3. Henry Burgh, who claimed as one of the descendants of Anne Coppinger, having been born since the testator's decease, whether he could claim under the will.

4. One of the legacies being to the younger children of A. who had a daughter, but also a son younger than the daughter, which of these should take.

The Reporter did not hear the opening for either the plaintiff or defendant, but understands that it was argued by Mr. Ambler, Mr. Scott, and Mr. Clifford, for the plaintiff; Mr. Price, Mr Selwyn, Mr. Robinson, and Mr. Graham, for the defendants, to the general effect following:

With respect to the first, and most material question, the plaintiff's counsel contended, that the words were merely recommendatory. Mr. Ambler and Mr. Scott attempted to argue, upon the interpretation of these words, as being equivalent to pto, rogo, fidei tua committo; insisting that the words dying request, amounted only to an earnest wish of the testator, but nothing further; that they were not strong enough to raise a trust according to the notions of the civil law.

His Honor seeming inclined to lay out of the case the civil law, wished it to be argued upon the principles laid down in former cases. The counsel, in consequence of this, contended that the rule laid down, and adhered to by the court, was, that there must be a certainty of the gift, and of the object, to whom it is given. As to the gift itself, it was sufficiently marked; but as to the objects, there could be no certainty whatsoever. It was difficult to decide, whom the testator meant by descendants; whether those that were living at the time of making his will, at his own death, or those born after, or those who should be in esse at the death of Peter Pierson: it was so [40] difficult to determine who the particular persons intended were, that it would be impossible to decide the question.

His Honor seemed inclined to defer the question, as, prima facie, there seemed to be no occasion to go into it, until Peter Pierson should be dead without issue; but, being much pressed to decide, by the suggestions of plaintiff's counsel, of the disagreeable situation in which the plaintiff stood, not knowing how to treat this property, or how to settle, or dispose of it, without the direction of this court; his Honor waved his opinion, and consented to determine it. Mr. Scott said, that the will itself afforded an argument in favour of the plaintiff; that the interest and dividends of the residue, after payment of the annuities, were given to Peter Pierson, for his natural life; and then, after all the annuitants were dead, the capital was given to him absolutely.-The counsel cited the cases of Harland v. Trigg, ante, vol. i. 142, and Wynne v. Hawkins, Ibid. 179. In Harland v. Trigg, the word family, was said to be a word of uncertainty; so is the word descendants: as to Wynne v. Hawkins, the words not doubting, were held insufficient to create a trust. With respect to Nowlan v. Nelligan, Ibid. 489, the property was not given to the holder of the fortune, but to the executors themselves. They also cited, Hob. 33; 2 Eq. Abr. 291. Bland v. Bland, 1745, Le Maitre v. Bannister, 26 Nov. 1770, where the testatrix gave her fortune to Capt. Roach, and, if he should die without issue, then she recommended it to him, to do justice to her daughter, if he should think her worthy of it; but, if any unforeseen accident should make the whole acceptable or serviceable to him, he may dispose of it if he should think fit. It was held not to be an imperative bequest. In the present case, if Peter Pierson is not to have the absolute disposal, the bequest is nugatory; though it is given to him, his executors, administrators, and assigns, it is impossible for him to use it as his own. The apparent clause upon the will is so absolute, that the court cannot force a trust upon the legatee.

With respect to the other question, as to the payment of the legacies, it was insisted, the testator had sufficiently shewn his intention, by excepting the two legacies of £500 and [41] directing them to be paid in Sterling money. His residence being in Ireland, was also a strong circumstance to shew the same intention: and the case of Saunders v. Drake, 2 Atk. 465, was relied upon as in point.

Mr. Price, Mr. Selwyn, Mr. Robinson, and Mr. Graham, for the defendants, insisted that this case was totally different from all the authorities cited; in all of them the power was in the first taker. If the matter were res integra, it might be very proper to resort to the Roman code; but, in the present state of judicial decisions, such a reference was totally unnecessary. That the words used here are sufficiently strong to create a trust, appears from the cases of Eales v. England, 2 Vern. 466; Pre. Ch. 200. S. C. Harding v. Glyn, 1 Atk. 469. Buggins v. Yeates, 9 Mod. 122.

With regard to the uncertainty of the objects, the descendants are undoubtedly all

those who shall be living at the death of Peter Pierson without issue; as in the case of Baldwin and Carver, Cowp. 309. They may divide the property among them; the power left to Peter Pierson is apparent, and he may execute it without difficulty. With respect to the absolute gift to Peter Pierson, the preceding clause only gives it to him for life, and is a mark of the intention to control this property.

As to the payment of the legacies, the testator had left an English executor to manage his property here, and an Irish executor to manage that in Ireland, who, when he had so done, was to transmit the plaintiff's property to the English executor, in whose hands they were to be consolidated. This afforded an argument, that the legacies were to be paid in Sterling money.

