Page images
PDF
EPUB

as soon as that purpose was answered he might buy in again. As to the second point, after such devise, the Legislature thought proper to make a law to change three fourths of the stock into annuities, and the fourth to remain as it stood before ; so that the testator, when he died, was possessed of £1,200 annuities, and £400 stock; and it would be extremely hard to say, that this alteration of the stock by Parliament should work an ademption, when it cannot be presumed the testator's intent was particularly asked, or that he concurred or agreed to such law in any other manner than what every other person is supposed to do."

If an obligee was to devise a legacy of £1,000 secured by bond from A. B., and he should afterwards compel A. B. by due course of law to pay it bim, this would be an ademption of the legacy ; but it was never thought, if A. B. should pay in the money voluntarily, it would be an ademption, because the obligee is bound to receive it.

that he corbe presumed by Parliame

DINGWELL v. ASKEW.

CHANCERY. 1788.

(Reported i Cox, 427.) CERTAIN quantities of stock were previously to a marriage rested in the names of trustees, and were upon the marriage settled to the separate use of the wife for her life, then to the issue of the marriage, then to such persons as the wife should by will appoint, and in default thereof to the wife absolutely; and in the settlement a very full and ample power was given to the wife to make a will notwithstanding her coverture, and to dispose of this property as she should think fit. The wife made a will during coverture, in which she recited the power she had under the settlement, and in pursuance of that power she disposed of the stock, and then the husband died in her lifetime without issue. After the death of the husband the wife took a transfer of the stock from the trustees into her own name; and died without making any other will than as aforesaid. And the question was, whether the calling in the stock from the trustees should be a revocation or an ademption of the bequest.

It was argued to be a revocation or ademption on the ground that by the transfer the wife acquired to herself a new estate or interest in this fund from that which she had at the time of making her will, and upon which that will operated ; that the same presumption would be raised in this case, as where a man makes a will of land, and afterwards by feoffment or otherwise takes a new estate in the same land to himself, and precisely for the same interest as he bad in it before, yet

i See Oakes v. Oakes, 9 Hare, 666 (1852); Walton v. Walton, 7 Johns. Ch. 258 (1823).

such feoffment will work a revocation. The interest which she acquired by the transfer was very different from that limited to her by the settlement, and the specific subject of her bequest was therefore gone at the time of her death.

MASTER OF THE ROLLS. [SIR LLOYD KENYON.] This case is new in specie, but I have very little doubt about the grounds on which I am to decide it. If it could be proved, that when the wife took the transfer, ber intention was altered, it would decide the question ; but there is no such thing in proof here; and if I were to hazard conjecture on the subject, which I am not inclined to do, I should think her intention remained the same. Under the settlement she had a power of disposing of this property beneficially by will. The property was then in trustees, which was necessary for securing it from the control of the husband; but the instant the husband died, the reason for vesting it in the trustees ceased ; her interest in it after the transfer was not in fact more beneficial, but only more convenient to her, which however was a sufficient reason for her to wish to get rid of the intervention of the trustees. It has been decided that where a person, having an equitable interest in real property, devises it, and afterwards gets the legal estate, this will be no revocation. So here there is no new beneficial interest acquired. If therefore we were to construe this with equal strictness as the rules respecting real estate, it would be no revocation ; much less so in case of personalty. I am therefore very clearly of opinion, though I know no case in point, that this property will pass by this will.

STANLEY v. POTTER.

CHANCERY. 1789.

[Reported 2 Cox, 180.] EDWARD STANLEY, by his will of the 29th day of Oct. 1777, reciting that some time in or about the month of Jan. 1772, he the said testator bad advanced and lent unto James Campbell, of Craignash, in Scotland, the principal sum of £2,000 sterling, and for securing the repayment thereof, with interest at five per cent per annum, or an annual rent of £100 sterling, with liquidate penalty, expenses of enfeoffment, and termly failzies, the said James Campbell did duly execute to him the said testator his the said James Campbell's certain heritable bond, bearing date the 27th day of January 1772, and thereby and by a ratification thereof by Mrs. Ann Campbell, wife of the said James Campbell, bearing date the 12th day of February 1772, and instrument of sasine taken upon the said heritable bond, dated the 27th day of Janu. ary 1772, divers lands, islands, and other hereditaments and premises were and stood charged with the due payment of the said principal sum of £2,000 and interest, or annual rent of £100 for the same in manner therein mentioned, he the said testator gave and devised that all the said annual rent of £100 sterling, or such annual rent, less or more, as by the law for the time being should correspond to the said principal sum of £2,000 to be taken as afore-mentioned, and all the said lands and premises for and in real security, and more sure payment of the said £2,000 sterling &c. and all his estate, right, title, and interest therein to the several uses, and upon and for the several trusts, intents, and purposes thereinafter mentioned (that is to say), to the use and behoof of John Latham and Thomas Potter, their executors, administrators and assigns, for and during the term of 99 years, in case his the said testator's daughter Anne Stanley should so long live, upon the trusts, and to and for the intents and purposes thereinafter mentioned and expressed concerning the same, and from and immediately after the expiration of the said term, and in the mean time subject thereto, to the use and behoof of George James Stanley for life, &c. with divers limitations over. And in case the said sum of £2,000 should at any time thereafter be paid off and discharged, then the said testator did will, order, and direct that the same should be paid unto and received by the said John Latham and Thomas Potter, or the survivor, &c. and the said testator did thereby will and direct that they his said trustees should, as soon as conveniently might be after the receipt thereof, lay out and invest the same in the purchase of freehold lands, tenements, and hereditaments, to be settled and conveyed to and upon the same uses, trusts, and purposes, as thereinbefore limited and declared concerning the said annual rent and premises aforesaid ; and in the nean time and until such purchase could be had, he directed that the said sum of £2,000 should be laid out and invested by his said trustees in government securities, and the dividends thereof should be paid to such person or persons as would be entitled to the rents of such lands if purchased.

