Page images

the said William Stafford, his heirs, executors, administrators, and assigns, the principal sum of £12,381, 148. 10d., with interest, at the rate of 4) per cent, at certain times in the same indenture mentioned, and long since past, he the said William Stafford, his heirs or assigns, would at their request and at their charges re-grant the said annuity and all arrears thereof unto and to their use, or unto such person or persons as they should appoint in that behalf, freed and discharged from all

mesne incumbrances. The said principal money was not paid to Mr. Stafford in his lifetime, and still remains due vpon the said mortgage. The exchequer annuity, subject to the usual deductions, was regularly received up to Jan. 5, 1818. William Stafford, by his will duly attested, bearing date Oct. 22, 1777, gave all his real and personal estate whatsoever unto his wife, Alethea Maria Stafford, her heirs, executors, administrators, and assigns, and appointed her sole executrix thereof, and died in the year 1796 without issue. The said will was duly proved by his executrix on Sept. 7, 1796. Alethea Maria Stafford, by her will bearing date March 12, 1810, and attested by two witnesses, after directing that all her just debts, funeral, and testamentary expenses and the charges of proving her said will should be in the first place paid; and after giving sundry pecuniary and specific legacies, and divers annuities to several persons and several charitable institutions therein mentioned, bequeathed as follows; viz., " And all the rest, residue, and remainder of my personal estate, of what nature or kind soever, I give and bequeath the same, and every part thereof, unto John Aubin and Patrick Lewis, their executors, administrators, and assigns, upon trust, as soon as conveniently may be after my decease to get in and convert into money all such parts of my estate as shall not consist of money or of perpetual stocks or funds." And then, out of such moneys, &c., to pay the several pecuniary legacies, and to provide sufficient funds for the payment of the several annuities and other yearly payments, directed by her will to be made, and to set apart the annual sum of £200 to be paid forever to the treasurer, for the time being, of the Thatched House Society, for the sole uses of that institution. And after directing similar appropriations for the benefit of other charities, she bequeathed all the residue of her said personal estate and effects to be divided equally between and for the benefit of three charities therein named, to be paid in equal proportions, for the benefit of the same respectively. And she appointed the said John Aubin and Patrick Lewis her executors. The testatrix died on Sept. 29, 1810, and the said John Aubin and Patrick Lewis duly proved the said will. The exchequer annuity, under an order of the Court of Chancery made Feb. 17, 1817, in a cause of Aubin v. Daly, was sold to John Dearman Church, Esq., for the sum of £12,050. The question for the opivion of this court was, whether the legal estate and interest in the said exchequer annuity of £1,000 passed, by the will of Alethea Maria Stafford, to John Aubin and Patrick Lewis, the executors named in the will.

Denman, for the plaintiff. The question in this case is, whether this annuity duly passed by a will attested only by two witnesses. That depends on another question, whether this be personal or real property. In Co. Lit. 20 a, it is thus laid down : “And so it is if I, by my deed, for me and my heirs, grant an annuity to a man and the heirs of his body; for that this only chargeth my person, and concerneth no land, nor savoureth of the realtie.” Holdernesse v. Carmarthen, i Bro. Ch. Ca. 377 ; Buckeridge v. Ingram, 2 Ves. jun. 652 ; and Earl of Stafford v. Buckley, 2 Ves. 170, are authorities to the same effect; and in the last case, which is upon the very will now in dispute, Lord Hardwicke decided this point on the authority cited from Co. Lit.

Richmond, contra. It is not necessary here to deny the principles of law laid down by the other side. For, admitting that this will is sufficiently executed, still there is an ulterior question, viz., whether med this annuity passes by the will. It must pass by one of two modes. Either it vests in the executors virtute officii, or by the

