demurrer over-ruled, there could not be a second demurrer but that it was an answer to that rule, in this case, that this was an amended bill.

The demurrer was over-ruled on another ground, that the plaintiff had stated a partnership, and prayed an account. (Reg. Lib. 1785, A. fol. 438.)

[67] ROUNDEL against CURRER. [24, 26, & 27 May 1786.]

Master of the Rolls for Lord Chancellor.-John Richardson Currer, having an estate for life under the will of Sarah Currer, with remainder in tail to Henry Richardson, devised his own estate, together with the estate under the will to trustees to uses by which the tenant in tail would take only a life-estate, but provided that his own estates should not be conveyed until the tenant in tail should suffer a recovery, and bar the remainders in the former will. Henry Richardson did acts of ownership, and prepared for, but never suffered, the recovery, and died.-This is not a case of election, but a condition precedent which the tenant in tail not having performed, John Richardson Currer's own estate never vested, and the estate of Sarah Currer is not affected by it. (S. P. D. of Montague v. Ld. Beaulieu, Dom. Proc. 3 Bro. P. C. 277, octavo edition, and 6 vol. 232, folio edition. S. C. Ambler, 533, 534.)

Sarah Currer, by will, dated 5th August 1778, devised her real estates to John Richardson for life, without impeachment of waste, provided he took the name of Currer; remainder to his first and other sons, in tail male; remainder to her cousin Richard Richardson, son of her cousin Henry Richardson, in tail male; remainder to (Henry) the second son of Henry Richardson, in tail male; remainder to the right heirs of Dorothy Currer and gave the first and other takers, powers of jointuring, and to provide portions for younger children.

:

After the death of the testatrix, John Richardson entered and took the name of Currer. The personal estate not being sufficient, and there being a charge, he sold a small part of the real estate for the payment of debts; and, in order to avoid the sale of more of the land, paid £5000 of the debts with his own money, and took assignments of the debts.

Henry Richardson, and Richard his son, the devisee over in tail, both died in the life-time of John Richardson Currer, by which the remainder in tail vested in Henry Richardson, the second son.

John Richardson Currer purchased additional estates, and, being desirous that the two estates should go together, he made his will 10th October 1763, reciting the will of Sarah Currer, and the other matters before stated: he devised, all his own lands (except one estate otherwise disposed of), and also the lands devised to him by Sarah Currer, to trustees, to be by them conveyed to other trustees, to the use of Henry Richardson for life; remainder to his first and other sons in tail-male; remainder to the plaintiff Roundel, and his heirs male, in tail-male; remainder to the daughter or daughters of Henry Richardson; remainder to his own right heirs. The devise is upon express condition, that Henry Richardson should, within six months, suffer a recovery, and bar the remainders in Sarah Currer's will, and convey all her estates to such persons, c., as were declared by his will as to his own estates, and no conveyance of his estates to be made before Henry Richardson had suffered the recovery; and, in default [68] of his suffering such recovery, to convey his estates to other trustees, to the use of the plaintiff Roundel for life, with remainders over and, in case Henry Richardson should comply with the terms of the will, then he was to have powers of jointuring and raising portions for daughters, if he should have no male-issue, provided there shall be contained in such conveyance a proviso to compel Henry Richardson, and the husbands of any women who should come into possession, to take the name and arms of Currer, and declaring this to be a condition precedent to the vesting of the estate.

By a codicil (not having disposed of his personal estate), he gave his personal estate to Henry Richardson, on condition of his performing the conditions in his will; and, if he should refuse so to do, then he gave it to trustees to lay out in lands, to the uses declared in his will as to his own estates.

After the death of John Richardson Currer, Henry Richardson proved the will, entered, and took the name of Currer, and did various acts, which, in case of a freehold estate, would amount to an election, and made preparations for suffering the recovery,

but died before the recovery was completed, without issue-male; but left his wife enseint of a child, which proved a female.

