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Snettisham, Norfolk, whereof she promised to make him the proper conveyance on demand; the other for £930, in part of £3106 which he had agreed to pay for all her estates in any of the Burnhams, or elsewhere in Norfolk, which she promised to convey to him on demand. (Vide note 1, end of case.)

Several points arose in the cause; the first raised by the bill was, whether the purchase of the lands in Norfolk by Pinckney Wilkinson was bound by the marriagesettlement. And, as to this point, the defendants, the Smiths, contended, that the purchase was made with trust-money advanced to Pinckney Wilkinson by the trustees for that purpose; and therefore was bound by the uses declared in the marriagesettlement. But to this argument it was answered, on the part of the plaintiffs, that no time being fixed by the articles, within which the purchase was to be made, Pinckney Wilkinson had his whole life to perform it; which he not having done, the personal estate must be liable to the payment of the £20,000.

2. The next question was, whether the gift to Mary Smith for life, with remainder to her children, was a good execution of the power and, upon this point, the cases of Alexander v. Alexander, 2 Vesey, 640, and Mallison v. Andrews, Ch. Hil. 1782 (cited ante, p. 26, n.), were cited, and said that a distinction had been made in Cavendish v. Cavendish, B. R. 11th February 1782 (also cited ante, p. 25, n.), between real and personal estate but his Honor being clear upon this point, especially upon the cases of Doe on the demise of Brownsmith v. Denny, Hil. 29 Geo. 2 (cited 2 Wils. 337), and Adams v. Adams, Cowp. 651. It was not further urged, but acknowledged that the excess was void.

3. The next question was, whether, if the appointment was bad, on account of the excess, the whole should be considered as unappointed. His Honor also stopped the argument of this point, by asking, whether it should not go by cy pres, and cited the case of Chapman v. Brown, 3 Bur. 1626. (Note: Not so. It was argued on this point on behalf of Mrs. Smith, on the authority of Humberston v. Humberston, 1 P. W. 332.—From Lord Redesdale's notes. There is also a note to the same effect in the 3d edition.)

[55] 4. The 4th point was, whether the codicil revoking the £40,000 legacy given by the will, whereas the will gave a legacy, properly so called, of £30,000 only, the other £10,000 being an appointment by virtue of the power, should revoke this latter £10,000 also. This question was likewise but slightly agitated, it being conceded by the counsel for Lord and Lady Camelford, that the revocation extended to the £10,000, and that Pinckney Wilkinson was become a purchaser of that moiety, by the fortune given to Lady Camelford on her marriage. (Note: Lord Redesdale's notes refer, as to this, to a MSS. case of Feast v. Feast.)

5. The next point was, with respect to the navy bills. It appeared that, at the time of testator's death, he was possessed of £18,000 navy bills; but, at the time of making the will, he was possessed of little more than £7000, having that day disposed of about £2000, the doubt was now what should pass. (Note: When it afterwards came before the Court, on the Master's report, the Lord Chancellor held the bequest specific; and that several funds passed which had been purchased with the navy bills. Vide S. C. on this point, 3 Bro. C. C. 160.)

6. The last question was, whether the transaction between Pinckney Wilkinson and his wife amounted in equity to a purchase of her estate, and, if not, whether he should account for the rents and profits thereof, and whether the Smiths must not elect between the estate descended from the mother, and their claims under the will.

These points were argued by Mr. Solicitor-General (Macdonald) for the plaintiffs, Mr. Scott and Mr. Hood for Lord and Lady Camelford, Mr. Ambler for the infant defendant, Mr. Price and Mr. Partridge for the defendants Smith and his wife. The Reporter was absent when his Honor gave his opinion; but it was to the effect following: -his Honor declared the will of Pinckney Wilkinson and the second codicil thereto, to be well proved; and that no part of the trust-funds had been vested in the purchase of real estates; that the whole of the trust-funds had been appointed, or satisfied by the will and codicils of the testator, and by the portion advanced on the marriage of Lady Camelford, and that the portion so advanced was to be considered as a satisfaction as well of her share of the £20,861, 14s. 9d. as of the £30,000 legacy bequeathed to her by the will. He also declared the appointment in favour of the defendant Mary Smith invalid, and that the whole of this share appointed to her for her separate use, is, in order to effectuate the testator's general intention, to [56] be considered to vest an

