1788. SCOTT against TYLER. [486] [487] The next question is, with respect to the River Lee bonds; under the authorities which have been cited, I contend the [*] bankers have no right to detain them. The bonds are themselves assignable by special form, and, appearing to be Mr. Key's, Mrs. Tyler's property appears to be in the character of his executrix, as she has them under no assignment, she deposited these with other securities for money, with the bankers, as a security for the money advanced. It is clear, therefore, the bankers knew they were dealing with Mrs. Tyler, as executrix of Mr. Key. They lend her money as a trader, not for the purposes of the trusts of the will-This is not an ordinary way of dealing with executors. If an executor sell the property of the testator, the purchaser is not bound to take notice of the application of the money; but where an executor deals in this way, it is incumbent on the party dealing with him to be cautious. It is not usual for an executor to mortgage the testator's property, but where an executor enters into a trade, and deposits securities belonging to the testator, as a security, it is incumbent on the party dealing with him, to enquire, whether it is specifically bequeathed. Crane v. Drake, goes further, for that was the case of a creditor, and the person dealing with the executor was obliged to answer to the creditors, and, although in Nugent v. Gifford, Lord Hardwicke held the mortgage was good, yet there is a distinction between a creditor and a specific devisee, as the party may know, by looking into the will, whether the property is specifically bequeathed.-Executors will neither be endangered nor much trouble given to persons dealing with them, if they are bound to enquire whether the property is specifically bequeathed. There is no case precisely in point of an executor, but there is one which bears considerable analogy; a factor (even in a commission del credere) though he has a complete power to sell, cannot pledge the goods of his principal for his own debt. If a person to whom the factor is indebted takes the goods he shall answer to the original owner. Here the Hankeys could not but know they were dealing with Mrs. Tyler as an executrix, with respect to these bonds. The cause stood over till this day, when it came on for judgment. [*] Lord Chancellor (after stating the case as above) delivered his opinion to the following effect. (20) Upon this matter two questions have arisen; 1st, Whether as this case stands, the plaintiffs have any, and what, interest in the 10,000l. Southsea annuities. 2. Whether the bankers are entitled to hold the bonds as a security for the money due to them from the bankrupt. The testator makes four bequests to his daughter, a contingent interest in 5000l., the 10,000/. in question, the freeholds, and the River Lee bonds, all upon her living to twenty-one married or unmarried. If she dies before, the 1st, 3d, and 4th take no place. Yet the interest of the fourth is to be paid to her separate use during infancy, notwithstanding her coverture. The 2d bequest may take place before twenty-one, by marriage with consent of her mother. I suspect that the testator has failed of expressing his full intention concerning the 10,000l. He gave it to his daughter on a double contingency: he seems to have meant it for the mother, on failure of them. But he hath given it over to her also, on another double contingency, the death of the daughter before twenty-one, unmarried. The main argument of the plaintiff turned on this position, that one branch of the contingency implied a condition in restraint of marriage, (20) See the judgment from Lord Thurlow's own notes, verbatim, in 2 Dick, 721.; et vide per M. R. 3 Meriv. 118., et antea, 431 note (1). — Upon the various cases and the law as it now stands, see some of the latest, which are referred to in the preceding note: which is merely void, and the legacy absolute; and many cases were cited in support of it: but the cases are so short as to afford no distinct view of the principle on which the rule is laid down. The early cases refer in general to the Canon law, as the rule by which all legacies are to be governed. Towards the latter end of the last, and beginning of the present century, the matter is more loosely handled: the Canon law is not referred to, as affording too positive a rule, but these conditions are treated as partaking of the force allowed them by the law of England, but at the same time as unfavourable to the good order of society at length it became a common practice [*] that such conditions were only in terrorem. I do not find it was ever seriously supposed to be a testator's intention to hold out the terror of that which he never meant to happen: but the Court has made such conditions amount to no more. Provisions against improvident marriages during infancy or to a certain age could not be thought an unreasonable precaution for parents (21): the custo:n of London has been found reasonable. About the middle of the present century, doubts arose which divided the opinions of the first men of the age. The difficulty seems to have been in reconciling the cases.