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he is not bound to charge his testator's estate with costs, by defending the action where he knows the debt to be due.

I find, however, that the case of Darston v. Lord Orford, in the House of Lords, is correctly reported; and in Waring v. Danvers, 1 P. W. 295, it is expressly referred to as establishing the point that a creditor may give a preference after a suit instituted.

I am bound therefore by this authority to allow the exceptions in this case.1

1 See 2 Wms. Exec. (8th ed.) 1041, 1042.

CHAPTER X.

LEGACIES.

SECTION I.

LAPSED AND VOID LEGACIES AND DEVISES.

NOTE. In this section are cases concerning lapsed and void devises as well as legacies.

WRIGHT v. HALL.

COMMON PLEAS. 1716.

[Reported Fort. 182.]

THE case ss. The testator devised all that his messuage and tenement in Edmonton to Francis Carter and his heirs, and all the rest and residue of his messuages, lands, tenements and hereditaments in Edmonton, Enfield, and elsewhere, to John Lammas, his heirs and assigns forever.

After the making this will, the aforesaid Francis Carter, the devisee, died in the lifetime of the testator, so that this became a lapsed devise by his death; and then the sole question in ejectment was, Whether this latter clause of the will would carry over the lapsed devise to John Lammas, the residuary devisee, or whether it should descend to the heir at law of the testator?

It was admitted, that such a residuary clause would carry over a lapsed legacy to a residuary legatee from an executor; but the doubt was, whether it would carry it from the heir at law.

Those who argued that it would not, cited many authorities in the books, where 't is expressly adjudged, that an heir at law shall not be disinherited, but by very plain and clear words, or by some necessary implication from express words, which show, that the testator did intend to disinherit him.

The court held, that the devise of all the rest and residue of my messuages, lands, &c. did not convey what was expressly devised before : for wills must be construed from the intent of the testator at the time of making the will, which appears to be to give his whole estate to Carter and his heirs, in that messuage; and at the time of the will made, he had no rest and residue left in that house, and the devise to Carter being void, the house will go to the heir at law, and not to John Lammas.

This was the authority and foundation of another case which was of the same nature; viz. that the rest and residue of my lands undevised must be meant at the time of making the will; and this was the case of Roe and Fludd, Pasch. 2 Geo. 2. [Fort. 184.]1

BAGWELL v. DRY.

CHANCERY. 1721.

[Reported 1 P. Wms. 700.]

J. S. INTER AL' bequeathed the surplus of his personal estate unto four persons equally to be divided between them share and share alike, and made A. B. his executor in trust. One of the four residuary legatees died in the life of the testator, after which the testator died; and the question being, to whom the fourth part devised to the residuary legatee (who died in the life of the testator) should belong?

THE LORD CHANCELLOR [MACCLESFIELD], after time taken to consider of it, did this day deliver his opinion, that the testator having devised his residuum in fourths, and one of the residuary legatees dying in his lifetime, the devise of that fourth part became void, and was as so much of the testator's estate undisposed of by the will; that it could not go to the surviving residuary legatees, because each of them had but a fourth devised to them in common, and the death of the fourth residuary legatee could not avail them, as it would have done, had they been all joint legatees, for then the share of the legatee dying in the life of the testator, would have gone to the survivors. But here the residuum being devised in common, it was the same as if a fourth part had been devised to each of the four, which could not be increased by the death of any of them.

His Lordship further declared, that this share could not go to the executor, he being but a bare executor in trust, and consequently, that it must belong to the testator's next of kin, according to the Statute of Distribution, as so much of the personal estate remaining undisposed of by the will, and that as to this, the executor was a trustee for such next of kin.2

1 See Doe d. Morris v. Underdown, Willes, 293 (1741).

2 Expenses of administration of personal estate come out of the residue generally, and not primarily out of a lapsed share alone. Trethewy v. Helyar, 4 Ch. D. 53 (1876). See In re Jones, 10 Ch. D. 40 (1878). Cf. Scott v. Cumberland, L. R. 18 Eq. 578 (1874); Hurst v. Hurst, 28 Ch. D. 159 (1884).