estate-tail in the lands directed to be purchased with that share, in her, Mary Smith, with a remainder in fee to the defendant Lady Camelford. And his Honor further declared, that the real and personal estate of Mary Wilkinson, settled by the deed of the 13th December 1735, is to go according to such of the trusts as are capable of taking effect, subject to the election to be made after the accounts directed shall have been taken, and gave general directions for an account thereof, and of what navy bills, exchequer annuities, long annuities, and annuities of the year 1777, the testator was entitled to at the day of the date of this second codicil, and at the time of his death, and whether the same were sold or paid off, and how the money has been applied, to make a separate report as to that enquiry; and also whether the testator possessed himself of any part of the real or personal estates of Mary Wilkinson, and declared, that whatsoever he should so have received is to be considered as a debt due from him, to be answered out of his personal estate (Note: Lord Loughborough, C., held this only referable to any principal sums, and by no means to any rents and profits received during the coverture: his Lordship, however, added a declaration to that effect. See 2 Ves. jun. 715, 716. Vide also note 2, end of this case); and that the share of the sum of £20,861, 14s. 9d. appointed in behalf of Mary Smith, should be laid out in land, and be settled to the use of two trustees in trust for her, and the heirs of her body; she to have the rents, &c., to her separate use, and, in default of issue, to Lady Camelford, her heirs and assigns for ever, and reserved all further directions. (Reg. Lib. 1785, B. fol. 705 b.) (The Editor finds the above statement of the decree correspond exactly with Reg. Lib.)

(1) Two bills of review were afterwards filed; under one of these, evidence was introduced (upon the foundation, as it seems, of what appears at the top of p. 54, antea), from whence it appeared, that Mr. and Mrs. W. had executed a direction to the trustees of the fund that it should be invested in the estate which he had so purchased. This, of course, occasioned a reversal of so much of the original decree, and a declaration agreeably to such joint direction. Vide S. C. on the Bills of Review, 2 Ves. jun. 698, 701, 715, under the name of Smith v. Lord Camelford.

(2) Lord Loughborough, C., held, on one of the bills of review, that even under this decree, the husband was only chargeable with any part of the principal of his wife's separate property, and by no means in respect of rents and profits received during the coverture. His Lordship, however, added an express direction to that effect. See 2 Ves. jun. 698, 715, 716.

CARR against ELLISON. [9th and 16th May 1786.]

[S. C. 2 Dick. 796, quod vide.-Master of the Rolls for Lord Chancellor.-Money to be laid out in land; an infant cannot [dispose of it by will as money: but it will on the infant's death descend to his heir; who may take it either way.] (Note: And the Court, where it ever interferes, guards against every thing which may tend to change the nature of the property; as between the representatives of infants, lunatics, &c. See per Lord Eldon, C., in Ware v. Polhill, 11 Ves. 278.)

By a private act of parliament, money, which had been received as the price of lands, sold for the purpose of easy division, was ordered to be laid out in the purchase of lands, under the direction of this court, to be procured by petition to the Lord Chancellor. Under the uses declared by the act, a female infant had such an interest, that she might have elected to take it as money, absolutely; but, while it continued land, it was subject to a remainder over. By her will, she disposed of it both ways, as money and land; the will was duly attested to pass real estate. The question was, whether the money could pass by this will, or must be considered as land; and therefore not to pass by the will of an infant.

[The plaintiff claimed it as heir at law, ex parte materna.]

