the estate of Mary Thurlow, consisting of securities for money, amounting to 10,000l. and 5000l. paid by said Pinckney Wilkinson, together with 5000l. to be paid by him, within ten years, or, in case he should happen to die, by his executors, &c. within one year, should be laid out in the purchase of lands, to be settled to the use of Pinckney Wilkinson for life, without impeachment of waste, remainder to Mary Thurlow for life, in bar of dower, remainder to the use of the children of the marriage, subject to such powers, limitations, and provisoes as Pinckney Wilkinson by deed, or will, should appoint, and, for want of such appointment then as Mary Thurlow should appoint, and in default of such appointment, to the use of their children, and in default of issue, to Pinckney Wilkinson in fee.- Before the purchase, the trustees had powers to call in, and replace the funds in which the sums were invested; which powers were executed by frequent removals of the stocks. The trustees in this deed were all since dead, the executor of the survivor was before the court. By deed, bearing even date with this deed, Mary Thurlow had granted (in pursuance of the agreement between the parties) all her real estate, and covenanted to surrender her copyholds, and assured all her personal estate (save the securities aforesaid) to trustees to her sole and separate use, and disposal. [*] The marriage took place, and there were several children, who all died under twenty-one, during the life of the husband and wife, except Mary, the wife of Smith, and Ann, the wife of Thomas Lord Camelford. Mary married Smith, in the life-time of the father and mother, without their consent; in consequence of which, they gave no portion upon her marriage: of that marriage there are issue four children, who are defendants. Pinckney Wilkinson in 1752 purchased of the heirs of Evirilda Thornkill, for the sum of 16,300l. the manor of Polestead Hall, otherwise Westgate in Norfolk, and other premises, which were conveyed to Mark Close, as a trustee for Pinckney Wilkinson, his heirs and assigns. Close is dead, without making any conveyance to Pinckney Wilkinson: his eldest son, and heir at law, was before the court. Pinckney Wilkinson, 1st August 1768, made his will, duly attested, to pass real estate, in which, after reciting the agreement on the marriage, that the &c. were to be laid out in real estate to the uses declared by the settlement, and reciting that he had received 10,000l. out of his wife's fortune, and had purchased the freehold estate in the County of Norfolk, amounting to more than 20,000l. but had not conveyed the same to the uses of his marriage settlement; and that it was not his intention that such estates should be considered as an investment of the 20,000l. trust money, but that the sum of 20,000l. and also the surplus of 8617. 14s. 9d. arising by the sale of the stocks in which 15,000l. of the said trust course, occasioned a reversal of so much of the original decree, and a declaration agreeably to such joint direction. Wide S. C. on the Bills of Review, 2 Ves. jun. 698. 701. 715. under the name of Smith v. Lord Camelford. (2) Vide Robinson v. Hardcastle, antea, 22. & 344. and 2 T. R. 241. For observations on the principal case, &c. see also Bristow v. Warde, 2 Ves. jun. 336. 348. 364. Crompe v. Barrow, 4 Ves. 684, 685. Brudenell v. Elwes, 7 Ves. 382. 388. 390, &C. See also 1 Ball & Beattie, 94. and the several references. (3) Held afterwards, on the Master's report, to be a specific bequest, passing all which had been purchased with those bills. Vide post. 3 vol. 160. (4) Lord Loughborough C. held, on one of the hills of review, that even under this de cree, the husband was only chargeable with any part of the principal of his wife's sepa rate property, and by no means in respect of rents and profits received during the coverHis Lordship, however, added an express direction to that effect. See 2 Ves. jun. 698. 715. 716. ture. 1786. PITT against JACKSON. [ *52 ] 1786. PITT against JACKSON. [ *53 ] [*54 ] money were invested, should be taken out of the personal estate, in lieu of such trust money, and applied in manner therein-after mentioned; he gave and devised to the surviving trustee in the marriage-settlement, the sum of 10,000l. part of the said sum of 20,8617. 14s. 9d. (subject to an annuity to his wife) in trust to lay out in real estate, to be conveyed in trust for his daughter Mary during her life, for her sole, separate, and peculiar use, remainder to the trustees to support contingent remainders, remainder to all and every the child and children of his daughter Mary, as tenants in common, with remainders over; and, as to the residue of the said sum of 20,8611. 