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JOHN WIGGINGTON by will gave to his brother Samuel Wiggington £6,000 in trust for the use and benefit of his children, to be equally divided between them, either in his lifetime or at his death, when, and in such manner as he should judge most convenient and beneficial to them. He gave to his sister Martha Selby £3,000, the interest of which he gave to her for her own use during her life; and at her death he desired the principal might devolve to her son Miles Selby, unless she should have more children, and then the same sum to be shared equally between them. He then added, " Item, I give unto the children of my late sister Mary Crowser, the sum of £2,000 to be equally divided among them. Note, To the above three legacies I desire £100 may be paid to each within one month after my decease, to buy mourning, &c." And after giving several other legacies, he gave the residue, after payment of debts and legacies, thus: "I give unto my brother Samuel Wiggington one third of the residue, and one third more to my sister Martha Selby, and the other third I give to the children of my late sister Mary Crowser, equally to be divided between the children of my brother Samuel Wiggington, my sister Martha Selby, and the children of my late sister Mary Crowser."

At the date of the will there were three children of Mary Crowser living, viz. John, Elizabeth, and William. William died after the date of the will, in the lifetime of the testator; and it was contended that one third of one third of the £2,000 given to the children of Mary Crowser lapsed into residue, and that one third of the residue lapsed, and was payable to the next of kin, as undisposed of.

MASTER OF THE ROLLS. [SIR RICHARD PEPPER ARDEN.] There is no doubt in this case on the bequest to the children of Samuel Wiggington, for all his children were living at the death of the testator. It was once indeed thought that a bequest to "the children of A.” might extend to all children born at any future time; but Derisme v. Mello, 1 Brown. Cha. Rep. 537, has settled that such children shall take, as are born at the time the distribution of the fund is to take place. The doubt in this case arises on the clause which gives "to the children of my late sister Mary Crowser" the sum of £2,000 to be equally divided. As I said before, the general rule as settled by Derisme v. Mello is, that the children living at the time of the distribution of the fund, shall take; if it is to be distributed at the time of the testator's death, then such children as shall be then living; if distributable at the death of some other person, then the testator is to be supposed to mean such children as shall be living at the time of the

death of such other person. Then the question is, whether a gift to the children of his late sister Mary Crowser is or is not indicative of an intention different from that which would be imputed to him under the general rule, that is, whether he meant the particular children living at the time he made his will, to take the fund equally between them, or whether it was not the same thing as if he had given the £2,000 "to the three children of my late sister;" for in that case it would have been a legacy to three persona designatæ. Now when a testator gives a fund to be divided amongst his own children, he shall be supposed to mean such children as shall be living at the time of his death. If so, why should I suppose that the sister being dead, he meant anything else than what would be imputed to him in the other case? This is not like the case of Lord Bindon v. Earl of Suffolk, 1 P. W. 96, for there the gift is to the five grandchildren, which shows that he had particular objects in view. But the general rule, I take it, comes to this, to exclude all children, who, although living at the date of the will, yet die before the testator, and to include all those who are living at the time of the distribution, although born after the will or the death of the testator.1

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THE testatrix gave all her residuary personal estate, after payment thereout of all her just debts, legacies, and expenses attending thereon, upon trust to divide the residue thereof into three equal parts or shares ; and as to one equal third part of such residue, upon trust to pay or transfer the same unto her son John Lloyd, his executors, administrators, or assigns, for his and their own use and benefit. And as to one other equal third part thereof, upon trust that they, her said trustees, &c., should, within the space of six calendar months next after her decease, pay unto her son Charles Lloyd the sum of £500, part thereof, to and for his own sole and absolute use and benefit; and as to the residue and remainder of such last-mentioned one third part, upon trust for Charles Lloyd for life, with remainder to his children; and as to the remaining one third part of such residue of her estate, she gave the same to her daughter Charlotte Hodgkinson for life, with remainder to her children.

Charles Lloyd died in the lifetime of the testatrix, leaving children, and the question was to whom the £500 belonged.

1 See Dimond v. Bostock, L. R. 10 Ch. 358 (1875); Re Allen, 44 L. T. N. S. 240 (1881); Jackson v. Roberts, 14 Gray, 546 (1860); Schaffer v. Kettell, 14 All. 528 (1867). Cf. Dowset v. Sweet, Ambl. 175 (1753).

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