[57] Master of the Rolls [Kenyon]. Money to be laid out in land must descend as land, from generation to generation, Bowes v. the Earl of Shrewsbury, 5 Brown's Parliament Cases, 269. The infant was seised of this, as of a real estate. During her infancy, she could not vary the nature of the estate. In the case of Cave v. Cave, a purchase was made, with personal estate, but subject to be considered as the

personal

estate of the child during infancy. (See Lord Eldon, C., in Ware v. Polhill, 11 Ves. 278.) The court is, in this case, bound, by the act of parliament, to lay the money out in land, even though the person beneficially entitled might convert it again immediately. A petition must be presented to the Lord Chancellor, agreeable to the terms of the act of parliament. (Reg. Lib. 1785, A. fol. 390.) (Note: The plaintiff accordingly presented his petition, which came on for hearing with the cause; whereupon and on debate, &c." the Court declared that the plaintiff as the heir ex parte materna of the infant E. S. deceased, was entitled under the act of parliament to the sum in question and he electing to take it instead of having it laid out in land, the funds were ordered to be transferred to him. R. L.)

The Earl of TANKERVILLE against FAWCET. [May 9.]

[Vide S. C. 1 Cox, 237.-Master of the Rolls for Lord Chancellor.-Personal estate not to exonerate the real, of a debt not contracted by the party. (Vide S. P. Lawson v. Hudson, and D. Ancaster v. Mayer, 1 Bro. C. C. 58, 454, with the Editor's notes. Another point also seems to have been argued in the principal case. Vide 1 Cox, 239. See also in the judgment, with regard to the specific bequest.)

Fawcet, having contracted the debt in question, which was by simple contract, and did not affect his real estate, devised his real estate to Colville, who, afterwards, charged this debt upon the estate, so devised to him. Colville by his will gave a leasehold estate to his wife, to whom he also gave his personal estate. This bill was filed, praying that the personal estate of Colville might exonerate the real, of this debt.

Mr. Scott, for the executrix. The rule is well understood, where the debt is not the debt of the person whose personal estate is called upon, the personal estate shall not be applied, in payment of it, but the land must go cum onere; but this was not the debt of Colville.-Evelyn v. Evelyn, 2 Wms. 591. If the money had been advanced to Colville himself, the personal estate would have been liable; but it consisted of an original debt of Fawcet's, and a large arrear of interest upon that debt.

Mr. Mitford [on the same side]. In Lewis v. Nangle (Ambler, 150, and in Mr. Cox's note to Evelyn v. Evelyn, 2 P. W. 664, and 1 Cox, Ca. Ch. 240), 2d November 1782, it was a mortgage of the wife's estate for her debts while sole, and for a further sum borrowed. It was decided, that the estate alone was liable, and the husband only bound to keep down the interest.

[58] Master of the Rolls. The general personal estate shall be applied in favour of the heir, be he hæres natus or hæres factus; but not so as to defeat a specific devise of the personal estate. If this be a specific devise, there is no doubt it is free from the debt. If it were given, in these terms, to a person who was not the general representative, it would be a specific devise; does it make it otherwise, that, in this case, the wife is general representative? I am strongly inclined to think that it is a specific devise. (Note: The report in 1 Cox, 239, states his Honor to have been " clearly" of opinion it was a specific devise. Lord Eldon, C., says, in Milnes v. Slater, 8 Ves. 305, "Every devise of real estate, whether in general terms or not, is in its nature specific." The leasehold there was classed with the real estates.)

Where an estate descends, or comes to one, subject to a mortgage, although the mortgage be afterwards assigned, and the party to whom it descended, entered into a covenant to pay the money borrowed; yet that shall not bind his personal estate. Here it was a very honourable transaction, on the part of Colville, as to the creditor. The general reasoning on the subject is all in Evelyn v. Evelyn. The specific devise is not liable to the debt. Bill dismissed. (Reg. Lib. 1785, A. fol. 356.)