Mr. Ambler, in reply. There are two questions in this cause, one upon the currency in which the legacies are to be paid, the other on the interest Mr. Pierson takes in the residue. The first question is not an object to the plaintiff, but the authority of Wallis v. Brightwell, 2 Wms. 88, and Phipps v. Earl of Anglesea, 1 Wms. 696, shew the legacies must be paid in the currency of the country where the will is made. There is also a case in 2 Atk. 465, to the same effect.

[42] His Honor interrupted Mr. Ambler, by saying he was tied down by the authorities.

Mr. Ambler. Then as to the words, whether they are sufficiently imperative to raise a trust. In order that they should be sufficient for that purpose, the intention must appear either by the words themselves, by the object to which the testator applied them, or upon the face of the will. There has been no case determined on these words: "It is my dying request." The word request denotes free will in the person taking the legacy. It is rather a stronger word than desire, but still leaves it in the breast of the party taking to do the act or not. It would be extraordinary, if such words should be construed as if he had raised an express trust. The cases upon the subject are Harland v. Trigg, Wynne v. Hawkins, Bland v. Bland, the Countess of Bridgewater v. Duke of Bolton, 1 Salk. 236.

As to the purposes of such a trust, they will make a difference in the construction; for, where such words occur, and the purpose is for the payment of debts, it is held a trust, the object making it so. In such a case, even the word recommend will constitute a trust but the objects here are the descendants of Mrs. Coppinger, who are very numerous, many of them unknown to the testator, and of whom many more may be born during Mr. Pierson's life-time. They are not objects of the testator's bounty; he has left it in Mr. Pierson's discretion what proportion he will give to each. This leads to the consideration, whether it appears, from the whole will, to be the testator's intention to raise a trust.

In Cunliffe v. Cunliffe (Ambler, 686), before the commissioners in 1770, it was a devise of a sugar-house, to the testator's nephew Ellis Cunliffe, and, in case his nephew should die without issue, the testator recommended it to him to give it to his brother. The court was of opinion that it was not sufficient to raise a trust. It is true, it has been said, that, in that case, the question turned upon the word recommend; but, I say, it was upon the general circumstances of the case; for the word recommend would have been sufficient had the trust been for the payment of debts.

[43] Bland v. Bland, in 1745, shews, that wherever the first gift is of the absolute property, such a recommendation following it shall not raise a trust. In that case, Lady Bland gave the estate in question to Sir John Bland, and earnestly requested, that in case he should die without issue, he would dispose of the estate, or of so much thereof as he should die seised of, so that the estate might be enjoyed by her daughter. It was held to be no trust, inasmuch as the words, so much as he should die seised of, shewed he might dispose of the whole; and that it was like the case of Attorney-General v. Hall, Fitzg. 314. In both these cases, the whole was given absolutely; and, in this case, the whole is given absolutely and emphatically to Pierson. It is not doubtful that he meant to give the whole; for he has mentioned his executors, administrators, and assigns. Nothing remained in the testator to be given over. In the Countess of Bridgewater v. the Duke of Bolton, the devise was to the devisee, to be given by him to his children, if he should think proper: it was held to be a fee in the devisee. In the present case, it is highly improbable that the testator meant a trust. Mr. Pierson appears to be the sole, or at least the chief object of his bounty. He was with him in Ireland, and had been abroad with him, and the testator had taken him from the profession of the law: but, if Mr. Pierson should have no children, it was then the

testator's wish that he should dispose of it among the descendants of Anne Coppinger, many of whom the testator could not know, and many might be born during Mr. Pierson's life-time.