residuary bequest to them. An annuity of this sort is thus defined by Lord Coke, Co. Lit. 2 a : “And so it is if an annuitie be granted to a man and his heirs, it is a fee-simple personal.” As such it will be descendible to bis heirs. It was formerly doubted whether an annuity was assignable ; but that doubt did not extend to annuities of inheritance. Gerard v. Boden, Hetley, 80; Baker v. Broke, Moore, 5. And in Brooke's Abr. Tit. Annuitie, pl. 39, it is thus laid down : “ It was doubted if he who has an annuitie in fee may grant it over, for it is a chose in action; yet per alios it is an inheritance; and therefore it may well be granted over, and that without attornment, for it charges the person; and yet the defendant was charged as parson of a church. And a debt cannot descend to the heir, but an annuity of inheritance may descend to the heir; therefore it is not merely personalty.” And in Fitzh. Ab. Tit. Release, pl. 48 : “ Release of all actions personal is a good bar in a writ of annuity, notwithstanding he claim to him and his heirs; and a release of actions real is also good, because it is mixt.” And in Holdernesse v. Carmarthen, 1 Bro. Ch. Ca. 376, an annuity granted by the letters patent of King William and Queen Mary was considered on the same footing as an annuity of inheritance, and assignable. And the point was also discussed in Priddy v. Rose, 3 Meriv. 86. In Nevil's Case, 7 Rep. 124 b, an annuity of inheritance was held forfeitable for treason by 26 H. 8, c. 13. And in The Earl of Stafford v. Buckley, Lord Hardwicke expressly says of this annuity : " All the rest of the personal estate that could pass to executors would go to them; but this is a kind of personalty which, according to Doctor and Student, would not be assets in executors, and, consequently, will not go to them by being named executors.” These authorities, therefore, show that the executors did not take this annuity virtute officii. Then are the words in the bequest sufficient to give it to them? The. testatrix bequeaths all the rest, residue, and remainder of her personal estate, of what nature or kind soever, and every part thereof, unto

J. A. and P. L., their executors, administrators, and assigns, upon certain trusts. Now, it is clear, by reference to Lord Hardwicke's judgment, that he entertained considerable doubts whether this annuity would pass by a sweeping bequest of this nature. Suppose a will bequeathed all the testator's hereditaments to A, and all his personal estate to B. It seems clear that A would take such an annuity as this, and the heir at law is not to be disinherited without express words, and that though general words are used. Doe, dem. Spearing, v. Buckner, 6 T. R. 610. [BAYLEY, J. There the devise was followed by words showing that the testator bad only his personal estate in contemplation. The words of the trust in that case were very material, for the trustees were to add the interest to the principal, which showed that there the testator was only speaking of his personal estate. ] Where the residuary clause is in favor of executors, it was held, Shaw v. Bull, 12 Mod. 593, that no more would pass by it than would go to executors virtute officii ; and that is the case here. And the words “ of what nature or kind soever" apply only to real and personal chattels, and do not extend to hereditaments. So in Rose v. Bartlett, Cro. Car. 292, a devise of all lands and tenements was held not to include terms for years. The court, therefore, are not bound by the literal sense of general words. He also cited Ex parte Sergison, 4 Ves. 147, Ex parte Morgan, 10 Ves. 103, and Silberschildt v. Schiott, 3 Ves. & B. 45. [BAYLEY, J. The argument would go the length of saying that property of this description could only pass by a special devise.]

Denman, in reply, contended that it was clear that this annuity passed by the residuary clause in Mrs. Stafford's will. Here there is nothing to restrain the general words of the devise. And the only question is, whether this is personal estate ; whether it would pass to the executors virtute officii is a very different question from the present. This is the case of a specific bequest of the residue, and is quite sufficient to pass the annuity in question.

Cur, adv. vult. The following certificate was afterwards sent :

This case has been argued before us by counsel, and we are of opinion that the legal estate and interest in the exchequer annuity of £1,000 passed by the will of Alethea Maria Stafford to John Aubin and Patrick Lewis, deceased.


[ocr errors]


{Reported 2 Y. & C. Ex. 268.') Alderson, B., delivered the judgment of the court : This was a bill praying in substance that the defendant Margaret Brent, widow and executrix of Timothy Brent, deceased, may account for certain shares of the Chelsea Waterworks, and that it may be declared by the court that the plaintiff as his heir at law became entitled to those shares, and that the other defendants, the Governor and Company of the Chelsea Waterworks, may be directed to insert in their transfer-books the plaintiff's name as proprietor thereof. There is no dispute as to the facts, and the only question for the court was, whether these shares were part of the real or personal estate of the testator. If the former, the plaintiff as beir at law is entitled to the decree he prays, because the will is attested by only two witnesses; and if the latter, his bill must be dismissed.