Henry Richardson Currer was heir at law to Sarah Currer, John Richardson Currer, and Dorothy Currer, consequently his daughter was so. If Henry Richardson had performed the conditions of John Richardson Currer's will, the plaintiff Roundel was entitled for life to the possession of both his and Sarah Currer's estate; if not, upon his death, the estate-tail was spent, and the reversion to the right heir of Dorothy Currer, was fallen in and went to the infant daughter.

The bill was filed by Roundel, insisting that the acts done by Henry Richardson Currer were a sufficient election to take under the will of John Richardson Currer ; and therefore praying a conveyance of both the estates under that will.

Mr. Scott for the plaintiff, stated the case at large, and was supported by Mr. Graham and Mr. Lloyd to the following effect:

[69] Two questions arise in the cause, 1. What was the intention of John Richardson Currer, with respect to the estate which came from Sarah Currer.

2. Whether the acts done by Henry Richardson Currer are sufficient to bind his daughter.

It may be first necessary to consider the interest of Roundel in the purchased estates of John Richardson Currer. He is entitled to take the possession of the purchased estates, and also of the personal estate of John Richardson Currer (at all events), to be laid out in land. If there was not such a right as to entitle us to the real estate, yet we should be entitled to the personal estate. It was not necessary Henry Richardson Currer should do the acts to entitle us to the personal estate.

At the time of making John Richardson Currer's will, he was tenant for life, and Henry was tenant in tail. The testator's wish was, that the estates should go together, and be united. For this purpose, he has required that a recovery should be suffered. It is mentioned as the means, but is only subservient to the principal intention, that the estates should be united. If therefore he complied as far as he could during his life, and did acts which would amount to an election in the case of an estate in fee, the reversion in fee would be bound, Douglas, 65, Statham v. Bell. Even take it strictly as a condition at law, if prevented by death, it will be held to be performed, Touchstone, 144. Much more in this case where it is only a conditional limitation, Pulteney v. Lord Darlington. The court will not call for a strict execution, if the condition is complied with as nearly as possible. In Pulteney and Lord Darlington, Lord Chief Justice De Grey cited the case of the Duke of Somerset and Lord Grey, that the party accepting should be held to have made his election. In the present case, Henry Richardson Currer had no interest in the estate, but under the will. His taking possession, and doing acts of ownership, was an election. He has proceeded as far as possible to complete the act he has made a conveyance to a trustee to make a tenant to the præcipe, which, though it would not have bound his issue-male, they might have adopted it, and it was their interest so to do, and which, if he died [70] without issue-male, bound the estate. The testator could not mean unnecessary acts to be done; having done sufficient to make an election, the plaintiff is entitled to a lifeestate in both.

But if the acts are not sufficient to entitle as to Sarah Currer's estate, we are certainly entitled to that of John Richardson Currer. Considering the general intention of his will, there can be no doubt upon this point: it must be good as a conditional limitation, Avelyn v. Ward, 1 Vesey, 420. Henry Currer could not mean to refuse, merely that his heir at law should defeat the devise. By the same construction of the will, we are entitled to the personal estate.

Mr. Solicitor-General, Mr. Mansfield, and Mr. Mitford, for the defendant, the infant daughter of Henry Richardson Currer. The testator requires a certain act to be done, within a certain time, and, if not done, he makes a particular disposition of the estate. It is not necessary to deny, that if the devisee has done acts equivalent with that required, that will be a compliance with the requisition of the will; but the question is, whether the act is equivalent. The testator pointed out a specific act; if the devisee had levied a fine, it might have been doubtful whether that was equivalent. The first question is, what was the intention of John Currer; it was clearly, that the estates should go together but the question would have gone further, whether the heir in tail had concurred, was he precluded by the election he had made, from making any further election? These cases, where the election is to be within a limited time, are to be con

sidered differently from those where no time is given: where it is to be done within. six months, you must find the act literally done; unless the acts amount to a virtual execution of those required, it is not sufficient. As to his taking the personal estate into his hands, he had a right so to do as executor, and so he had to receive the rents as heir at law, till the expiration of the six months; of course they were both equivocal

acts.