CAREY against ASKEW.(1)

[Vide S. C. 1 Cox, 241, and 8 Vesey, 492, 498, 499.]—Master of the Rolls for Lord Chancellor. [C. by his will devised all his freehold and copyhold estates to his two daughters A. and M., and all other daughters that he might thereafter have, as tenants in common in fee. He had afterwards another daughter L. He then gave directions for another will, by which he gave all his real estates to his two eldest daughters, and a sum of £15,000 to his daughter L. The attorney took the minutes of this second will in writing; but before it was prepared, the testator died. These

minutes were proved in the Spiritual Court as a testamentary paper. (See Dyer, 72 a. In which, before the stat. of frauds, a will drawn from notes taken down in writing by counsel from the testator's mouth, was held sufficient to pass lands. From Lord Redesdale's notes.) Held, 1st. This paper being proved in the Spiritual Court is sufficient to pass the copyhold estate. (2) 2d. But is so totally void as to the freehold, that it will not put L. to her election, (3) and she therefore will take her share of the freeholds under the first will, as well as the £15,000 under the second. 3d. The testator gave the £15,000 to his daughter L., to be paid to her at 21, or marriage, without interest for the same in the meantime; but if she died before 21, or marriage, then the £15,000 was not to be raised, but was to sink into the residue of his personal estate. And he directed that out of the interest of the £15,000 certain sums of money should be applied for the maintenance of L. The interest of this legacy beyond the maintenance, is vested in L. and must be appropriated to accumulate for her benefit.] (Vide S. P. Green v. Pigot, 1 Bro. C. C. 103.)

In this case there were two wills, one duly executed to pass lands; the latter was a paper of instructions for a new will, which the testator did not live to execute [or even see]; this latter had been proved as a will [in the Ecclesiastical Court; and administration granted accordingly upon suit].

In the [unexecuted instrument] the testator had given the plaintiff £15,000 to be paid at twenty-one, or marriage, with interest in the mean time; but, if she died before, to sink. This raised a question, whether the legacy should be appropriated, and whether interest should be paid, or no interest be raised, till the legacy was payable. [There was a distinct provision out of the interest, for maintenance.]

The other question was, whether copyholds, surrendered to the use of the will, would pass by the will not duly attested to pass lands, [which was not even seen by the testator, being only the fair copy of a draft prepared by his attorney, and altered by the attorney in pursuance of the testator's directions [see Dyer, 72 a]; but after the testator had left him].

[59] Upon the opening, his Honor alluded to Tuffnell v. Page, in the note on 2 Wms. 261. [See also note 2 at end of this case.]

Mr. Mansfield and Mr. Madocks (for the plaintiff). In order to pass the copyhold, it must be a writing signed by the testator. This is expressly required by the statute of frauds. This writing is not a regular writing; it is only an instruction upon which to form a regular writing (Note: Lord Redesdale's notes state this "not" to be "the fact") but it is insisted, that, for this purpose, whatever the ecclesiastical court calls a will shall be sufficient. If that be so, a nuncupative or parole will would do. [See 2 Bro. C. C. 57, note (1).] A surrender has no operation without a declaration of uses, which is here wanting, Wagstaff v. Wagstaff, 2 Wms. 258.

Then, as to the question, when plaintiff is entitled to the £15,000. She is entitled immediately. The money must be immediately appropriated, and the interest must accumulate for her benefit.

Mr. Attorney General [Arden] and Mr. Scott argued that the copyholds passed, and the legacies did not vest.

Master of the Rolls [Kenyon]. The first point is as to the legacy of £15,000. If there were no direction as to interest, the law is, that, where a parent gives a legacy to a child unprovided for, the child shall have interest from the day of the parent's death; but here the interest must pass by the very words of the will. I think the money must be immediately raised, although the child may not live to attain the age, or day of marriage, Green v. Pigot (ante, vol. 1, 103).

2. Respecting the copyholds, I hardly expected to hear it so seriously argued. It has been held, that a will, received by the ecclesiastical court, will govern the surrender of a copyhold. It would be removing landmarks to entertain a doubt upon the subject. I am clear, therefore, that the will passed the copyhold.

(1) The Editor could not find any entry in Reg. Lib.; which would have been a matter of regret from the defective report of the case, if the deficiencies were not supplied by the contemporary notes of Mr. Cox, Sir Samuel Romilly, Lord Redesdale, and Lord Eldon, C., 1 Cox, 241, and 8 Ves. 492, 496, 497, et ut supra. The Editor particularly desires to refer the Profession to them; and especially to the point of election, which Mr. Brown has wholly omitted. The additions, &c., in the text above between brackets are from Lord Redesdale's notes.

