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On Wednesday, the 5th day of May, 1802, being the
first sitting day of Easter Term, the Right Honourable Lord Redesdale sat for the first time as Lord CHANCELLOR..
ELLIS v. ELLIS.
May 10. DWARD ELLIS having two sons, Thomas and Ed E. E. being
on bad terms ward (the defendant) and having been displeased with his with his eldest eldest son Thomas, and not having had any intercourse with son, bequeaths
him a trifling him for many years, by his will, dated the 22d of January, annuity, and
bis bequeaths to 1773, bequeathed an annuity of 10l. to Thomas during his life, (which, with 20l. per annum, appeared to be all he had ter of his said
son“ if unto live upon) and then after reciting that the said Thomas married and had one daughter, namely Maria Ellis (the plaintiff) he be- if she does
“ not marry queathed as follows:
“ without the o consent of
" his trustees, " the sum of 4001. ; one moiety to be paid her upon her marriage with such consent, “ the other moiety in one year after : but if said M. was then married, or should marry “ without consent, said sum to sink into his personal fortune.” M. being unmarried, is not entitled immediately either to principal or interest : not to principal, because marriage is a condition precedent, and the legacy therefore contingent until then : nor 10 interest, because the legacy is payable in futuro and no sufficient ground of implication that interest was intended in the mean tiine. E. E. does not appear to have put himself towards M. in loco parentis.
. “ Now, if said Maria be unmarried, and does not marry “ without the consent of my trustees or the survivor of “ them, I devise and bequeath unto my said grand-daughter “ Maria Ellis, the sum of 400l. one moiety whereof to be “paid her upon her marriage, if such marriage should be " with the consent of my said trustees or the survivor of “ them, and the other moiety in one year after such marriage ; “ but if said Maria be now married, or marries without “ such consent, the said sum of 400l. is to sink in the per“sonal fortune.”
The testator then devised his real estates and chattel interests (which were considerable) with the residue of his personal fortune to trustees, upon trust to pay over the rents, issues and profits, and the interests thereof to the defendant, for and during his life, with other limitations over; and he died in the year 1773, the plaintiff being then about fourteen years of age, and unmarried.
The plaintiff having been left unprovided for by her father, and dependent on her mother, who was herself in narrow circumstances, in May 1794 filed her bill against her uncle Edward and the trustees of her grand-father's will, paying an account of what was due to her for principal and interest on the foot of said legacy, and that the same should be paid to her; or, if the court should be of opinion that she was not entitled to have the principal paid, that she should be paid the interest due, and that the principal should be laid out upon security, and the interest paid to her from time to time.
This cause was first heard, on the 24th and 25th of February 1801, before Sir MICHAEL Smith, Cust. Sig. (in the absence of Lord CLARE) and stood over until this day, when it was argued by Mr. O'Grady and Mr. W. Johnston
for the plaintiff, and Mr. Burston and Mr. Mayne for the defendants.
