be established, the plaintiff, who resided at Cadiz, was appointed,
by that Court, the judicial administrator of the goods, chattels
and credits belonging to the deceased's testamentary estate.
Afterwards, the plaintiff, in pursuance of an authority given to him
by the Court at Cadiz, executed an instrument, under his hand
and seal, by which he appointed the defendant to be his attorney
for the purpose of recovering and receiving from Messrs. James
Campbell & Co. of London, merchants, a sum of 10,000l. or there-
abouts, belonging to the deceased's estate. Accordingly the defen-
dant, after some opposition on the part of Don Angel de Aramburn,
the deceased's nephew, obtained a decree of the Prerogative Court
of the Archbishop of Canterbury, under which limited letters of
administration to the deceased, were granted to him
"as the
lawful attorney of the said Don José de la Viesca, for the use
and benefit of the said Don José de la Viesca, and until he shall
duly apply for and obtain letters of administration of the goods of
the said deceased to be granted to him."

*

*

66

The defendant having, under the letters of administration, received 10,5681. from Campbell & Co., the bill was filed to compel him to pay over that sum to the *plaintiff. The question, at the hearing of the cause, was whether, having regard to the litigation in the Spanish Court (which was still pending), and also to the litigation which had taken place in the Prerogative Court, and, more especially to the fact that the letters of administration were granted, to the defendant, until the plaintiff should obtain letters of administration to the deceased, the defendant could safely pay the sum in question, to the plaintiff, until he had obtained such letters of administration.

Mr. Knight Bruce and Mr. Coleridge, for the plaintiff.

Mr. G. Richards and Mr. Hull, for the defendant.

The VICE-CHANCELLOR said that Sir John Lubbock was bound by the recitals of the letters of administration; and that they were granted to him expressly as the attorney of De la Viesca; and, therefore, he might safely pay over the sum which he had received, to De la Viesca.

Declare the plaintiff entitled to the fund in the pleadings mentioned; and order that the defendant do pay, to the plaintiff, so much of the sum of 10,5681. received, by him, under and by virtue

DE VIESCA

t.

LUBBOCK.

[ 632 ]

[ *633 ]

of the letters of administration in the bill mentioned, as shall remain after deducting therefrom, the sum of 4541. the amount of his costs incurred in the proceedings to obtain such administration and otherwise relating thereto, and the costs of this suit, to be taxed as between solicitor and client.

1840. May 1.

SHADWELL,
V.-C.

[ 636 ]

[ *637 ]

BENN v. DIXON (1).

(10 Simons, 636-639; S. C. 9 L. J. (N. S.) Ch. 259; 4 Jur. 575.) Will Construction -Executor Leaseholds - Perishable propertyConversion.

A testator gave to his wife, the whole of the interest arising from his property, both real and personal, during her life; and, in case he should die without issue, he gave, after the death of his wife, the whole of his property, both real and personal, to his brothers and sister. The testator died possessed of leasehold, and also of real property: Held, that the widow was not entitled to the leasehold property, in specie, during her life, but only to the dividends of stock to be purchased with the proceeds of the sale of it.

PETER DIXON, by his will dated in November, 1822, disposed of his real and personal estate in the following words:

"I give and bequeath, unto my dear wife Sarah Dixon, the whole of the interest arising from my property, both real and personal, during the period of her *natural life, and, at her decease, to be disposed of as hereinafter named. I give and bequeath also unto my dear wife Sarah Dixon, all my household furniture, linen, plate and books, to her for ever. At her decease, if I leave issue at my death, I give and bequeath the whole of my property to my child, if only one, or, in equal shares, if more than one, on attaining the age of 21 years: the same being held in trust, by C. W. Thompson and my dear wife Sarah Dixon, for the use and benefit of such child or children as I may have at the time of my decease: but, should I die without leaving issue, then I give and bequeath, after the death of my dear wife Sarah Dixon aforesaid, the whole of my property, both real and personal, in equal proportions, to my brothers, T. Dixon, O. Dixon, and J. Dixon, and my sister Jane Benn: but, should any of my brothers or sister die without leaving issue, I then give and bequeath such share to the survivor or survivors of them; but, leaving issue, I then give such share to their children, in equal proportions, on attaining the age of 21 years, to them and their heirs for ever."

(1) Ex relatione.

BENN

The testator appointed his wife his executrix, and died in January, 1835, without leaving issue. The will was proved by his widow : and the bill was filed, by his brothers and sister, for the administration of his personal estate, which consisted, in part, of a leasehold house at Kennington, in which the testator lived at his death, and in which his widow continued to reside afterwards. The testator also was seised of a small real estate in Cumberland.

The only question in the cause was whether the widow was entitled to the possession of the house during her life, or whether it ought to be sold, and the proceeds invested, and the interest of the same paid to her.

Mr. Knight Bruce and Mr. Stinton, for the widow, said that, as the testator, in disposing of his property, had united his personal with his real estate, it was his intention that they should be both enjoyed together, in their then existing state: and that, by the word "interest," the testator must have meant "income," as he had used that word with reference to his real as well as his personal estate. They cited Alcock v. Sloper (1); Collins v. Collins (2); and Pickering v. Pickering (3).