In the year 1786 James Campbell paid off the debt of £2,000 to the testator; but the testator left his will unaltered in respect of the bequest of the £2,000 and died in the month of January 1789. There being no particular circumstances in the case respecting the mode in which this debt was paid off, or the appropriation of the money by the testator in his lifetime, the question now was whether this bequest was not adeemed by the debt being paid to the testator before his death.

Lloyd, in support of the bequest.

LORD CHANCELLOR (TIRLOW. When the case of Ashburner v. Macguire [2 Bro. C. C. 108] was before me, I took all the pains I could to sift the several cases upon the subject, and I could find no certain rule to be drawn from them, except this, to inquire whether the legacy was a specific legacy (which is generally the difficult question in these cases), and if specific, whether the thing remained at the testator's death ; and one must consider it in the same manner as if a testator had given a particular horse to A. B. if that horse died in the testator's lifetime, or was disposed of by him, then there is nothing on which the

VOL. IV. — 44

bequest can operate. And I do not think that the question in these cases turns on the intention of the testator. The idea of proceeding on the animus adimendi has introduced a degree of confusion in the cases wbich is inexplicable, and I can make out no precise rule from them upon that ground. As to the case of Attorney-General v. Parkin, [Ambl. 566], I collect from the note I read of that case, that Lord Camden would have had great difficulty in making those legacies contributory in the event of a deficiency of assets; and if so, I cannot conceive how they are to be taken as general legacies for any other purpose; they must have had all the consequences of general legacies, or none; they could not be specific to one purpose, and general to another. This I cannot understand. And I believe it will be a safer and clearer way to adhere to the plain rule which I before mentioned, which is to inquire whether the specific thing given remains or not. For where a testator gives by his will a particular sum of money, and he afterwards receives and spends it, I see no end to the confusion arising from the following any other line.

His Lordship therefore declared the legacy to be adeemed.'

ELEANOR IVANSO the following beque Phillott all such

FRYER v. MORRIS.

CHANCERY. 1804.

(Reported 9 Ves. 360.] ELEANOR IVANson, by ber will, dated the 21st of February, 1800, made among others the following bequest:

“I give and bequeath unto Charles Phillott all such sum and sums of money as my executors may after my death receive on the interest note of £400 given to me by Messrs. Cross & Co., bankrupts, Bath, either as a dividend under their commission in part thereof, or which they my executors may receive from the representatives of the late James Cross, deceased, or otherwise, in respect of such note, in trust for all and every the children of the said Elizabeth Fryer that shall live to attain the age of 21 years, equally to be divided between them.”

The testatrix died on the 26th of May, 1800. On the 28th of April preceding the sum of £385 188., remaining due on the note, was paid to her; and was paid by her into the hands of Messrs. Clement and Tugwell, bankers in Bath ; in whose hands she had no other money; but on the 12th of May, she drew the sum of £10 188.; leaving in their hands at her death the sum of £375.

The bill was filed by the infant children of Elizabeth Fryer against the executors, to have the money received on the note secured for their

1 See Barker v. Rayner, 5 Maj. 208 ; 8. c. 2 Russ. 122 (1826); Wyckoff v. Perrine, 37 N. J. 118 (1883).

the said respect sentatives,

benefit; and the question was, whether under the circumstances the

legacy was charged, that the pool blend the

The bill charged, that the payment was made without any demand by the testatrix; that she did not blend the money so received with her general estate, or with any other money; but kept it, except the sum of £10 18s., separate and apart from all the money she had; and that she had no expectation, that the money would have been paid in her life.

The answer stated, that some considerable time before the testatrix's death she did take legal steps to recover her debt; and also proved her debt before the Master in a cause, instituted by some of the creditors of the bankrupts. They admitted, there was no other property of the testatrix at the time of the payment, or at her death, in the hands of Clement and Tugwell.

Mr. Richards and Mr. Roupell, for the plaintiffs.
Mr. Romilly, for the defendant the executor.

THE MASTER OF THE ROLLS. [SIR WILLIAM GRANT.] It does not appear, whether these persons were her own ordinary bankers. This is not, as it is put in Swinburne, laying it up, and safely keeping it for the legatory; but merely paying it to these persons. It is impossible to support this as a subsisting bequest. The principle of ademption by receiving the thing given is certainly, that the thing given no longer exists; for, if after the receipt of it, it could be demanded, that would be converting it into a pecuniary, instead of a specific, legacy. It is said, this is pecuniary ; as it is a bequest of the money to be received. But that is the case of every bequest of a debt. If anything could be made of the circumstance of placing the money with these bankers, it is counterbalanced by the other circumstance, that she drew out a part of that money. That is treating it as her own. If she meant to appropriate it, and consider it as a legacy still standing, and binding upon her estate, she ougbt not to have touched it. This is not so much to be considered a partial ademption, as evidence of her having deposited it there, to be at her own command.

The bill was dismissed.

PATTISON V. PATTISON.

CHANCERY. 1832.

(Reported 1 Myl. & K. 12.) JAMES PATTISON, by his will, dated in April, 1829, gave to Margaret Forbes, among other bequests, the sum of £50 long annuities, which he described as purchased with £1,000, left him by the will of James Tillard, Esq.

The testator subsequently intermarried with Margaret Forbes; and by a codicil to his will, he confirmed to her, in addition to what she

« PreviousContinue »