-The prevailing opinion was, that devises of lands should follow the rules of the common law; and legacies of money the rules of the Canon law. The question remains unresolved, what is the nature and extent of the rule. An injunction to ask consent is lawful, as not restraining marriage generally. A condition that a widow shall not marry is not unlawful.--An annuity during widowhood A condition to marry, or not to marry, Titius, is good.-A condition prescribing due ceremonies, and place of marriage is good-still more is a condition good which only limits the time to twenty-one, or any other reasonable age, provided it be not used evasively, as a cover intending to restrain marriage generally. It is agreed on all hands that (however restrictive of marriage) when the legacy is given over to other uses, the testator shall be deemed to regard those uses. The case of Underwood v. Morris, by Baron Parker, for the Chancellor, does not appear to have been closely considered. I agree with the late Lords Commissioners in denying the authority. (22) It was not contended on the part of the daughter, that if the bequest had been when at twenty-one or twenty-five in case she was unmarried, without more, that she could have claimed the legacy; but, because the mother was impowered to accelerate the gift by consent, it is argued to be, indirectly, an illegal restraint of marriage. [*] I am of opinion that the daughter, having married at eighteen, improvidently (as far as appears) and against the anxious consent of the mother, never came under the description to which the gift of the 10,000l. South-sea annuities was attached: it is therefore void, and part of the residue, and belongs to the assignees of the mother. (23) Lord Chancellor was proceeding to give judgment on the second point, respecting the bonds (24); but was interrupted by the Solicitor General, who informed him the parties had come to a compromise. (21) Vide 2 Dick. 721., 3 Ves. 89. 95, 96, 97, &c. (22) See in Hemmings v. Munckley, ante, 1 vol. 304. (25) See per Sir W. Grant M. R. in Lloyd v. Branton, 3 Meriv. 118. Vide also Hemmings v. Munckley, antea, 1 vol. 303, 304. (24) As to Lord Thurlow's opinion in this case, vide in Andrew v. Wrigley, post 4 vol. 129. See also that decision, Hill v. Simpson, 7 Ves. 152, &c., and Macleod v. Drummond, 14 Ves. 355., and 17 Ves, 152, &c. 1789. [*490] [*] HILARY TERM. 29 Geo. 3. 1789. Money of the wife's, by settlement, to be lent to the husband on bond at 51. per cent. and no interest paid till he should decline trade, then the interest to be paid him for life, remainder to the wife, signees are en- [*491] STRATTON against HALE. (No Entry.) BILL by the assignees of Yeates, a bankrupt, to be decreed to be en titled to the interest of the dividends laid out by the trustees under the following settlement, during the life of the bankrupt. By indenture bearing date 23d and 24th of August 1772, real estates were settled upon certain trusts therein contained. Mary Osborne, the intended wife, being entitled to a sum of 40007, it was to be paid to three trustees, in trust to advance the same to Yeates, the intended husband, on bond, at 41. per cent., no interest to be paid till he declined trade, if he declined trade the interest to be paid to him for life, remainder to the wife for life, remainder to the issue of the marriage. The 4000l. was lent to Yeates, on bond payable six months after date. In 1782 a commission issued against Yeates, who with his wife and two children are still living, and the bankrupt has obtained his certificate. Two dividends have been paid to Blagden and Hale, and have been laid out. The plaintiffs insist upon the interest on the dividends laid out during the life of the bankrupt. Mr. Attorney General and Mr. Spranger for the plaintiffs. The only question is, whether the plaintiffs are entitled to the dividends during the life of the husband, or they are to accumulate for the wife and children. If this last, which is contended for by the answers, be complied with, it would create an inequality in the bankrupt laws.The defendants must contend [*] that the assignees are in all respects act ing in the place of the husband, which proposition we are not bound entirely to admit, as there are many cases where, though the