EDGSON V. EDGSON. of MR. BAGGALLAY moved for leave to make entry The VICE-CHANCELLOR: You may take the risk of the service, if you think fit; but it seems to me questionable whether the proof is sufficient. Does not the rule as to service upon some meinber of the family refer to domicil, and not to relationship? 1849. Nov. 3rd. Semble, that service of a copy defendant's house, upon a member of his family, is not sufficient, unless the member of the family is an inmate of the house. of a bill, at the RILEY V. GARNETT. JOHN GARNETT, by his will, dated 3rd of December, 1832, devised as follows:-"I give and devise all those five messuages or tenements, respectively numbered 6, 7, 8, 9, 10, together with so much of the other moiety or half part of the said garden as is freehold, unto the said John Garnett, James Soilleux, and James Lill, of Church-street, Bethnal Green-road, butcher, their heirs and assigns, upon trust to pay the rents and profits thereof, as the same shall from time to time arise and be received, into the proper hands of Mary Ann Elisha, the wife of Peter Elisha, of Bennett's-place aforesaid, hay salesman, another daughter of my said wife, during the term of her natural life, or otherwise to permit or suffer her to receive the same to and for her own sole and separate use and benefit, to the intent that the same may not be at the disposal, or subject or liable to the control, debts, or engagements, of her present or any future husband, but only at her own Nov. 6th. Devise unto and to the use of heirs and as trustees, their signs, upon trust to pay the rents and profits to a married woman, for her separate use, for life; and, after her decease, in trust for all her chil should attain twenty-one, or, being daughters, attain that dren, who age or marry, and their heirs and assigns for ever, as tenants in common:Held, to give vested estates to all her chil dren as they came into ex istence, subject to be divested on their deaths under twenty-one, and (if daughters) unmarried. VOL. III. TT D. G. S. 1849. RILEY ". GARNETT. sole and separate disposal, and for which her receipt or receipts alone shall be a good and effectual discharge; and from and after the decease of the said Mary Ann Elisha, in trust for all the children of the said Mary Ann Elisha, by the said Peter Elisha begotten or to be begotten, who, being a son or sons, shall attain the age of twenty-one years, or, being a daughter or daughters, shall attain that age or be married, share and share alike, as tenants in common and not as joint tenants, and their heirs and assigns for ever. And as to the said slip or parcel of leasehold garden ground, I give and bequeath the same unto the said John Garnett, James Soilleux, and James Lill, their executors, administrators, and assigns, in trust for such person or persons as for the time being shall be entitled to the last-mentioned messuages or tenements, and the rents and profits thereof." And the testator thereby empowered the said James Soilleux, John Garnett, and James Lill, and the survivor of them, his executors and administrators, as to the freehold hereditaments and premises thereby devised or bequeathed to or in trust for his daughter-in-law and her child or children, as aforesaid, during the life of such daughter-in-law, and, after her decease, in case she should have any child or children living at her decease under the age of twenty-one years, then, during the minority or respective minorities of such child or children of such daughter-in-law, of the proper authority of the person or persons thereby empowered as aforesaid, from time to time to demise or lease in manner therein mentioned, all or any part or parts of the freehold and leasehold hereditaments and premises thereby devised or bequeathed to or in trust for such daughter-in-law and her children as aforesaid. The testator died on the 17th of August, 1840, leaving Mary Ann Elisha and Peter Elisha her husband surviving. They had six children. Mary Ann Elisha died on the 25th of October, 1840. At her death, Mary Ann Riley, one of her children, had attained the age of twenty-one years; all the other five children were minors. The present suit was instituted by Mary Ann Riley and her husband, seeking a declaration that she was absolutely entitled in fee to the whole of the freehold property devised in trust for her mother for life; and praying that the trustees might be ordered to convey the same to her, and to pay to her the rents accrued since her mother's decease. Mr. Malins and Mr. Simpson for the plaintiff.