Master of the Rolls. May there not be a distinction, where the condition is to entitle the party to take, or where it is to defeat him?

[71] Solicitor-General. The distinction has gone through all the cases; and, in all the old cases, if the act was not done particularly, the estate could not vest; but lately, it has been extended to acts equivalent, yet not to cases where the particular act is to be done in a limited time. The acts done here are equivocal acts. If the devisee's mind is not made up to accept the estate, the acts are not binding; he may elect otherwise within the time prescribed, the acts are all equivocal, and such as might be prudent either way; and the conveyance which he did execute was to such uses as he should declare, not to the uses of the will. If we are to enter into presumptive evidence of the state of his mind, it seems singular, if he meant to accept, that he did not do the very act required, by which he could have given his daughter £5000, and could have made an addition to his wife's jointure. It is impossible he could mean to bind his daughter, and yet that he should not give her what he could. The cases cited, of the Duke of Somerset and others, are all cases where there was no time limited for the performance of the act; they are all general cases of election. In the case of Call v. Shewel in 1773, the question was, whether the party had neglected or refused; and it was held that the literal terms must be complied with, and the party must live to the time. Elections may, frequently, be more fully made, and not be sufficient. It appears from Pusey and Desbouvrie, 3 Wms. 315, that a declaration by parole, that he had elected, would not do. So, in Boynton v. Boynton (ante, vol. i, 445), an election by answer would not bind; so, Bustard v. Kenyon, Nov. 30, 1753.

Mr. Scott in reply. The argument of the defendant is inconsistent; they have done nothing more than taken disputable cases as clear ones. They have rested upon there being a specified time to perform the acts. I contended, that Henry Richardson Currer had made an election to take the property of John Richardson Currer. Where there is no appointed time within which the election is to be, the party who claims, subject to the election, may file his bill, and compel an election; and here, within the six months, he might have been compelled, and could not afterwards have varied his election. If Henry Richardson Currer had come here for a conveyance, he must have offered to settle the estates according to the will; he must have pledged [72] himself to do all necessary acts for making that settlement. Mr. Solicitor says the cases of election do not apply, and that the acts are insufficient. If, in fact, the acts amount to an election, they will be sufficient to give this estate to the plaintiff Roundel; but the acts are such that they are a sufficient election, to amount to an acquisition to the family of Henry Richardson Currer of the estates of John Richardson Currer; and therefore the family of Henry Richardson Currer must pay the price for those estates. If Henry Richardson Currer has done what is equivalent to that required by John Richardson Currer, there, according to the true intent of John Richardson Currer, he has made an election. It is said, that if Henry Richardson Currer had left a son, he would not have been bound; he might, as tenant in tail, but not as heir at law. Miss Currer is mere heir, not tenant in tail. In Starkey v. Starkey, where the party had made an election, and then wished to resort to his estate-tail, the court made a recompence out of the personal estate. Here it is no answer for Miss Currer that the son would not be bound. Put the case, that Henry Richardson Currer had died at the end of a month, the terms in that case could not have been complied with, yet the estate would have been bound. Mr. Solicitor did not contend but that a fine would have been sufficient; then it is not necessary to do the specific act. If Henry Richardson Currer had suffered a recovery, that would have done: then, if the same effect is produced, as if he had suffered a recovery, it is immaterial by what means it is done. The only difference between this and the common cases is, that here is a limited time, in which the other party must come to compel the election. Pulteney v. Lord Darlington has nothing to do with this case; the court thought there that she had not done sufficient acts to bind herself. As to the Duke of Montague and Lord Beaulieu, 6 Bro. Parl. Cases, 232) [3 Bro. P. C. 277, 8vo edit.], an answer has been given to that case; that 0. IX.-2*

wherever it shall occur again in specie, it must prevail; but if there is a jota of difference, it shall not. No argument will arise from Henry Richardson Currer not exercising the powers; for he had the same under Sarah Currer's will, and did not execute them. Douglas, 65, is in form a condition precedent, but was held a conditional limitation.