husband having the money of the wife must make it good, it is not so where third persons are concerned. Ex parte Mitford, ante, vol. i. p. 398. Lord Chancellor. I think the only question is, whether the assignees could not have sold this annuity. There is no ground for applying this to the making good the fortune of the wife, unless the growing payments can now be considered as belonging to the husband. Osman v. Smith, MSS. (2) They are admitted to prove upon equitable grounds. The wife and children can have no claim until the death of the husband, though it is debitum in præsenti, it is solvendum in futuro, therefore they come in the class of creditors under the 7 Geo. 2. Mr. Solicitor General for the defendants. In equity, this interest belongs to the wife and children. If it stood independent of the bankruptcy, and the husband had covenanted in this manner, and a bill had " (1) Per Lord Eldon C. "There is an obvious distinction between a disposition to a man until he become bankrupt and then over, and an attempt to give him property. preventing his creditors obtaining any interest in it, though it is his. There is no doubt that property may be given to a man until he shall become bankrupt. It is "equally clear, that if property is given to a man for his life, the donor cannot take away the incidents of a life estate in such property." Vide in Brandon v. Robinson, 18 Ves. 432, 433. See that case, and Foley v. Burnell, antea, 1 vol. 274. with the notes. Et vide In re Murphy, 1 Scho. & Lefroy, 44. In re Gardiner, 2 Scho. & Lefroy, 228, &c. (2) Er parte Smith in the matter of Osman, Cooke, B. L., 223, (6th edit.) See also the cases, ibid. 255, &c. been been brought in this Court to compel the husband to pay the money, and he had paid but 2000. into court, professing his inability to pay the residue, he would not have been suffered to take the interest of the 2000l. till he had made good the other 2000l. The rule of equality only holds good with respect to creditors who stand in similar situations. Lord Chancellor. Suppose the man had turned out to be a bankrupt before the accumulation had made 20007., how could you have proved? Mr. Solicitor. I must have proved for the difference between the accumulation, and what remained of the 4000/. Lord Chancellor. - The great difficulty is, that, if I cannot determine that the growing instalments of this annuity were a new estate, I am very apprehensive that I cannot relieve you; for it is only as being the estate of the husband that you can get at it. [*] Mr. Romilly on the same side. By the deed it is intended to be a condition precedent, before he is entitled to receive the interest. The money is payable the moment he became a bankrupt, for certainly the bankruptcy was a discontinuance of the trade. An equity that resembles this, is when the assignees come into court for the wife's fortune, and the Court in that case always requires a settlement to be made upon her. Lord Chancellor. new trade? Is the husband now entitled by his beginning a Decree for the plaintiffs to have the interest of the money during the life of the bankrupt. ATTORNEY GENERAL against GREEN and University College, OXON. (Reg. Lib. 1788. A. fol. 215.) 1789. STRATTON against HALE. [*492] tates [before the mortmain act] to trustees for AN information, at the relation of Francis Walsh, upon the will of Devise of es the late Dr. Radcliffe, dated 13th September 1714, by which he devised his manor of Linton, and all other his lands and hereditaments in Yorkshire, unto his executors and their heirs, upon trust to pay there- the use of Uniout yearly, six hundred pounds to two persons to be chosen, by certain versity College, great officers of state and others, out of the University of Oxon, where to buy advowthey are masters of arts, and entered on the physic line, for their main- sons; the college having as tenance, &c. as travelling fellows, with several provisions for the same, many as allowed "and the yearly overplus of the rents and profits of his said Yorkshire by the mortestate, he willed to be paid for ever to University College, Oxon, for main act (2), the the buying of perpetual advowsons, for the members of the said college." devise shall be He then gave several annuities which he charged on his Buckinghamshire performed by estates; and then followed this clause, " and all my manors, lands, and he- exchange of reditaments in the counties of Bucks, Northamptonshire, Yorkshire, Surry, otherwise cy and elsewhere, and all my real and personal estate whatsoever charged pres: the heir with and subject to the aforesaid several annual payments, bequests, and at law, being legacies, I do give and devise unto (the executors) and to their