When this question originally came before me, I thought it one of so much difficulty, and involving such extensive consequences, that I was desirous the parties should have the benefit of having the opinion of my learned brethren also ; and accordingly, in conformity to the practice here (which is a peculiar advantage in the frame of the Court of Equity in the Eschequer), I adjourned the case to be heard before the full court. The case was, in the course of last Michaelmas Term, very fully and ably argued before Lord Abinger, my brothers Parke and Gurney, and myself; and I am now to deliver the opinion of the whole court on the point.

The company of the Chelsea Waterworks was originally constituted under the provisions of the statute 8 Geo. J., 1723. By that act, certain persons named therein were constituted commissioners, undertakers, and trustees for carrying into effect the works then projected, and for afterwards maintaining them. For that purpose his Majesty was, by a subsequent clause, empowered to incorporate them, by the name of the Governor and Company of the Chelsea Waterworks. And they were to have the power of purchasing lands not exceeding £1,000 per annum, and to sell and dispose thereof at their pleasure, and to do all necessary works, and to be subject to such rules, qualifications, and appointments as his Majesty should think reasonable to be inserted in the charter; and might also be empowered to make by-laws from time to time for the good government of the corporation.

In pursuance of this power a charter of incorporation was granted almost immediately afterwards by George I. That charter followed the directions of the statute, and gave the corporation power to purchase lands, &c., so as they did not exceed in value £1,000 per annum,

1 The opinion only is given. It sufficiently states the facts.


and also estates for life or lives, and for years, and goods and chattels of what nature or value soever, for the better carrying on and effecting the purposes of the company, not exceeding the value of the joint stock of the corporation thereinafter mentioned and limited, and to be taken and computed as part thereof.

The twenty-third scction empowered the corporation by subscription to raise a joint stock, not exceeding £40,000, and to manage the same from time to time, and to receive the benefit and advantage of the same to the use of them the said Governor and Company and their successors, according to such shares and proportions as they or any of them have or shall have therein. And then it provided that every person subscribing and contributing any sum or sums of money should, by virtue thereof, become members of the said corporation, and should be entitled to a share or shares in such joint stock (previously fixed at £20 each) equal to the sum or sums of money so by him actually contributed and paid in, and no greater; and should be enabled to sell, assign, and transfer the same or any part thereof (not being less than one whole share, as by a subsequent clause was provided), by transfers in the company's books, in such manner as should be by a general court directed, or by his last will and testament; and the person to whom such assignment or transfer, or disposition by last will and testament, should be made, should by virtue thereof become member of the said corporation.

What, then, is the intention of the crown and legislature to be collected from all these particulars as to the nature of the interest which each shareholder is to have? That is, in truth, the whole question in this cause. Now, in the first place, we have a corporation to whose management the joint stock of money subscribed by its individual corporators is intrusted. They have power of vesting it at their pleasure in real estate or in personal estate, limited only as to amount, and of altering from time to time the species of property which they may choose to hold; and in order to give them greater facilities and advantages, certain powers are intrusted to the undertakers by the legislature, and that even before they were constituted a body corporate, of laying down pipes, and thereby occupying land for the purposes of their undertaking. These powers render the use of joint stock by the body corporate more profitable, but they form no part of the joint stock itself; and one decided test of this is, that they belong inalienably to the corporation, whereas all the joint stock is capable expressly of being sold, exchanged, varied, or disposed of at the pleasure of the corporate body. It is of the greatest importance to look carefully at the nature of the property originally intrusted, and that of the body to whose management it is intrusted, - the powers that body bas over it, and the purposes for which these powers are given. The property is money, — the subscriptions of individual corporators. In order to make that profitable, it is intrusted to a corporation who have an unlimited power of converting part of it into land, part into goods, and of changing and dis


« PreviousContinue »