For the plaintiff it was argued that this case ought to be considered as falling within the rule, which gives interest upon a legacy given by a parent to a child ; the grandfather must be taken to have put himself in loco parentis; he must have been aware of the inability of the son to provide for his daughter, having left him only a small annuity, and by his bequest of 4001. to the daughter, he has shewn a disposition to provide for her himself. If so, this case is within the rule in Crickett v. Dolby, 3 Ves. Fun. 13, and Mitchell v. Bower, ibid. 287. If so, then whether this legacy be payable before marriage or not, tiis court will give interest by way of maintenance, the child having no other provision. Heath v. Perry, 3 Atk. 101. But the condition expressed in the will, “ if said “ Maria be unmarried, and does not marry without con“sent,” &c. must be construed to be a condition subsequent, otherwise the same inconvenience would occur as in Peyton v. Bury, 2 P. Wms. 626, where a residue was bequeathed to Fane Styles provided she married with consent of A. and B. and if she should marry otherwise, then the residuum was devised over ; and, by the Master of the Rolls, “ In the nature of the thing, and according to the intention of the testator, this could not be a condition precedent; for at that rate, the right to the residuum might not have vested in any person whatever for twenty or thirty years after the testator's death.” Then according to the cases of Nicholls v. Osborne, 2 P. Wms. 419; Taylor v. Johnson, 2 P. Wms. 504 ; Tissen v. Tissen, 1 P. Wms. 500 ; Chaworth v. Hooper, 1 Bro. Ch. C. 82 ; and Hawkins v. Combe, ibid. 135, the plaintiff ought to have the interest paid her until the principal becomes payable. In this case, from the words, “ if said Maria be now married, or marries without
“such consent the said sum of 400l. is to sink in the personal “ fortune," it is to be inferred that the testator meant to sever this sum from the heap and bulk of his estate, and that it never was to become part of the residuum but upon an event which never has happened; this brings it within the case of Acherley v. Vernon, 1 P. Wms. 783, where (as Lord HARDWICKE observes, 1 Atk. 103) “ the governing circum“ stance was, that the testator had directed the residue " to be laid out in land after the debts and legacies paid, and “ Lord MACCLESFIELD was of opinion that until the debts " and legacies were paid, nothing was to be laid out in “ land.” At all events, the plaintiff is entitled to an appropriation for securing the legacy. Green v. Pigott, 1 Bro. Ch. C. 104.
For the defendants, it was insisted, 1st. That there was no intention appearing to have been expressed by the testator to give interest by way of maintenance, and that such intention must be expressed, or to be collected by strong implication, in order to entitle the legatee to interest, in all cases except where the legacy is given by a parent to a child. Crickett v. Dolby, 3 Ves. Jun. 13 ; Tyrrell v. Tyrrell, 4 Ves. Jun. 1. And this case is not like that of a legacy from a parent to a child, for a grand-father is not under a moral obligation to support his grand-child, 2 Atk. 429, nor is there any authority by which that obligation is imposed on the grand-father, if he should think proper, as in the present case, to make a slender provision for the father of the child. 2dly. The condition of marriage with consent, &c. is a condition precedent, and the condition not having been as yet performed, the legacy has not vested; Elton v. Elton, 1 Wils. 159, (3 Atk. 504, and 1 Ves. 4, S. C.) and Atkins v. Hiccocks, 1 Atk. 500. She cannot therefore be as yet entitled to the interest. Shaw v. Cunliffe, 4 Bro. Ch. C. 144.
The Lord CHANCELLOR,(after stating the facts of the 1802. case, and observing that Acherley v. Vernon was a singular ELLIS case, and that Lord HARDWICKE was dissatisfied with it) The rules of law on this subject are now laid down with great precision, and it is better for the public that courts should adhere to general established rules, than that those Acherley v. rules should yield to circumstances of compassion in parti- doubted. cular cases, however strong. The general principle is, that a legacy payable at a future day does not carry interest unless it be from a father to a child who has no other provision, or unless there be something on the face of the instrument, from whence it can be inferred that the testator considered interest as incident to the legacy. In the case of a father and a child having no other provision, it is considered as a necessary implication that the legacy shall bear interest, because, he being bound to provide maintenance for his child, and having made a provision by a legacy payable at a future day, must be presumed to intend that the child should be supported in the mean time; but this implication is ousted, if he provides any maintenance for the child, however small the maintenance, and however large the legacy.
This seems to distinguish the case of parent and child from every other except where the testator has put himself in the place of a father. Whether Mr. Vernon appeared to have done so in that case of Acherley v. Vernon, I shall not discuss now: Lord MACCLESFIELD assumed it as one ground of his decision, and therefore I will take it that the circumstances of that case, whatever they were, did put him into that situation. I remember a case before Lord BATHURST, where a grand-father having taken the children of a son who had ruined himself, educated them entirely, and by his will gave the son a provision by way of annuity provided he did not interfere with the children, and then gave legacies to the children. Lord BATHURST thought this