there must be clearly a liability to share also in the debts. If, then, the case depended upon the simple general rule independently of the clauses of the deed, my opinion would be that a person buying a share in the Company must also take a share in its debts and liabilities as he finds them.

[His Lordship then examined the clauses of the deed, and stated that in his opinion they favoured the conclusion already expressed by him, and he concluded his judgment by saying:] When, therefore, a purchaser executes the deed of transfer, he becomes bound as from the commencement of the partnership. If this Court was to hold contrary to what has been held in the Court below, a blow would be given to transactions of this nature, for it would be impossible any longer to deal with shares in Joint Stock Companies, in the manner in which they are now dealt with.

I say nothing about the authorities which have been referred to, as I am of opir ion they do not touch the present case. Croxton's case (1) depended upon the particular clauses of the deed, and I thought it so free from doubt, that I did not call on the counsel for the respondents. The present case is also, I think, not open to any doubt, and I have given my opinion upon it with the concurrence of the LORDS JUSTICES, who agree with me that the appeal must be dismissed, and with costs. I have not said anything about the form of the transfer, but it appears to me to be in favour of the view which the COURT has taken.

KERR v. THE MIDDLESEX HOSPITAL.

(2 D. M. & G. 576-591; S. C. 22 L. J. Ch. 355; 17 Jur. 49; 1 W. R. 93; 20

L. T. O. S. 160.)

A testator by his will gave certain annuities in the following terms: "I desire that my executors shall purchase annuities for each of my two sisters, E. B. and E. F., of 1007. a year each, the said annuities to be purchased in the British funds." After giving other annuities simpliciter and legacies, the testator added, "I direct my landed property at O. to be sold, and the produce to go to the carrying out of the aforesaid annuities and legacies; and should the produce of the said sale not be found sufficient for that purpose, I desire that the remainder shall be made up from my personal property;" and he directed the remainder of his personal property **after the above annuities and all legacies have been paid and effected," to be laid out "in the purchase of an annual income in the 37. per cent. Consols," for the benefit of a hospital: Held, dissentiente Lord Justice Lord CRANWORTH, that the annuities to E. B. and E. F. were perpetual annuities. THIS was an appeal by Eliza Byrne, one of the defendants and annuitants under the will of Sir J. De Courcy Laffan, from the (1) 91 R. R. 193 (1 D. M. & G. 600).

CAPE'S EXECUTOR'S CASE.

[575]

1852. Dec. 18.

Lord ST.
LEONARDS,
L.C.

KNIGHT
BRUCE,
Lord

CRANWORTH,

L.JJ.

[576]

KERR

ፖ. THE

decree of the MASTER OF THE ROLLS, on the 12th June, 1852, whereby it was declared that, according to the true construction of MIDDLESEX that will, the annuity thereby bequeathed to the appellant was determinable upon her death. The following are the testamentary instruments under which the question arose.

HOSPITAL.

[*577]

"In the name of God, Amen. I, Joseph De Courcy Laffan, Baronet, of Otham in Kent, England, do make this my last will and testament, revoking and annulling all former testamentary papers. I leave all my property, of whatever kind it may be, in England or elsewhere of which I shall die possessed, to Thomas Knox, Earl of Ranfurly, in Ireland, and Charles Kerr, Esq., of the house of Fletcher, Alexander & Co., of King's Arms Yard, London, and Henry Houndle, Esq., of the Adjutant-General's Office, Horse Guards, London, to have and to hold the same in trust for the following purposes. I leave to my well-beloved daughter-in-law, Frances Logier (daughter of my late wife and Colonel Michael Symes), and now married to the Rev. Mr. Logier, of Lausanne in Switzerland, the sum of 3,000l. sterling to hold the same independent of her husband, and to be disposed of by her will, properly signed and executed. I leave to her sister, Jane Symes, and the Rev. Mr. Logier, husband of the aforesaid Frances Logier, the sum of 1,000l. each. I desire that my executors shall purchase annuities for each of my two sisters, viz. Mrs. Eliza Byrne, of Thurles, Ireland, and Mrs. Ellen Fitzpatrick, of Killenall, Ireland, of 100l. a year each, the said annuities to be purchased in the British funds. I leave 50l. a year to my niece, Mrs. Catherine Quinlan, now living at Lough near Thurles, Ireland, to hold the same independent of her husband. I leave 251. a year to each of my nieces, Ellen and Susan Laffan, and also 251. a year to Joseph Laffan, children of my late brother, John Laffan. I leave to Charlotte Cadogan, Marchioness of Anglesea, 1,000l. I leave to Isabella Sheldon, of Brailshawe, England, 100l. as a mark of my affectionate esteem. I leave to Dr. Verity, physician to the British Embassy, 100l. as a mark of my friendship. I direct my landed property at Otham to be sold by auction, and the produce to go to the carrying out of the aforesaid annuities and legacies; and should the produce of the said sale not be found sufficient for that purpose, I desire that the remainder shall be made up from my personal property. I direct all my personal property in the funds of the East India Company, the Bank of England, the Dutch funds, the Neapolitan funds, the French funds, the French

KERR

THE

HOSPITAL.

Lyons Railway shares, the Water Company of New York, the Erie Canal Company of America, to be sold. After the above annuities and all legacies have been paid and effected, I desire the remainder MIDDLESEX of my personal property shall be laid out in the purchase of an annual income in the 31. per cent. Consols for the benefit of a Cancer Ward in the Middlesex Hospital of London. I leave and bequeath 3007. to each of my executors, and I constitute and *appoint the above said Earl of Ranfurly, Charles Kerr, and Henry Houndle, to be my executors and trustees."