heirs, disherited, where the gift executors, and administrators; and I will that all the residue and over- is plus of my real and personal estate, remaining after [*] the payment and performance of the several legacies and bequests aforesaid, should be by them paid and applied to such charitable uses as they in their discretion shall think best, but no part thereof to their own use or benefit; (1) See also Attorney General v. Minshull, 4 Ves. 11; and the approbation of the principal case by the M. R. ibid. p. 14.; but more especially the whole doctrine at length, as confirmed and elucidated by the elaborate judgment of Lord Eldon C. in Moggridge v. Thackwell, 7 Ves. 36. &c. (2) The restriction here alluded to was repealed in 1805, by the 45 Geo. 3. c. 101. but advowsons, or good at the time. (1) [*493] 1789. ATTORNEY GENERAL against GREEN. [#494] - but I will that all their charges and expences, and the salaries and wages of bailiffs and servants by them employed in the receipt of the rents, and for the managing of my said estate, shall be paid and reimbursed to them. And I will and desire, if it may be done by law, my Yorkshire estate should be conveyed and settled by my executors, on the master and fellows of University College for ever, in trust for the performance of the uses and trust herein before declared of and concerning the same estate." An information had been filed and a decree made in the year 1716, that the trustees should convey the Linton estate to the college, which had been done. The estate for a great length of time did not produce more than would pay the travelling physicians, but, at length, producing a surplus, the college, in obedience to the directions of the will, pur chased advowsons till they possessed as many as the statute of mortmais 9 Geo. 2. would allow, i. e. a number equivalent to that of a noiety of the fellows. (3) A surplus, still continuing to arise, the college (under the idea that they could not purchase further advowsons) laid out a part of the surplus in encreasing the value of the already purchased livings, and in adding to the income of the headship of the college. The present information was filed against Green, the now heir-at-law of Dr. Radcliffe, and the College, praying a proper application of the surplus profits of the estate not laid out in the purchase of advowsons under the directions of the will. The heir-at-law claimed the surplus as undevised, and, therefore a resulting trust for him. The college submitted, whether the devise being before the mortmain act, they might not purchase advowsons, though to a greater number than that of a moiety of their fellows, and, if not, insisted the surplus should be applied to other uses for the benefit of the college, as being the nearest possible application to the intent of the testator. The cause came on in Hilary term 1788. [*] Mr. Attorney General, (Arden,) Mr. Solicitor General, (Macdonald,) and Mr. Mitford for the relator. The question is, whether the operation of the stat. of mortmain, 9 Geo. 2., can defeat this devise to the college, by raising a claim either on the part of the heir-at-law or of the crown. The principal claim is that of the heir-at-law, as the crown would most probably be favourable in appointing the charity rost to the wish of the testator. As to this, the Court, upon finding a charity inap plicable to the intended uses, has never from thence raised a use for the heir-at-law. He was, in all events, intended to be disinherited. The Court, has, therefore, applied the fund which was intended for charitable purposes, to other charities as nearly as possible to those intended by the testator, as, by increasing the number of objects, where the property has exceeded the allotment to the number proposed. This has been the case with respect to alms-houses, where, upon the increase of the fund, the number of persons to be benefited has been enlarged. The first case is that of Thetford School, 8 Co. Rep. 130., where the revenues of a manor being given to the maintenance of a preacher, master, and usher, &c. of a free grammar school, and a distribution made by the testator himself, it was held that the increased revenue should be applied to the increase of their stipends, and, if any surplus remained, it should be expended in the maintenance of a greater number of poor. This case is followed by several others to the same purpose, in Duke's Charitable Uses, 78, &c. Where the charity cannot take place in the same form, it shall as nearly as possible, and not go to the heirs. Attorney General v. Guise, 2 Vern. 266. Aylet v. Dodd, 2 Atk. 238., where, there being no school-master was held not to exonerate the lands charged for the (3) See the preceding note. support |