1786.

ROBINSON against

HARDCASTLE

[*31]

case decided, in which it has been held that the word children has been construed to extend to grandchildren; it must therefore turn upon some circumstance in the will, to shew the word children is to be taken in this unnatural sense. Such a gift has never been considered as a part of the bounty to the children. All the cases, I can recollect, appear to have been decided the contrary way, that the children take a part of the estate as purchasers. I take the rule to be, that the parts of the estate must vest in the persons who are the objects of the power. The next question is, supposing the intent to appear, that the limitation should be such, whether the limitation, in itself, would be legal. In the Duchess of Marlborough's case (5), the power was granted in perpetuum; it was to defeat estates, and revest them, and tended to an absolute perpetuity in sæcula sæculorum. What is a perpetuity, but the extending the estate beyond a life in being, and twenty-one years after? That would have been the effect of this if done by devise; the question therefore is, whether by the intervention of a power, a grantor may extend the estate, beyond the rules of law, to what the law terms a perpetuity. A man may appoint 100 or 1000 trustees, and that the survivor of them shall appoint a life-estate, that would [not] be within the line of a perpetuity. (6) Then the question is, whether, such an illegal estate being interposed, it shall not be considered as a nullity, and the next estate be brought forward, and attached to the estate for life. The cases seem to support this doctrine; but not so clearly as for it not to deserve further consideration. Void uses have been held to support remainders, in order to serve the intention in wills; but the law has not carried the same construction in deeds. This is a will; the object of it is to execute a power: it must have therefore the favourable construction of a will, and you must consider the testator as intending, if the first use was bad, that the subsequent limitation should take place; though [*] this seems an extraordinary intent to attribute to him. There is a case of Nichol v. Nichol, which was sent by this court to the Common Pleas, and returned with a certificate: it was to the second son for life, and, after his decease, or in case he should become eldest, then to his second son, and his heirsmale. It was contended, that the limitation went beyond the rules of law, and could not take place as an executory devise. The Common Pleas held the estate not to be void, but vested in the second son, to preserve the general intent; and that he took to him and his heirs, determinable on their accession to the paternal estate. The questions in this case require more consideration; I can only retain the bill, and permit the parties to bring ejectments.

But it appearing the legal estate was in the trustees, his Lordship ordered a case, for the opinion of the court of King's Bench. (7)

(5) 3 Bro. P. C. 232. octavo edit. and 5 vol. 592. folio edit.

(6) See this observation referred to, and approved as unquestionable law by the Ch Bar, and by Lord Eldon C. in Thelusson v. Woodford, 11 Ves. 136, 137. 145.

(7) See the report of the arguments, &c. 2 T. R. 241. And see it on the equity reserved, postea, 344. The 3d edition refers for some material cases on Powers to Bristow v. Warde, Wilson v. Piggott, Routledge v. Dorril, and Whistler v. Webster, 2 Ves. jun. p. 336. to 372.

1786.

BATTELEY against WINDLE. [28 January.]

(Reg. Lib. 1785. A. fol. 270 b.)

executor

THE HE testator, by his will desired his brother would be executor and Appointing an trustee for his sister Batteley, and her children, and gave him no legacy. (2)

The question was, whether he should take the residue; Mr. Scott contending that by this will he was a mere trustee, and not entitled to the residue as an executor.

Lord Chancellor. The question is, whether the word trustee shall alter the sense of the word executor? I think it must be taken reddendo singula singulis, and that he is a trustee only as to the trust-fund, and in other respects an executor.

His Lordship therefore decreed him the residue.

(1) S. P. Pratt v. Sladden, 14 Ves. 193. 199. Quod vide. Sir W. Grant, M. R., observes there, that the result in the principal case above is correct, although it is rather imperfectly stated.

(2) The will (as in Reg. Lib.) was as follows: "First, I desire my debts and "funeral expences may be paid as soon as can be; and then all my money in the funds "I would remain and increase the interest to the principal so long as my brother "Charles B. shall live, and, after his death, then I would give the interest from that "time arising to my sister Batteley, to bring up and provide for herself and children; "and at her death be parted amongst them equally, share alike: All my furniture I "would have sent to my brother Charles B. And I do desire my brother Richard "Windle to be my executor and trustee to and for my sister Batteley and her children." Reg. Lib.