14s. 9d. he directed that his daughter Ann should be entitled to the same, for her separate use; and he further gave to his [*] daughter Ann the further sum of 30,000l. and he gave also to Ann, all his manors, &c. freehold and copyhold, for life, remainder to trustees, to preserve contingent remainders, with remainders in strict settlement, with remainders to the first and other sons of Mary, and an ultimate remainder to - Smales in fee. In 1771, Mary, the wife of Pinckney Wilkinson died, and in July 1771, Ann, the daughter, married Thomas Pitt, Esq. now Lord Camelford, and Pinckney Wilkinson gave her a portion of 40,000l. 3 per cent. Bank consol. annuities. Soon after the marriage, Pinckney Wilkinson made a codicil to his will, dated 1st August 1771, reciting the will, the marriage of Ann, and the portion; and thereby revoked the legacy of 40,000l. given in his said will, to his said daughter Ann. After the execution of the will and codicil, Pinckney Wilkinson purchased other lands, and 25th December 1781, made another codicil, by which he devised them to the same uses to which he had already devised the Polestead Hall estate; and further reciting that his daughters had been admitted to copyhold lands, and were entitled to such lands which had been their mother's, he directed that they, and all other persons, claiming by, through, or under them, should do every necessary act for settling the same, in like manner as he had by his will disposed of the Polestead Hall estate; and revoked all benefit given by his will to such persons as should refuse or neglect to do such acts, within six months after his decease; and gave not only all such benefit, but whatever such person or persons might become entitled to as his heir at law, or otherwise under him, to the same uses (as far as the law would permit) to which he had given his manors of Polestead Hall, &c. And whereas he was entitled to certain described stocks, and about 7000l. in navy bills, he gave the same to his executors, in trust, to accumulate for the children of his daughter Ann Pitt, in such shares as the said Thomas Pitt and Ann Pitt should appoint. And gave his personal estate, given to Ann Pitt for life, to the said Thomas Pitt, if he should survive his wife Ann, until he should marry again; but, upon his decease, or marriage, the remainder to take place as in his will. Pinckney Wilkinson died 4th March 1784, seised and possessed of large, real, and personal property, and, in particular, of 18,000l. navy bills, without revoking his will or codicil. [*] It further appeared by the bill, that there had been some treaty between Pinckney Wilkinson and Mary his wife (5), for the purchase of her real estates, which, upon her marriage, were settled to her sole and separate use; and two receipts were proved in the cause, one for 2621. 10s. as the purchase-money for a little farm at Snettisham, Norfolk, whereof she promised to make him the proper conveyance on demand; the other for 930. in part of 31067. which he had agreed to pay for all her estates in any of the Burnhams, or elsewhere in Norfolk, which she promised to convey to him on demand. (5) (5) Vide note (1) antea, p. 51. Several Several points arose in the cause; the first raised by the bill was, whether the purchase of the lands in Norfolk by Pinckney Wilkinson was bound by the marriage-settlement. And, as to this point, the defendants, the Smiths, contended, that the purchase was made with trust-money advanced to Pinckney Wilkinson by the trustees for that purpose; and therefore was bound by the uses declared in the marriage-settlement. But to this argument it was answered, on the part of the plaintiffs, that no time being fixed by the articles, within which the purchase was to be made, Pinckney Wilkinson had his whole life to perform it; which he not having done, the personal estate must be liable to the payment of the 20,000l. 2. The next question was, whether the gift to Mary Smith for life, with remainder to her children, was a good execution of the power: and, upon this point, the cases of Alexander v. Alexander, 2 Vesey, 640. and Mallison v. Andrews, Ch. Hil. 1782, (cited ante, p. 26, n.) were cited, and said that a distinction had been made in Cavendish v. Cavendish, B. R. 11th February 1782, (also cited ante, p. 25, n.) between real and personal estate: but his Honor being clear upon this point, especially upon the cases of Doe on the demise of Brownsmith v. Denny, Hil. 29 Geo. 2. (cited 2 Wils. 337.) and Adams v. Adams, Cowp. 651. was not further urged, but acknowledged that the excess was void. It. 3. The next question was, whether, if the appointment was bad, on account of the excess, the whole should be considered as unappointed. His Honor also stopped the argument (6) of this point, by asking, whether it should not go by cy