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1802.

for the plaintiff, and Mr. Burston and Mr. Mayne for the defendants.

ELLIS

ELLIS,

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, this 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 June 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

1802.

ELLIS

V. ELLIS.

« such consent the said sum of 4001. 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.

1802.

V.

The Lord CHANCELLOR—(after stating the facts of the case, and observing that Acherley v. Vernon was a singular ELLIS case, and that Lord HARDWICKE was dissatisfied with it

ELLIS. 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.

Vernon, 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

1802.

ELLIS

V. ELLIS.

sufficient to raise the implication, and interest was decreed. So, in a case which I recollect, before Lord Rosslyn, where a testator gave legacies to the natural children of his son payable at a future day, he gave no maintenance in the mean time, but by his will directed that his trustees should be guardians to the children (which he had no power to do) and gave directions how they should be educated : The children had no other provision, and it was considered as a necessary implication from the whole will, that he intended to give interest.

Now, does this case amount to any of these? The testator makes a small provision for his eldest son, and then proceeds to make the bequest in question. During the life-time of the father a provision was made, however small, on which the father might maintain himself and his child; and the testator probably thought that the daughter would be married before the death of her father. And on the whole of the will, it must be understood that the testator meant not to give any legacy to his grand-daughter unless she were married. Under these circumstances I think this legacy cannot bear interest. If married the grand-daughter will be entitled to 400l. ; if she shall die unmarried, that sum will sink into the residue. Taking the whole together, marriage must be considered as a condition precedent ; so that the legacy is wholly contingent.(a)

(a) In Crickett v. Dolby, 3 V 08. Jun. 16, the Master of the Rolls intimates an opinion very strongly that “ a wife would come within " the same exception as a child and be entitled to interest on a “ legacy payable at a future day.” He is also reported to have said during the argument of that case, that “ If a father by will “ gives his natural child a portion payable at 21, the court will not

say it was intended to starve in the mean time, but will allow “ maintenance.” However, in Perry v. Whitehead, 6 Ves. Jun. 547, Lord ELDON seems to intimate a doubt in that case, except there be something more than simply the legacy to shew that the testator put himself in loco parentis ; and in De Mazar v. Pybus, 4 Ves. Jun. 647, which was the case of natural children, though the point of interest was given up, it was waved expressly on the ground that there was sufficient from whence to infer that the testator placed himself in loco parentis. In this last case the testator appointed guardians by his will to the natural children, and gave other marks of parental anxiety about them.

1802.

ELLIS

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Reg. Lib. xlviii. 105. « Let defendant Edward Ellis

on or before the last day of term, invest in govern“ ment securites with the approbation of the master, the

of 4001. being the amount of the legacy given to plaintiff and in the pleadings particularly mentioned, “ and thereupon let such securities be deposited in the “ Bank of Ireland to the credit of this cause, with the

privity of the Accountant-General, and decree the " defendant E. Ellis entitled to such interest as shall from « time to time become payable on said securities until the “ contingency shall happen on which the plaintiff may be

come entitled thereto, and accordingly, let the Accountu ant-General draw on the bank in favour of said de“ fendant E. Ellis, for such interest half yearly, and “ upon the happening of such contingency as aforesaid, or “ upon the death of the plaintiff, let the parties be at “ liberty to apply to the court for a transfer of such secu“ rities; and decree the defendant E. Ellis and Singleton

Harpur entitled to retain their costs in this cause out “ of the trust fund in the pleadings mentioned."

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