It appears from Reg. Lib. that the defendant did not make the point by his answer; on the contrary, he submitted to account, and to transfer the balance in his hands as the Court should direct. His counsel, however, (as it seems) suggesting the point in his favour at the hearing, the Court declared him entitled to the residue of the testator's personal estate not specifically bequeathed. Reg. Lib.

trustee, shall not take from

him the residue. (1)

[*] FORD against COMPTON. [7, 10, 13, and 22 February.] (Reg. Lib. 1785. A. fol. 204. b.)

IN a cause for specific performance of an agreement for a lease of an house, the bill called upon Dr. Compton to produce the original agreement, which was by letter from him, and an affirmative reply on the part of the plaintiff, and they gave him notice to produce the letter in reply, in order to read it at the hearing: and, to provide for his not producing it, they got a copy, which was in their own possession, stamped, in order to read that. At the hearing, Dr. Compton produced the original letter.

(1) See Hearne v. James, postea, 309.

[32]!

An original letter stamped, after produc tion, to make it evidence. (1) [Specific performance of agreement de

creed upon an offer by letter, which was

forthwith accepted by another letter in reply, (2)]

(2) The letter of the defendant offered the plaintiff a lease upon certain terms, and insisted on a reply by return of the post. The plaintiff notified his acceptance of those terms forthwith accordingly. The defendant afterwards granted a regular lease of the premises to another person, who was a party to the suit. The Court decreed the material defendant specifically to perform his agreement for a lease to the plaintiff, with costs to be paid by him; and it set aside the other lease, which he had so granted in fraud of his contract., Reg. Lib.

C 3

Mr. Scott,

1786.

FORD against COMPTON.

Mr. Scott, for the defendant, objected, that the copy could not be read, because the original was in court; and that the original letter could not be read, because it was not stamped; and he contended it could not now be stamped, because the twenty-one days limited by the act of parliament were expired.

Mr. Mansfield, for the plaintiff, said, the Court of Exchequer had determined, that, upon payment of the penalty, the instrument might be stamped, although the time was expired. If Dr. Compton had destroyed the original, this stamped copy would have been good evidence, The legislature, in forming the stamp acts, did not mean to alter the rule of evidence.

The plaintiff desired the cause might stand over to get the original stamped.

Lord Chancellor observed, that, if a stamped original was lost, it would be difficult to get a copy stamped.

But the cause stood over, and they got the original stamped, and produced it in evidence the next day,

[*38]

[S. C. 1 Cox, 206. quod vide.]

[A deposit made on opening a bidding having 'been laid out in the public funds, this de

A

DOYLEY against The Countess of Powis.

(Reg. Lib. 1785. A. fol. 172.)

Sum of 2000l. was deposited, by Lord Beauchamp, upon an opening of a bidding, upon the sale of an estate in this cause, and had been by order laid out in the funds. The [*] stocks rising, Lord Beauchamp, who is ordered to complete his purchase, claims the advantage of the rise in the payment of his purchase-money, the money paid in being only a posit is consipledge. dered as part of the purchase

⚫money paid,

and therefore

But Lord Chancellor said, the difference was where money was a mere pledge, and where it was part of the purchase-money, which it was here; and if there had been a loss, the purchaser could not have been the depositor is called upon to pay more than his purchase-money. (2) When the money is paid in, it becomes part of the purchase-money.

not entitled to the dividends accruing be

tween the time of the deposit

A similar order had been made in the case of Ambrose v. Ambrose, on the 5th of December last. (2)

and the completion of the purchase; but only to interest on the deposit at 4 per cent. (1)]

(1) See Poole v. Rudd, post. 3 vol. 49. And see in Smith v. Jackson, 1 Madd. Rep. 621. and the Report 1 Cox, 206.

(2) And see also Poole v. Rudd, post. 3 vol. 49. and I Madd. Rep. 621.