Master of the Rolls [Kenyon]. This is a case of some difficulty, and I might very well reserve the consideration of it: but I think I [73] shall serve the interests of the parties better, by giving an immediate opinion. It arises upon the will of John Richardson Currer, made with reference to that of Sarah Currer (both which his Honor stated). The bill is brought by William Roundel, praying that the will may be carried into execution, and that Henry Richardson Currer may be declared to have elected to take under the will. The important question is, whether the reversion in fee, descended, is liable to be conveyed to William Roundel under the will. Great stress has been laid on the point of election, whether the acts of Henry are sufficient to constitute an election, and whether the daughter is bound to convey: and, if I thought the question was to be decided by the point of election, I would send it to a jury; but I do not think it accurately stated when it is called a case of election. The material question is, whether Henry Richardson Currer has done all the acts he must do, in order to entitle himself to John Richardson Currer's estate. The plan was, that before he should have entitled himself to it, no conveyance should be made. The means by which it was to be effected, was, that he should suffer a recovery; and I will not say that any other conveyance would answer the intent. The testator has directed the means, and none so proper to perform the intent. In certain possible events, a fine would not have done; the estate might have been liable to specific incumbrances, which a fine would have let in: but it is not necessary to decide that. In fact, no recovery was suffered. The apology is, that there was scarcely an opportunity, and that there was no neglect and it is argued, that if it was prevented by the act of God, it should be held as done; but there are many cases where the act is rendered impossible to be done, and yet the estate shall not vest. As an estate given to A. on condition that he shall infeoff B. of Whiteacre, B. refuses to accept, the estate will not vest in A. Here, the estate was to be conveyed upon a certain act to be done, which amounted to a price: he was to take care, that, at all events, the estate of Sarah Currer should be so conveyed as to go to the uses of John Currer's will. It is said, nothing is left undone but the execution of the deed: but this I may venture to deny. [74] It is said, what he has done would have amounted to a conveyance: if he had been seised of a fee-simple, it might so; but he had only an estate-tail, with a fee-expectant, and could only bar by recovery. It is said, the estatetail being spent, is now out of the case; and that therefore it is now the same thing. I think this is not so; Henry Richardson Currer should have taken care, that, at all events, the estate of Sarah Currer should be settled to the uses of John Richardson Currer's will. He had only a reversion; he had never such an interest as he could bind by an equitable disposition. I will not say whether it was absolutely necessary that a recovery should be suffered; but he ought, in his life-time, to have obtained such an estate as he could convey; therefore the daughter is not bound to convey Sarah Currer's

estates.

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As to the other two points; the estates John Richardson Currer could dispose of will go to Roundel; and the same arguments apply to the personal estate it must therefore be laid out in land to the same uses. (Reg. Lib. 1785, B. fol. 593 b.)

[75] TRINITY TERM, 26 GEO. 3, 1786.

BENYON against MADDISON. [1786.]

Master of the Rolls for Lord Chancellor.-Bequest of all of testator's estate to A., to pay the income to testator's mother for life, and after her decease, I then give to A., &c., the residue to B., with power to dispose of it by will: the legacy to A. vested immediately, and was transmissible.(1)

Lynde made his will, and, subject to his debts, was a clause by which he gave the whole of his estate to John Maddison, the defendant, "in order to pay the income to

my mother Hester Lynde for life, my intent being that she should enjoy the same "during her life: but, after the death of Mrs. Hester Lynde, I then give (1) to (five persons) the sum of £500 each, 3 per cent. annuities, and to J. Benyon, and Mary his "sister, the sum of £100 each, 3 per cent. annuities. All the rest and residue I give to my executor; and I hereby empower him to dispose of by will the residuum he will be intitled to after the decease of my mother."

