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Kinnoul, into the hands of the crown, of the Caribbee Islands and cer-
Kinnoul, into the hands of the crown, of the Caribbee Islands and certain other islands, and possession therein referred to, and all his estate, claim, and demand in or to the same, as also for divers other good causes and considerations, his Majesty did, for himself, his heirs, and successors, give and grant unto the said earl one annuity of £600 of lawful money of England, to hold, enjoy, and receive the same, to him the said earl, his executors, administrators, and assigns, for the term of five years, from the feast of Saint Michael the Archangel, then last past. And the king also granted unto the Earl of Kinnoul and his heirs one other annuity of £1,000 of lawful money of England, to him the said earl, his heirs, and assigns; to the only proper use and behoof of the said earl, his heirs and assigns forever, from and immediately after the end and expiration of the said term of five years, without any account or other matter or thing to be rendered or given for the same; which said respective annuities the king appointed should from time to time be duly paid to the earl, his heirs, executors, administrators, and assigns, at the four most usual feasts and terms in the year, out of his Majesty's revenue of 4} per cent, at Barbadoes and the Leeward Islands as the same should come into the receipt of his Majesty's exchequer, or by levying tallies of assessments upon the farmers or collectors of the said revenue for the time being, notwithstanding any debt or debts charged or chargeable upon the said revenue, or any part thereof, the first payment to commence from the feast day of Saint Michael the Archangel; and if it should happen that the said revenue of 4} per cent should at any time or times after the expiration of five years fall short of the said annuities, then the king granted that the same should be fully made up to the said earl, his executors, administrators, and assigns, out of any other treasure of his majesty, his heirs, and successors, at any time being or remaining in the receipt of his exchequer; and his said Majesty did thereby authorize the commissioners of his treasury, &c., to give warrant for the levying tallies of assessment from time to time upon the farmers or collectors of the said revenue of 4} per cent, at Barbadoes and Leeward Islands aforesaid, for the time being, for the due payment of the said annuity of £1,000 to the said earl, his heirs, executors, administrators, and assigns respectively as aforesaid ; and did declare, that the receipt of the said earl, his heirs, executors, administrators, and assigns respectively, unto the said farmers and collectors, should be sufficient discharge. By virtue of various subsequent converances and assurances, and ultimately by virtue of a certain indenture bearing date the 26th day of May, 1773, the annuity of £1,000 was granted, bargained, and sold unto William Stafford, to hold the same unto and to the use of him, his heirs, executors, administrators, and assigns respectively forever, subject, nevertheless, to a proviso in the said indenture contained, whereby it was declared that if the grantors, or such persons who for the time being should be entitled
to the freehold or inheritance, or other beneficial interest of and in the same annuity, or any part thereof, or any or either of them, should pay or cause to be paid unto
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 upon 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 money's, &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 hier executors. The testatris 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 opinion 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, 1 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 and 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 beqnest 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. Boilen, 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 Fitzb. Ab. Tit. Release, pl. 48 : “ Release of all actions personal is a good bar in a writ of annuity, potwithstanding 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