pres, and cited the case of Chapman v. Brown, 3 Bur. 1626. [*] 4. The 4th point was, whether the codicil revoking the 40,000l. legacy given by the will, whereas the will gave a legacy, properly so called, of 30,000l. only, the other 10,000l. being an appointment by virtue of the power, should revoke this latter 10,000l. also. This question was likewise but slightly agitated, it being conceded by the counsel for Lord and Lady Camelford, that the revocation extended to the 10,000%. and that Pinckney Wilkinson was become a purchaser of that moiety, by. the fortune given to Lady Camelford on her marriage. (7) 5. The next point was, with respect to the navy bills. It appeared that, at the time of testator's death, he was possessed of 18,000l. navy bills; but, at the time of making the will, he was possessed of little more than 7000l. having that day disposed of about 2000l. the doubt was now what should pass. (8) 6. The last question was, whether the transaction between Pinckney Wilkinson and his wife amounted in equity to a purchase of her estate, and, if not, whether he should account for the rents and profits thereof, and whether the Smiths must not elect between the estate descended from the mother, and their claims under the will. These points were argued by Mr. Solicitor-General (Macdonald) for the plaintiffs, Mr. Scott and Mr. Hood for Lord and Lady Camelford, Mr. Ambler for the infant defendant, Mr. Price and Mr. Partridge for the defendants Smith and his wife. The Reporter was absent when his Honor gave his opinion; but it was to the effect following: his Honor declared the will of Pinckney Wilkinson and the second codicil thereto, to be well proved; and that no part of the trust funds had been vested in (6) Not so. It was argued on this point on behalf of Mrs. Smith, on the authority of Humberston v. Humberston, 1 P. W. 332.-From Lord Redesdale's notes. There is also a note to the same effect in the 3d edition. (7) Lord Redesdale's notes refer, as to this, to a MSS. case of Feast v. Feast. (8) When it afterwards came before the Court, on the Master's report, the Lord. Chancellor held the bequest specific; and that several funds passed which had been purchased with the navy bills. Vide S. C. on this point, post. 3 vol. 160. D 3 the 1786. PITT against JACKSON. [*55 ] 1786. PITT against JACKSON. [ *56] [S. C. 2 Dick. Master of the Money to be an infant can not [dispose of it by will as money (1): but it will on the infant's death de the purchase of real estates; that the whole of the trust-funds had been appointed, or satisfied by the will and codicils of the testator, and by the portion advanced on the marriage of Lady Camelford, and that the portion so advanced was to be considered as a satisfaction as well of her share of the 20,8617. 14s. 9d. as of the 30,000l. legacy bequeathed to her by the will. He also declared the appointment in favour of the defendant Mary Smith invalid, and that the whole of this share appointed to her for her separate use, is, in order to effectuate the testator's general intention, to [*] be considered to vest an estate-tail in the lands directed to be purchased with that share, in her, Mary Smith, with a remainder in fee to the defendant Lady Camelford. And his Honor further declared, that the real and personal estate of Mary Wilkinson, settled by the deed of the 13th December 1735, is to go according to such of the trusts as are capable of taking effect, subject to the election to be made after the accounts directed shall have been taken, and gave general directions for an account thereof, and of what navy bills, exchequer annuities, long annuities, and annuities of the year 1777, the testator was entitled to at the day of the date of this second codicil, and at the time of his death, and whether the same were sold or paid off, and how the money has been applied, to make a separate report as to that enquiry; and also whether the testator possessed himself of any part of the real or personal estates of Mary Wilkinson, and declared, that whatsoever he should so have received is to be considered as a debt due from him (9), to be answered out of his personal estate; and that the share of the sum of 20,8617. 