Lincoln's Inn Hall, 28th Feb. question

whether an interest in a heritable bond

charged upon

GLOVER against STROTHOFF.

MARY BURGESS seised and possessed a considerable real estate, consisting of several sums of money secured on heritable bonds, according

lands in Scotland, will pass by will; referred to the Master to report the law of Scotland. A bequest that 4000l. and a further sum of 1500l. shall pertain to J. P. after the death of R. G. without lawful issue is too remote, and the whole shall vest in R. G. (1)

(1) See Lord Loughborough's approbation of this case in Chandless v. Price, 3 Ves 10ì. Upon the points, see Attorney General v. Hird, and Rigge v. Bensley, antea, 1 vol.

according to the laws of Scotland, and a considerable personal estate, did make her last will and testament in writing, duly executed and attested for passing real estates of inheritance, to the effect following: "Know all men by these presents, I, Mrs. Mary Burgess, of Bulls "Cross, in the county of Middlesex, widow, being perfectly satisfied of "the friendship, fidelity, and fitness of the persons after mentioned, for "executing the following trusts, do, by these presents, assign, convey, " and dispose to and in favour of Richard Glover, of James Street, West“minster, my brother (since deceased and other trustees), and to the "survivors or survivor of them, and to the heirs of the last survivor; "but in trust always for the uses and purposes after mentioned, all and "whatsoever lands, heritages, debts, sums of money, government stock, "and all other real and personal estate and effects, household-furniture, "jewels, plate, watch, china, and others whatsoever, pertaining to me, "or that shall be resting, owing, or pertaining to me at the time of my "death; and particularly, and without prejudice to the aforesaid generality, the sum of 6000l. sterling, being part of the sum of 25,000l. "contained in an heritable bond and disposition upon the estate of "Kilhead in Scotland, by Alexander Macknochie in Edinburgh, to [*] the said Richard Glover, Joseph Banks of Lincoln's Inn, and Archi"bald Douglas of Douglas, Esquires; to which bond, to the extent of "the said 6000l. contained, I have a right by declaration of trust from "the said Richard Glover, Joseph Banks, and Archibald Douglas, and "also the sum_contained in an heritable bond and disposition by James "Robertson, Esquire, of Earnock, to the said Christopher Strothoff, "Thomas Lewis, and Richard Heaton, secured upon his estate at Ear"nock: to which bond, and sums of money therein contained, I have a "right by declaration of trust from the said Christopher Strothoff, "Thomas Lewis, and Richard Heaton, with full power to my said. "trustees, immediately after my death, to enter into possession of my "whole real and personal means and estate and effects, and to apply the "same, and the prices thereof, to the ends, uses, and purposes follow"ing, (viz.) in the first place, for the payment of all my just and lawful "debts, and funeral expences." She here gave some specific legacies and annuities. (2) “And further, I hereby appoint my said trustees to lay out at interest, upon real and personal security, as they shall think proper, the sum of 4000l. sterling, part of my said real and personal "estate, and to make payment of the interest of the said sum of 4000l. only, to Richard Glover, the younger son of the said Richard Glover, during all the days of his natural life, and to make payment of the principal sum, itself, to the heirs to be lawfully procreate of his body; but "declaring that the above interest shall not be affectable by the debts "or deeds of the said Richard Glover: and, in the event of his death, "without lawful issue of his body, or of his selling, assigning away, or "otherwise disposing of, the above interest, or any part of it, my will is, "that the said sum of 4000l. together with 1500l. sterling further, making "in all the sum of 5500l. sterling, shall pertain and belong to the Reve"rend John Henry Williams, vicar of Wellsbourne. And, further, I

66

hereby appoint, that the sum of 12,000l. sterling, contained in the two "heritable bonds above mentioned, on the estates of Kilhead and Earnock,

170. 187, &c. with the various references, especially to Kirkpatrick v. Same, 13 Ves. 476, &c. Barlow v. Salter, 17 Ves. 479, &c., and Elton v. Eason, 19 Ves. 73, &c.