—This is a contingent remainder. It is only a devise to such children as attain twenty-one. And as the plaintiff Mrs. Riley was, at the determination of the particular estate, the only person comprised in the description, she took the estate absolutely: Festing v. Allen (a), Bull v. Pritchard (b). The argument on the other side may be, that this rule does not apply where the fee is vested in trustees. But it is very doubtful whether, in this case, the estate of the trustees extended beyond the life of Mrs. Elisha. If it did, still the only protection afforded by the legal estate would be against the effect of the determination of the life estate, by forfeiture or otherwise, during the life of the first taker; none would be afforded against the consequences of the determination by death, as regards contingent remainders. A limitation of an equitable estate, which, if it had been a legal estate, would have been a contingent remainder, is equally a contingent remainder, and does not become an executory devise because the estate is equitable. They also referred to Mogg v. Mogg (c), Chapman v. Blissett (d), Doe v. Nowell (e), Fearne on Contingent Remainders, 312, Russell v. Buchanan (ƒ), Barker v. Greenwood (g), and Curtis v. Price (h). (a) 12 M. & W. 279. (b) 5 Hare, 567. (c) 1 Mer. 654. (d) Cas. temp. Talb. 145. (e) 1 Mau. & Selw. 397. (f) 2 Cr. & M. 561; 7 Sim. 628, S. C. (g) 4 M. & W. 431. (h) 12 Ves. 89. 1849. RILEY v. GARNETT. 1849. RILEY v. GARNETT. Mr. Chandless and Mr. Elmsley for other children, contrà, were not called upon. Mr. Stinton appeared for a child born after the testator's death. Mr. Speed appeared for the trustees. All parties concurred in requesting the Vice-Chancellor to dispose of the question without the assistance of a Court of law. The VICE-CHANCELLOR: My opinion is, that, although there is authority, and quite as much principle as authority, for saying that a devise "unto and to the use of" trustees and their heirs, without any restrictive words, may, by the context, be restricted to an estate pur auter vie, yet that mode of interpretation cannot be here adopted. I think that in this case such a restriction is rather excluded than introduced by the context, and that the whole legal estate is in the trustees. I am also of opinion, that, according to the true construction of the will upon the authorities preceding, and including Doe v. Nowell (a), there is an immediate equitable devise to all the children of Mary Ann Elisha, whether minors or not minors, living at the death of Mary Ann Elisha, (no child of this lady, I understand, died in her lifetime), subject to the contingency of their estates being divested upon their death in minority respectively; and that, therefore, there is an immediate title to the rents in all the children. That is my view, which it has been desired that I should state; but I should not refuse to either party the opportunity of taking the opinion of a Court of law, if it could be obtained. A child who dies under twenty-one will lose all title to the body of the estate, but will not lose his title to the rents antecedent to his death. (a) 1 Mau, & Selw. 397. In the Matter of THE LONDON, BRIGHTON, AND SOUTH COAST AND In the Matter of THE LONDON BRIDGE RAILWAY TERMINI AND In the Matter of THE LANDS CLAUSES CONSOLIDATION ACT, 1845, AND In the Matter of ELIZABETH BUDDER'S otherwise ELIZABETH PALMER'S TRUST. Nov. 16th. THIS was the petition of the legatee of an annuity pay- Leaseholds able out of lands taken by the above Company. Elizabeth Budder, otherwise Elizabeth Palmer, widow, by her will, dated the 20th day of April, 1838, bequeathed six leasehold messuages in the Maze and Alfred Court, in the parish of St. Olave, Southwark, unto George Sandham and Richard Woolford, upon trust, in the first place, by and were bequeathed, upon trust, out of the rents and profits to pay an annuity of 521., for the life of the annuitant, and, "sub ject and with out prejudice to the annuity," were bequeathed upon other trusts, but without any trust for sale. They were purchased by a Railway Company under the provisions of the Lands Clauses Consolidation Act, and the proceeds paid into Court; but the income was insufficient to keep down the annuity:-Held, that portions of the corpus ought to be sold from time to time to satisfy the growing payments. |