The Lord Chancellor [Thurlow], in

laid great stress on

the testator's having given legacies to the persons for whom the trust was to be raised. In this case, the testator has not directed Mr. Pierson to give any specific sum to any of them. Here is no trust in Mr. Pierson, in case he should have children. It is extraordinary there should be a trust if he had not, and none if he had. The construction will make the testator act absurdly; for, having a regard to Mr. Pierson, he will have given him no power to make a settlement. Upon the death of the annuitants, on this construction, the trust in Salt will expire; but a new trust will commence in Mr. Pierson, in case of his dying without issue." Another reason against this operating as a trust, is the uncertainty and impracticability of the devise. I do not mean an uncertainty in the words, which are [44] just as certain as family or relations; but an uncertainty in point of execution as a trust. It is from this sort of uncertainty, that the court has always said the word relations shall mean next of kin. In this case, the persons will be equally numerous and uncertain; it therefore could not be intended as a certain trust. The word family has been held, in Harland v. Trigg, to mean nobody. In Wynne v. Hawkins, Lord Thurlow said he had decided that case upon the uncertainty of the object. There is no case where the word has been descendants except one, where its signification was laid down (Crossley v. Clare, 11 April 1761) by the additional words living near Seven oaks in Kent. So, in General Honeywood's case, the words were relations who should claim within two years. ([Ambler, 708.] Vide 1 Bro. C. C. p. 33.) With respect to the impracticability of the devise, it is sufficient to shew that it may be impracticable. Who are the objects the descendants living at the making of the will, at the death of the bishop, or of Mr. Pierson? If at the making of the will, or the death of the bishop, are they to be entitled upon surviving Mr. Pierson? In order to be construed a trust, it must be such a one as Mr. Pierson could execute without the assistance of a court of equity: yet here Mr. Pierson is expected to find out all the descendants, and to give something to every one of them. If he cannot execute the trust, it never could be intended as such. Suppose Mr. Pierson should make no disposition, is the whole world to be searched over for descendants of Anne Coppinger? There is another difficulty; he is under the necessity of giving something to every one; if he does not, the whole will be void, Menzey v. Walker, Forrest. 72. If it was among the descendants of his grandfather, it would be the same thing. In Eales v. England, Pre. Cha. 200; 2 Vern. 466, the first taker had only an estate for life given to him. In Harding v. Glynn, 1 Atk. 469, it was clearly a power; it was to give it to such of his relations as she should approve. Nowlan v. Nelligan is not like this; the property was given to the trustees, not to the tenant for life.

Master of the Rolls [Kenyon] (after stating the case). There are four questions arising upon this will. 1st. Whether the clause is to be considered as imperative upon Pierson, so as to create a trust and under which the descendants of Anne Coppinger [45] have an interest, which cannot be disappointed. 2d. Whether the legacies, which are indeterminate as to the fund, are to be paid in sterling money, or in the currency of the country where the will was made. 3d. The third question (which was raised by Mr. Bumstead) in behalf of the child in ventre sa mere, whether he is entitled to a share of the legacy given to the children of Burgh. 4th. Whether the daughter could take as a younger child, as there was a son younger than her who was heir-apparent.-As to the first, which is the most material question, if it is one of those duties of imperfect obligation (as the civilians term them) which bind the moral character of men, but where courts of justice cannot interfere, it will not entitle me to do it, or to go beyond those rules which have bound courts of justice. It is better to go upon the principles by which others have decided, than to vary from them, by spelling out little circumstances in a case, as the ground of determination. The principles appear to be those which are recognized by Lord Thurlow, in the cases of Harland v. Trigg [1 Bro. C. C. 142], and Wynne v. Hawkins [1 Bro. C. C. 179], that where the property to be given is certain, and the objects to whom it is given are certain, there a trust is to be created. And it would be a lamentable case, if this court were to raise a distinction upon slight words, such as peto, rogo, fidei tuæ commendo, and such expressions of the civil law; and if the decisions of cases were to turn upon such

that the limitation went beyond the rules of law, and could not take place as an executory devise. The Common Pleas held the estate not to be void, but vested in the second son, to preserve the general intent; and that he took to him and his heirs, determinable on their accession to the paternal estate. The questions in this case require more consideration; I can only retain the bill, and permit the parties to bring ejectments.

But it appearing the legal estate was in the trustees, his Lordship ordered a case, for the opinion of the court of King's Bench. (Reg. Lib. 1785, B. fol. 752.) (See the report of the arguments, &c., 2 T. R. 241. And see it on the equity reserved, 2 Bro. C. C. 344. The 3d edition refers for some material cases on Powers to Bristow v. Warde, Wilson v. Piggott, Routledge v. Dorril, and Whistler v. Webster, 2 Ves. jun. p. 336 to 372.

(1) Lady Burlington devised to the late Duke of Devonshire for life, and after his decease, to the use of his children for such estates, and in such shares and proportions, and subject to such powers, provisions, conditions, restrictions, and limitations, as he, by deed or will should appoint; he by will devised the premises to the younger sons in strict settlement; held a good execution of the power. (The case is reported fully 7 T. R. 741, note. See it much commented on by Mr. Sugden, in his work on Powers, p. 412.)

(2) Mallison v. Andrews. Power to a feme covert to dispose by deed or will of £1300 to such of her children, in such manner and form, and to such uses and purposes as she should appoint. She gave £400 to R. absolutely, £400 to E. at twenty-one, and £500 to P. that is, the interest and dividends to P. for life, and after her decease the principal to be divided among her children.-Under the very full words of this power, the appointment was held to be well made. Chanc. Hil. 1782. (Mr. Sugden observes this note is erroneous; and states that most of the cases in Mr. Brown's notes are misreported. Sugd. on Pow. p. 418.)

BATTELEY against WINDLE. [28 January 1786.]

Appointing an executor trustee, shall not take from him the residue. (S. P. Pratt v. Sladden, 14 Ves. 193, 199. Quod vide. Sir W. Grant, M. R., observes there, that the result in the principal case above is correct, although it is rather imperfectly stated.)