(2) Mr. Cox's note contains the following addition: -" And amongst others she gave 'to Mary Williams 501., and in the event of her death before me, to make payment to John Henry Williams, her son, of the sum of 30%., and the sum of 500l. to Henry Williams, the son of the said John Henry Williams, and my godson.' Mrs. "Williams survived the testatrix, but the 500l. was given up as clearly belonging to Henry Williams. She then proceeded thus:" (ut suprà.) "do

"

C 4

1786.

GLOVER against STROTHOFF.

[*35]

[+36]

"do continue with my said trustees, for the uses and purposes following, "(viz.) one-third part of the interest of the said sums to be paid to the " said Richard Glover, of James Street, Westminster, my brother, and "the remaining two-thirds to my said sister Elizabeth Strothoff, during "their joint lives, and the whole of the said interest to the survivor of "them during the natural life of the said survivor; and, after the death "of the last liver of my said brother and sister, [*] I appoint the whole "of the said interest to be paid to the said Richard Glover, my nephew, during all the days of his natural life, and the said principal sum of "of 12,000l. itself, thereafter to pertain and belong to the heirs of "the body of the said Richard Glover, declaring, at the same time, that "no part of the above interest shall be affectable by the debts or "deeds of the said Richard Glover the younger; and, in the event "of his selling, assigning away, or disposing of the above interest, or any part of it, my will is, that the sums of money above mentioned, principal and interest, shall immediately thereafter fall to the next heir, in "the same manner as if the said Richard Glover was naturally dead; "and, in the event of his the said Richard Glover's death, without heirs of his body, I hereby appoint 6000l. part of the said sum of 12,000l. "to pertain and belong to John Plumtree, Esquire, junior, of Jermyn Street, and the like sum of 6000l. to pertain and belong to Mary "Plumtree, daughter of John Plumtree, Esquire, of Jermyn Street, "and their heirs for ever. I hereby appoint the whole remainder of

66

my fortune and estate subject to the payment of the said annuities, to "be paid to the said Mrs. Elizabeth Strothoff, my sister, to be disposed "of by her as she shall think proper, notwithstanding her said co"verture: and my mind and will is, that the same shall not be subject or liable to the controul, debts, or engagements of her present, or 66 any after-taken husband." Mary Burgess, some time afterwards, made a codicil to her will, not executed in the presence of witnesses, and which contains the following clause: "I revoke that part of my " will, wherein I have left my brother Richard Glover one-third part "of the interest of the heritable bonds upon the estates of Kilhead and "Earnock, and leave only a sixth part of the interest to him."

Three questions arose upon the construction of this will. 1. Whether the remainder over of the 4000l. and the legacy of 1500l. after the death of Richard Glover, without issue of his body, were not too remote. 2. Whether, according to the law of Scotland, the heritable bonds could pass by this bequest. 3. Suppose the bequest to be legal, whether the remainder over to the Plumtrees was not too remote. Mr. Mansfield, Mr. Caldecott, and Mr. Stratford, (in support of the limitation,) argued, That it was good, from the manifest intention of the testatrix, that it should take place upon the [*] event of Glover's dying without leaving lawful issue; that, wherever this was pointed out by the devise, it was good; and slight circumstances had been relied upon, as sufficiently marking that intention: for this purpose they cited Keily v. Fowler, 6 Bro. Parlt. Cases, 309. Higgins v. Dowler, 1 Wms. 98. Stanley v. Leigh, 2 Wms. 686. Butterfield v. Butterfield, 1 Ves. 133. (3) Daw v. Pitt, Fearne, 347. With respect to the 1500l. they insisted that was a legacy in præsenti, merely coupled with the reversionary interest, and was not to wait till that time.

Mr. Solicitor General (for Richard Glover, the heir at law, and to whom the testatrix had devised the interest of the 4000l. and the 12,000l. the heritable bonds). —As to the 4000l., he insisted it was an estate-tail in money, executed in Richard Glover, the first taker, Butter

(3) See the statement in Butterfield v. Butterfield, rectified in Supplement to Vesey, sen. p. 81.