The mother is now dead; J. Benyon died in her life-time, and the plaintiff is his representative, and filed the present bill for the legacy of £100, 3 per cent. given to him by testator's will.

Mr. Scott (for the plaintiff). The only question is, whether the legacies vested. This is a distribution of the fund after the death of the mother. The testator did not mean to postpone the vesting of the legacies, but only the payment of them. This appears from the case of Dawson v. Killet (ante, vol. i. p. 119), and the cases there cited, and from Barnes v. Allen, ibid. 181, where the word then was used: but that word was not used by the testator here, as meaning to say, I do not mean to give until then. In Monkhouse v. Holme, ibid. 298, the words [76] were, and from and after her (the wife's) decease; yet the legacy was held to be vested. It is impossible to distinguish this case from Monkhouse v. Holme. That case takes notice of Norris v. Huthwaite, where the Court relied upon the word then, and in Smith v. Salmon, there cited, in which the words were, from and after her decease, and the Court held it lapsed: but Monkhouse v. Holme was determined against both those cases.

Then as to the residuary clause, it is not sufficient to overturn the legal effect of the legacies in the will.

Mr. Mansfield and Mr. Mitford (for the defendant). The single question is, whether the legacies to persons, since deceased, vested or not. The distinction has turned, in several of the cases, upon very trifling differences in terms. In this will, if in any, the legacies must be future. After the death of my mother I then give. This is future as strongly as can possibly be. Then the residuary clause, giving the executor power to dispose of his residue by will, shews his meaning to be to give him a power he would not otherwise have had; and applying the same idea to the legatees, he certainly did not mean to give them that power. He, like other testators, did not know the meaning of the word vesting. Testators, in general, think the gift will not take place, but at the time of payment; and, if the persons are not alive at that time, the legacy will not be payable. Suppose the interest here had not been given, and the legacy had been "at the death of my mother I give." The legacies, of persons dying in her life-time, would have been lapsed. A distinction has been made between a gift of the whole fund, and dividing the fund: this not being a gift of the whole fund, amounts to a gift at the death of the mother. What is mentioned as to the residuary legatee, that, if he died before the mother, the testator conferred upon him the power of disposing of his residue, no such power being given to the legatees, their legacies must lapse. Norris v. Huthwaite is almost on all fours with this, but not quite so strong. The words there were, I then give. Here it is, after the decease of my mother, I then give. In Monkhouse v. Holme the words were very loose. In Barnes v. Allen there was a direct gift. In Dawson v. Killet the words were, if there should be no issue between them, then the premises [77] were given to the defendant, subject to the charges to be paid six months after the decease of the wife. These are very different from the present; and there was a clear vested interest in the real estate; so that the gift was absolute, and only the payment postponed. None of the cases are very near this, but Norris v. Huthwaite; Smith and Salmon has not the word then; yet the Court held it lapsed. This construction is supported by the two cases, and by the strong marked intention of the testator. The gift is attached to the payment, which brings it within the rule of the civil law. The words are perfectly future, and the case falls within the reasoning of Lord Hardwicke, in giving judgment in Billingsley v. Wills, 3 Atk. 219.

Master of the Rolls [Kenyon]. The cases have proceeded upon very nice distinctions. Nothing can be more truly called vexata quæstio, as appears from the rules laid down in Hall v. Terry, 1 Atk. 502, and Lowther v. Condon, 2 Atk. 127, 130. If this were a devise of real property, there is no doubt but it would be a vested remainder; and it seems reproachful to the law, that the construction should be different when applied to different species of estates: but it is said that there is a rule of the civil law affecting this subject; and undoubtedly the decisions of that court ought to have weight in this court. That rule appears from Swinburne to be, that where it is clear that the