"The first codicil to my will, made and signed at Vichy in France, and which is now in the hands of Messrs. Wise Wiler, of Madrid. I leave and bequeath to my nephew, Captain R. Laffan, of the Royal Engineers, all my interest and property in the East India funds or stocks. I also leave to the same Captain R. Laffan aforesaid my estate and landed property in Otham, Kent. I leave and bequeath 50l. a year to Mrs. Catherine Quinlan, my niece. I leave and bequeath to Joseph Laffan, my nephew, 50l. a year over and above what I left him in my will.”

Mr. Elmsley and Mr. F. Riddle, for the appellant:

The gift of the annuity being accompanied with a dedication of the estate which was to produce it (in the present case the landed property at Otham having been directed to be sold), the annuity is thus rendered perpetual: Stokes v. Heron (1).

Mr. Roupell and Mr. Cairns, contrà :

In the case of Wilson v. Maddison (2), the annuity was from the interest of the testator's funded property in the Bank of England, and it was held only to be a charge on that property for the life of the legatee. So in Innes v. Mitchell (3), the annuity was "to be paid out of my general effects," and was restricted to a life annuity.

Mr. Lloyd and Mr. Busk, for the trustees.

Mr. Elmsley, in reply.

THE LORD JUSTICE LORD CRANWORTH:

In this case I do not concur with the LORD CHANCELLOR and

(1) 59 R. R. at p. 662 (12 Cl. & Fin. 161).

(2) 60 R. R. 198 (2 Y. & C. C. C.

372).

(3) 5 R. R. 360 (6 Ves. 464).

[578]

[579]

[ 580 ]

a

KERR

v.

THE MIDDLESEX HOSPITAL.

[ *581]

Lord Justice KNIGHT BRUCE, and it is arranged between us that I, as the junior Judge, should state my reasons first.

The question is, whether or not a certain annuity given by the will of this testator is given to the annuitant for life, or whether she is entitled absolutely to the fund which produces the annuity. The MASTER OF THE ROLLS has decided that she is entitled to a life annuity only. The appellant contends that it is a gift of the corpus of the fund in perpetuity. How would the case have stood if there had been no direction to purchase in the British funds, as if the testator had said, "I desire that an annuity should be purchased of 100l."? I should have thought that in such a case the annuity would be for the life of the annuitant only. This I thought was settled by Lord COTTENHAM in the case of Blewitt v. Roberts (1). The general rule there laid down is, that the gift of an annuity simpliciter is for life only. That being so, is the case altered by what follows, "the said annuity to be purchased in the British funds"? That direction does not appear to me to alter the case. It appears to me that the direction might be satisfied by the purchase of a Government annuity, which is authorized by the Act of Parliament. It is true that the Act regulating the purchase of life annuities does not charge them upon any of the funds, ordinarily so called, but charges them upon the Consolidated Fund of the country. But I think that in construing a will like this, we must understand the testator to have used the expression, "British funds," in the popular sense of "British securities," and to have meant that the legatee should have her annuity of 100l. secured to her by the British Government, as contradistinguished from any of the other funds in which, it seems, he had propertysuch as the Dutch or Neapolitan funds. Still, although this is the interpretation which I should have put upon this will, independently of authority, I should at once have yielded that opinion, if I had thought that it was adverse to decided cases, and more particularly if it was adverse to the case which has been so much. commented upon, and which was heard by the present LORD CHANCELLOR when he held the office of Lord Chancellor of Ireland, and was afterwards, for all material purposes, at least as far as the present question is concerned, confirmed by the judgment of the House of Lords. I do not, however, consider that authority as one governing the present case. In Stokes v. Heron (2), the

(1) 54 R. R. 291 (Cr. & Ph. 274).

(2) 59 R. R. at p. 662 (12 Cl. & Fin. 161).

KERR

THE

HOSPITAL.

authority to which I am referring, the language of the will appears to me to have been materially different from that of the will now before us. The bequest was thus expressed: "My will is, that MIDDLESEX whatever I die possessed of or in any way entitled to, together with whatever property my wife may be in any way entitled to, shall produce to my wife an annuity of 100l. per annum, to each of my daughters 100l. per annum, for themselves and their children."

Now with reference to the annuity of the wife, what my LORD CHANCELLOR OF IRELAND decided, and the House of Lords held that he rightly decided, was this, that the legacy given to the wife was such an amount of property as produced 100l. a year. That decision, I conceive, depends upon the particular language which I have read. I do not say whether I should have put the same construction upon that language, independently of that authority. I rather think that I should. But it is unnecessary for me to say anything on that point, for I yield to that authority, even if the construction was not that which I should have adopted. But the direction in the present case is to purchase an annuity, which would be only a gift of an annuity, according to the case before Lord HARDWICKE, of Savery v. Dyer (1).

The view which I have taken of the case is somewhat confirmed, to my mind, by the residuary gift. The residuary gift is to the Middlesex Hospital, and is thus expressed: "I desire the remainder of my personal property shall be laid out in the purchase of an annual income in the 37. per cent. Consols," not saying there "in the British funds," but pointing to a perpetual fund. It seems to me that this circumstance, which of itself would have been of very little weight, somewhat tends to confirm the view that I have taken.

THE LORD JUSTICE KNIGHT BRUCE:

I am not sure that I differ from the MASTER OF THE ROLLS OF from Lord CRANWORTH in the view which either of those learned Judges has taken of this cause, excepting in a single point, namely, the applicability to it of the case of Heron v. Stokes as an authority, and I particularly wish to guard myself from being understood as intimating how I should have been disposed to deal with *the present cause if that of Heron v. Stokes had not existed. Heron v. Stokes, so far as material in this instance, had the concurrence of (1) Amb. 139.

[582]

[ *583 ]