14s. 9d. appointed in behalf of Mary Smith, should be laid out in land, and be settled to the use of two trustees in trust for her, and the heirs of her body; she to have the rents, &c. to her separate use, and, in default of issue, to Lady Camelford, her heirs and assigns for ever, and reserved all further directions. (10) (9) Lord Loughborough C. held this only referable to any principal sums, and by no means to any rents and profits received during the coverture: his Lordship, however, added a declaration to that effect. See 2 Ves. jun. 715, 716. et antea, p. 51. note (4). (10) The Editor finds the above statement of the decree correspond exactly with Reg. Lib. CARR against ELLISON. [9th and 16th May.] (Reg. Lib. 1785. A. fol. 390.) laid out in land; BY a private act of parliament, money, which had been received as the price of lands, sold for the purpose of easy division, was ordered to be laid out in the purchase of lands, under the direction of this court, to be procured by petition to the Lord Chancellor. Under the uses declared by the act, a female infant had such an interest, that she might have elected to take it as money, absolutely; but, while it continued land, it was subject to a remainder over. By her will, she disposed of it both ways, as money and land; the will was duly attested to pass real estate. The question was, whether the money could pass by this will, or must be considered as land; and therefore not to pass by the will of an infant. scend to his heir; who may take it either way.] [The plaintiff claimed it as heir at law, ex parte materná.] (1) And the Court, where it ever interferes, guards against every thing which may tend to change the nature of the property; as between the representatives of infants, lunatics, &c. See per Lord Eldon C. in Ware v. Polhill, 11 Ves. 278. and the next note. Master [*] Master of the Rolls. - Money to be laid out in land must descend as land, from generation to generation, Bowes v. The Earl of Shrewsbury, 5 Brown's Parliament Cases, 269. The infant was seized of this, as of a real estate. During her infancy, she could not vary the nature of the estate. In the case of Cave v. Čave, a purchase was made, with personal estate, but subject to be considered as the personal estate of the child during infancy. (2) The court is, in this case, bound, by the act of parliament, to lay the money out in land, even though the person beneficially entitled might convert it again immediately. A petition must be presented to the Lord Chancellor, agreeable to the terms of the act of parliament. (3) (2) Lord Eldon C. says, in Ware v. Polhill, 11 Ves. 278. “I have uniformly made it a rule, where property of one nature has been applied for the benefit of an infant to "property of another nature, to have an express provision, that if he shall not attain the "age at which he will have a disposable power, the representative shall not be preju"diced in any degree by the act done by the Court in contemplation of the infant's "benefit in all the circumstances surprise or accident can throw round it. It is said "this is the effect of the Court's declaration. That is not correct; for the declaration is "made, because that is the law applicable to the case of the infant; and it is, of course, "to reform the order. It does not create the right, but is a declaration of a pre-exist"ing right so to have the property secured.' " (3) The plaintiff accordingly presented his petition, which came on for hearing with the cause; whereupon and “on debate, &c." the Court declared that the plaintiff as the heir ex parte materna of the infant E. S. deceased, was entitled under the act of parliament to the sum in question: and he electing to take it instead of having it laid out in land, the funds were ordered to be transferred to him. R. L. 1786. CARR against ELLISON. [ +57 ] The Earl of TANKERVILLE against FAWCET. [May 9.] (Reg. Lib. 1785. A. fol. 356.) FAWCET, having contracted the debt in question, which was by Mr. Scott, for the executrix. The rule is well understood, where the debt is not the debt of the person whose personal estate is called upon, the personal estate shall not be applied, in payment of it, but the land must go cum onere; but this was not the debt of Colville. - Evelyn v. Evelyn, 2 Wms. 591. If the money had been advanced to Colville himself, the personal estate would have been liable; but it consisted of an original debt of Fawcet's, and a large arrear of interest upon that debt. Mr. Mitford, [on the same side.]-In Lewis v. Nangle (2), 2d November 1782, it was a mortgage of the wife's estate for her debts while sole, and for a further sum borrowed. It was decided, that the estate alone was liable, and the husband only bound to keep down the interest. [*] Master of the Rolls. The general personal estate shall be ap (1) Vide S. P. Lawson v. Hudson, and D. Ancaster v. Mayer, antea, 1 vol. 58. 454. with the Editor's notes. Another point also seems to have been argued in the principal case. Vide 1 Cox. 239. See also in the judgment, postea, with regard to the specific bequest. (2) Ambler, 150. and in Mr. Cox's note to Evelyn v. Evelyn, 2 P. W. 664. and I Cox, Ca. Ch. 240. [Vide S. C. i Cox, 237.] Master of the Rolls for Lord Chancellor. Personal estate not to exonerate the real, of a debt not con tracted by the party. (1) [ *58 ] |