three are living, the share of that one so dying will survive to the other three; but if a second dies, nothing will survive to the remainders but the second's original share, for the accruing share is as a new legacy, and there is no further survivorship." And, though in that case he decided that the accrued, as well as the original, shares went over, he proceeded upon the manifestation of intention which appeared from the particular provisions of the will. The words, " in case of the death of one of them unmarried and without issue, I give the share of him, her, or those so dying unto the survivors equally," are a direct and immediate gift to the persons, who, at the time of such death, answer the description of "survivors." The share, therefore, which, upon the death of the nephew, accrued to Sophia, was a vested interest in her; and there are no words, which, upon her *death, could carry it away from her personal representatives, and over to the other nephews and nieces. Mr. Wingfield and Mr. Wray, for the trustees : Budge v. Barker, † Worlidge v. Churchill, Ferguson v. Dunbar,§ and Wilmot v. Wilmot,|| were cited. THE MASTER OF THE ROLLS : Where distinct legacies are given with survivorship, the general rule is, that the clause of survivorship, unless extended by particular words, attaches only to the original shares and does not affect the accruing shares, which therefore become vested in the individuals who are the survivors for the time being. That rule is recognised by Lord HARDWICKE, in Pain v. Benson; and subsequent cases, though they have introduced exceptions, have not broken in upon it. The principal exception is, where the disposition is, not of separate legacies, but of one aggregate fund, which the testator meant should remain an aggregate fund, and should not be broken into fragments, if some of the persons, to whom interests in it were given, happened to die. Now, in this case, the testator is disposing of an aggregate fund; he speaks of the residue as one mass, and there is nothing § 3 Br. C. C. 469, in the note. + Ca. temp. Talb. 124. 13 Br. C. C. 465. 6 R. R. 196 (8 Ves. 10). BARKER v. LEA. [ *415 ] BARKER v. LEA. [ *416 ] in the will which leans towards the idea of separate subdivision. He directs his trustees to "employ the principal of all such monies in such way as they think most advantageous, and to apply the profits towards the maintenance of the children, until they respectively attain twenty-five;" plainly intimating, that, notwithstanding *intermediate deaths, the aggregate fund was to remain entire, till it were seen who were the persons entitled to it. If any child died under twenty-five, there was nothing which, correctly speaking, could be said to go from that child to the survivors; for, in that event, such child was not entitled to any interest in the fund. After attaining twenty-five, the child took a vested interest in his share, and such share could not afterwards survive. My opinion, therefore, is, that the survivors take the whole of the residue. The only objection to this construction is, that it gives no effect to the words, "In case of the death of any or either of them unmarried, and without issue, then I give or bequeath the part or share of him, her, or those, so dying without issue, unto the survivor and survivors of them, equally share and share alike, and to be paid to them respectively at the same time along with their own original shares." If the first part of the will had been ambiguously expressed, I should have thought that these words afforded a strong ground for contending that the original shares were vested interests, though not payable till twenty-five. But the words "on their, his, or her respectively attaining the age of twenty-five years," are annexed to the substance of the bequest. The gifts were contingent; and, in the events which have happened, nothing vested in Richard Bousfield Sims and Sophia Maria Bousfield. 1823. Dec. 3. [423] SUMNER v. POWELL. [FOR a report of this case below, taken from 2 Mer. 30, see 16 R. R. 136. A note of the judgment on this appeal will be found in 16 R. R. at p. 142.] COOPE v. TWYNAM. (Turn. & Russ. 426-429.) Where sureties are bound by different instruments for distinct portions of a debt due from the same principal, and the suretyship of each is a separate and distinct transaction, there is no right of contribution between them. THE bill in this cause, amongst other things, prayed, that a bond, which had been executed by the plaintiff and John Brice deceased, for securing to the defendant Twynam the sum of 4007. and interest payable on the 24th of December, 1814, might be delivered up to be cancelled, and for an injunction in the meantime to restrain proceedings at law upon the bond. The principal case stated by the bill in support of the relief prayed respecting the bond was, that in August, 1812, the plaintiff and William Rogers and William Purdue Smith respectively agreed to become security with the said John Brice for the payment to the defendant Twynam of such sum of money, not exceeding 1,200l., as Brice might be found