The testator, by his will desired his brother would be executor and trustee for his sister Batteley, and her children, and gave him no legacy.(1)

The question was, whether he should take the residue; Mr. Scott contending that by this will he was a mere trustee, and not entitled to the residue as an executor.

Lord Chancellor [Thurlow]. The question is, whether the word trustee shall alter the sense of the word executor? I think it must be taken reddendo singula singulis, and that he is a trustee only as to the trust-fund, and in other respects an executor. His Lordship therefore decreed him the residue. (Reg. Lib. 1785, A. fol. 270 b.)

66

(1) The will (as in Reg Lib.) was as follows:-" First, I desire my debts and funeral expences may be paid as soon as can be ; and then all my money in the funds I would remain and increase the interest to the principal so long as my brother Charles B. "shall live, and, after his death, then I would give the interest from that time arising to my sister Batteley, to bring up and provide for herself and children; and at her death be parted amongst them equally, share alike: All my furniture I would have sent to my brother Charles B. And I do desire my brother Richard Windle to be my "executor and trustee to and for my sister Batteley and her children." Reg. Lib.

It appears from Reg Lib. that the defendant did not make the point by his answer; on the contrary, he submitted to account, and to transfer the balance in his hands as the Court should direct. His counsel, however (as it seems), suggesting the point in his favour at the hearing, the Court declared him entitled to the residue of the testator's personal estate not specifically bequeathed. Reg. Lib.

[32] FORD against COMPTON. [7, 10, 13, and 22 February, 1786.]

An original letter stamped, after production, to make it evidence. (See Hearne v. James, 2 Bro. C. C. 309.) [Specific performance of agreement decreed upon an offer by letter, which was forthwith accepted by another letter in reply.(1)]

In a cause for specific performance of an agreement for a lease of an house, the bill called upon Dr. Compton to produce the original agreement, which was by letter from him, and an affirmative reply on the part of the plaintiff, and they gave him notice to produce the letter in reply, in order to read it at the hearing: and, to provide for his not producing it, they got a copy, which was in their own possession, stamped, in order to read that. At the hearing, Dr. Compton produced the original letter.

Mr. Scott, for the defendant, objected, that the copy could not be read, because the original was in court; and that the original letter could not be read, because it was not stamped; and he contended it could not now be stamped, because the twenty-one days limited by the act of parliament were expired.

Mr. Mansfield, for the plaintiff, said, the Court of Exchequer had determined, that, upon payment of the penalty, the instrument might be stamped, although the time was expired. If Dr. Compton had destroyed the original, this stamped copy would have been good evidence. The legislature, in forming the stamp acts, did not mean to alter the rule of evidence.

The plaintiff desired the cause might stand over to get the original stamped.

Lord Chancellor [Thurlow] observed, that, if a stamped original was lost, it would be difficult to get a copy stamped.

But the cause stood over, and they got the original stamped, and produced it in evidence the next day. (Reg. Lib. 1785, A. fol. 204 b.)

(1) The letter of the defendant offered the plaintiff a lease upon certain terms, and insisted on a reply by return of the post. The plaintiff notified his acceptance of those terms forthwith accordingly. The defendant afterwards granted a regular lease of the premises to another person, who was a party to the suit. The Court decreed the material defendant specifically to perform his agreement for a lease to the plaintiff, with costs to be paid by him; and it set aside the other lease, which he had so granted in fraud of his contract. Reg. Lib.

[33] DOYLEY against The Countess of Powis.

[S. C. 1 Cox, 206, quod vide.]—A deposit made on opening a bidding having been laid out in the public funds, this deposit is considered as part of the purchase money paid, and therefore the depositor is not entitled to the dividends accruing between the time of the deposit and the completion of the purchase; but only to interest on the deposit at 4 per cent. (See Poole v. Rudd, 3 Bro. C. C. 49. And see in Smith v. Jackson, 1 Madd. Rep. 621, and the Report 1 Cox, 206.)

A sum of £2000 was deposited, by Lord Beauchamp, upon an opening of a bidding, upon the sale of an estate in this cause, and had been by order laid out in the funds. The [33] stocks rising, Lord Beauchamp, who is ordered to complete his purchase, claims the advantage of the rise in the payment of his purchase-money, the money paid in being only a pledge.

But Lord Chancellor said, the difference was where money was a mere pledge, and where it was part of the purchase-money, which it was here; and if there had been a loss, the purchaser could not have been called upon to pay more than his purchasemoney. When the money is paid in, it becomes part of the purchase-money.

A similar order had been made in the case of Ambrose v. Ambrose, on the 5th of December last. (Reg. Lib. 1785, A. fol. 172.) (And see also Poole v. Rudd, 3 Bro. C. C. 49, and 1 Madd. Rep. 621.)