Mr. Jacob, Mr. Wigram, and Mr. Williams, for the other parties. THE VICE-CHANCELLOR :

This case must be governed by the general rule.

There is a total absence, in the will, of any thing like a declaration of intention that the property shall be enjoyed in the specific state in which it was at the time of the testator's death.

In the case of Pickering v. Pickering the testator gave to his wife, the interest, rents, dividends, annual produce, and profits, and use and enjoyment of all his estate and effects whatsoever.

In every will you must look at the words of the whole will. Now, in this case, the testator, after the death of his wife, gives the whole of his property to his brothers and sister. What property? "The whole of my property, both real and personal." There it is plain they were to take what his wife was to enjoy during her life. Is that consistent with the idea of her enjoying the property as it existed at the time of the testator's death? It is the duty of the executors to deal with the property in such a manner as that it may continue to produce the same interest after the death of the

(1) 39 R. R. 334 (2 My. & K. 699). (2) 39 R. R. 337 (2 My. & K. 703).

*

(3) 48 R. R. 104 (2 Beav. 31; 4 My. & Cr. 289).

v.

DIXON.

[ 638 ]

[ *639 ]

BENN v.

DIXON.

tenant for life. Suppose that the testator had given a flock of sheep could it be held that they were to be kept in the same state and not sold? They might all die, and then the subject of the gift could not possibly pass to the persons in remainder; for nothing would be left.

As the will stands, there is nothing, on the face of it, to prevent the application of the rule of law that perishable property must be sold and converted into money, and invested in the funds, in order to produce the same interest to the remainder-man as was enjoyed by the tenant for life.

1840. May 8.

SHADWELL,
V.-C.
[639]

[640]

VAUGHAN v. THE MARQUIS OF HEADFORT (1).

(10 Simons, 639–642; S. C. 9 L. J. (N. S.) Ch. 271; 4 Jur. 649.)

A testator bequeathed 40,000l. to Lord H. and his children, to be secured for their benefit: Held, that Lord H. took for life, with remainder to his children.

MARGARET VAUGHAN made her will dated the 7th of November, 1836, and containing the following bequests:

"I leave two houses in Foley Place and 2,000l. to the Honourable Lady Cockburn: 40,000l. in the Three per cent. Reduced Annuities to the Marquis of Headfort and his children, to be secured for their use."

The testatrix died eleven days after the date of her will. At her death Lord Headfort had six children, all of whom were still infants.

The questions raised, on behalf of the Marquis of Headfort and his children, were, first, whether the legacy to the Marquis and his children, was specific or general: 2nd, whether the Marquis and his children took the 40,000l. as joint-tenants, or whether the Marquis was entitled to it for his life, with remainder to his children.

Mr. Knight Bruce and Mr. Evans for the plaintiff, the residuary legatee, submitted whether the bequest was general or specific.

The VICE-CHANCELLOR was clearly of opinion that the legacy was general.

Mr. Jacob and Mr. Lovat, for Lord Headfort, relied on the (1) Combe v. Hughes (1872) L. R. 14 Eq. 415, 41 L. J. Ch. 693, 27 L. T. 366.

VAUGHAN

words, "to be secured," as showing that the children were not intended to have any portion of the fund transferred to them MARQUIS OF immediately, [and cited Crawford v. Trotter (1) and other cases].

Mr. Wakefield, Mr. Wigram and Mr. Ellison, for the children, said that the gift to the Marquis and his children, made them joint-tenants, and that the words "to be secured," &c. did not destroy the effect of the preceding gift, but meant that a security was to be found for the fund, that is, that it was to go into the hands of a trustee for the benefit of the legatees: Cooper v. Thornton (2).

THE VICE-CHANCELLOR:

This case shows, as I have often observed before, that no light is thrown on questions like the present by quoting other cases. By the laws of this country, every testator, in disposing of his property, is at liberty to adopt his own nonsense: and a decision on the expressions used by one testator, seldom affords any clue to the meaning of another.

On looking through the whole of the will, I do not see anything that throws any light on the question now before me; and, therefore, I must deal with the individual expression as well as I can.

If possible, every word in a will ought to have that meaning given to it, which, in common fairness of construction, it is capable of receiving. Now the words in this case are: "40,000l. in the Three per cent. Reduced Annuities, to the Marquis of Headfort and his children." If it stood there, the Marquis and his children would be joint-tenants; but then it goes on: "to be secured for their use." Now it would be absurd to hold that those words apply to the Marquis; as he might have taken his own share, and either secured it for himself, or spent it. Those words, therefore, plain meaning of them

do not comprehend the Marquis; but the
is that the fund is to be secured, for the children, from the
dominion of their father; and in my opinion, there is quite enough,
in this will, to justify the Court in holding that *the father is
to take for his life, and his children after his decease: and that
construction will let in any children of the Marquis that may be
born hereafter.

Mr. Wray, Mr. Keene and Mr. Humphry appeared for other parties interested in other questions that arose on the will.

(1) 20 R. R. 312 (4 Madd. 361).

(2) 3 Br. C. C. 96 & 186.

“.

HEADFORT.

[ *641 ] .

[ *642 ]