(2) Lord Redesdale's notes state Tuffnell v. Page, which is reported Barn. Ch. 9, and 2 Atk. 37, to have been cited in the opening for the defendants; establishing the point as clear law; and the report of the principal case by Mr. Cox mentions that the M. R. would not put the counsel to argue it. Upon Tuffnell v. Page, see per Lord Hardwicke, C., in Attorney General v. Andrews, 1 Ves. 225. And in Tuffnell v. Page (as in 2 Atk. 38), the Lord Chancellor referred to Attorney General v. Barnes, 2 Vern. 598, as having settled the doctrine. See also Hargr. Co. Litt. 111 b.

(3) The Editor wishing to render this edition as complete as lies within his limited powers, thinks the Profession may be gratified by having the circumstances of the case, as to the point of election, stated here in one connected view, from the notes of Sir Samuel Romilly, and of Lord Eldon, C., as in Sheddon v. Goodrich, 8 Ves. 429, 496, 497: “In Carew v. Askew, which is not reported upon this point, the father of the plaintiff seized of copyhold and freehold estates, the latter surrendered to the use of his will, by his will dated in November 1773, charging his real and personal estate with his debts and legacies, devised all his freehold and copyhold estates to his wife for life, " and after her death to his two daughters, and any he might have by his wife, equally "share and share alike. He had two daughters, defendants, and afterwards another, the plaintiff, by a second marriage. He afterwards made instructions for a will; but died before execution, charging his debts and legacies, and giving to his daughter "by his second wife £15,000, with a direction for maintenance. He then gave all his "freehold and copyhold estates, and the residue of his personal estate, to his two daughters by his first wife. Probate of the instrument was granted as to the personal estate. It was contended by the plaintiff, that the copyhold estate did not pass by an unexecuted will. Another question was as to election by the plaintiff. Lord "Kenyon said it was not a case of election. In that case, Lord Redesdale cited Stapleton " v. Lord Colville to the same effect."-From Sir Samuel Romilly's note.

The Master of the Rolls (Sir L. Kenyon) also said, that as his powers of discrimination were far inferior to those of Lord Hardwicke, he could not find himself warranted in agreeing altogether with Boughton v. Boughton, 2 Ves. 12.-From the Editor's MS. note of the statement of Sir Samuel Romilly on the above occasion.

Lord Eldon, C., says, "I have looked at my own note of Carew v. Askew; and Mr. * Romilly's account of it is very correct. Mr. Mansfield argued in support of the distinction between Boughton v. Boughton, and Hearle v. Greenbank. I argued it on the other side; and mentioned most of the topics, that have been argued on that side in this case. Lord Kenyon said, the distinction was settled, and was not to be * unsettled; that if a pecuniary legacy was bequeathed by an unattested will, under an express condition to give up a real estate by that unattested will attempted to be disposed of, such condition being expressed in the body of the will, it was a case of election; as he could not take the legacy without complying with the express condition. But Lord Kenyon also took it to be settled as Lord Hardwicke has adjudged, that if "there was nothing in the will but a mere devise of real estate, the will was not capable * of being read as to that part; and unless according to an express condition the legacy was given so, that the testator said expressly, the legatee should not take, unless that condition was complied with, it was not a case of election. The reason of that distinction, if it was res integra, is questionable. After the doctrine has been so long settled (though with Lord Kenyon I think the distinction such as the mind cannot well "fasten upon), it is better the law should be certain, than that every Judge should speculate upon improvements in it."

[60] WEBB against JONES. [May 16, 1786.]

[S. C. more correctly 1 Cox, 245.]-Master of the Rolls for Lord Chancellor.-Conversion.-Exoneration.-Estate devised to be sold for payment of debts [and legacies, in the first place; the residue of the proceeds he gave in moieties, and directed that in certain contingencies one of such moieties should sink into and be deemed part of his personal estate. Under this direction, held, the testator's interest was manifest to exonerate the personal'estate].(1)

The testator devised his real estate to be sold, and the money to arise by the sale to be applied to pay mortgages and other debts, (1) the residue to be added to his personal estate.

C. IX.-2

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