renewed. Mr. J. Henn, Q. C., for James Creed. The recognizance being of the year 1824, the utmost amount for which J. Creed could be chargeable under it was £944 of the late currency. When the levari issued, not more than £750 was due for principal and interest; the costs mentioned in the recognizance have never been taxed or furnished. It now appears incontrovertibly by the affidavits, and the letters and documents produced, that so long ago as the 17th of January 1839, the Sub-sheriff received from James Creed the sum of £73. 10s. as for his fees upon the execution, and a further sum of £50 for forbearance: therefore, he ought not to have made any deduction for fees from the sum levied. In Keily v. Murphy (a), it was held that the recognizance entered into by a tenant under the Court, and his sureties, as a security for rent, is not a debt to the Crown; and the execution issuing in respect of such recognizance, must be considered as at the suit of a subject. Therefore, the Sheriffs' right to fees upon such an execution, cannot be under the 12 G. 1, c. 4, and 21 & 22 G. 3, c. 20, which relate exclusively to the case of a debt due to the Crown, such as in The King v. Fitzgerald (b); the right, if any, must be under the third section of 6 Anne, c. 7, which declares that on all executions by ca. sa., fi. fa., or elegit, the Sheriff may take for his fees one shilling in the pound for the first £100., and six-pence in the pound of every other £100 levied. The execution by levari is not mentioned; and in the present case the Sheriff could not be entitled to any fees, unless it be held that he is so entitled under the equity of the 6 Anne, to such fees as he should thereby have upon a ca. sa., fi. fa., or elegit. Instead of the £73. 10s. and the £49. 14s., taken for fees in this case, and the £50 for forbearance, the utmost amount to which the Sheriff could properly have been entitled, if at all, upon this execution, was the sum of £26. 2s.-i. e. one shilling in the pound for the first £100, and six-pence in the pound for the residue levied under the writ. Mr. W. Brereton, for Smyth the Sub-sheriff.-Upon a levari at suit of the Crown, the Sheriff is entitled to one and six-pence in the pound |