indebted to Twynam upon the settlement of an account then depending between them; that it was agreed that such security of the plaintiff and Rogers and Smith respectively should be given by three several bonds payable, with interest, at different periods, that is to say, one bond from Brice, and Smith as his surety, for the payment of 4007., and interest, on the 24th of December, 1813; another bond from Brice, and the plaintiff as his surety, for the payment of 400l., and interest, on the 24th of December, 1814; and another bond from Brice, and Rogers as his surety, for the payment of 400l., and interest, on the 24th of December, 1815; that Brice and Twynam accordingly caused three several bonds to the effect aforesaid to be prepared, and that the plaintiff and Rogers respectively executed the bonds in which they were *respectively named as sureties, but that Smith declined to execute the bond in which he was named as surety, or to carry the agreement with Twynam into effect. The bill charged, that the execution of the bonds was one entire agreement, and that as Smith did not execute the bond in which he was named as surety, the plaintiff was not bound by the bond which he had executed; and it further charged, that the bond executed by the TWYNAM. plaintiff was executed by him upon the faith and expectation COOPE 0. [ *428 ] that Smith would execute his bond, and that Brice would thereby be relieved from the payment of the 1,200l. to Twynam until the bonds should respectively become payable. The defendant Twynam, by his answer, said that in August, 1812, Brice was indebted to him in the sum of 1,364l. or thereabouts, upon the balance of an account which was then depending between them, and that being pressed for payment of the balance, Brice proposed to give security for 1,2001. part thereof, and offered as such security the three several bonds mentioned in the bill. He further said, he believed that the plaintiff and Rogers, each of them alone and separately from the other, agreed to become bound with Brice for the payment of 400l. to him, the defendant, without any reference to the settlement of accounts between him and Brice, and without the plaintiff and Rogers becoming sureties or liable for the default of each other, or of Smith; and he said he believed, that for the purpose of giving the aforesaid security, the plaintiff, for himself alone, and without any privity or connection with Rogers or Smith, agreed to join Brice in a bond for the payment of 400l. and interest on the 24th of December, 1814; and Rogers, in like manner, agreed to join Brice in a bond for the payment of 400l. and interest upon the 24th of December, 1815; but he said he did not *believe that Smith ever agreed to join Brice in a bond for the payment of 400l. and interest on the 24th of December, 1813, although, at the time when the other bonds were executed, Brice had induced him to believe that Smith would execute such a bond. He admitted that the three bonds were prepared by his solicitor, (who, he said, acted on that occasion as the solicitor of Brice) and that the plaintiff and Rogers respectively joined with Brice in the bonds in which they were named as co-obligors with him; and that Smith declined on his part to execute the bond in which he was named as co-obligor with Brice, and he insisted that, notwithstanding Smith did not execute that bond, the plaintiff was bound by the bond which had been executed by him. He denied that the execution of the bonds was one entire agreement, and said that he did not believe that the plaintiff executed the bond in which he had joined, upon the faith and expectation that Smith would execute the other bond, and that Brice would thereby be relieved from the payment of the 1,2001. until the bonds should respectively become payable. Mr. Hart and Mr. Koe moved for the injunction upon the merits confessed by the answer. Mr. Sugden and Mr. Romilly for the defendant, relied upon the fact of the sureties having entered into several and distinct obligations as an answer to the motion. THE LORD CHANCELLOR: These cases of sureties depend upon nice distinctions in point of fact; Dering v. Lord Winchelsea ↑ settled, that if three persons became sureties for 12,000l., each in a separate bond for 4,000l., there would be a right of contribution between them. That case was much doubted in Westminster Hall at the time it was decided; but I believe, upon consideration, it will be found to be quite right. In that case it was said by the sureties, we will each give a bond for 4,000l., but beyond that we will not be liable; it was held however that there was a liability between them as co-sureties. The present case depends upon the question, whether this was really a separate and distinct transaction, or the same transaction split into different parts. If the case of Dering v. Lord Winchelsea be right, and there was an agreement that A., B., and C. should become liable for 1,2001., each in a bond for 400l., there would be a right of contribution between them; and then it would be a question whether, if the bonds were not given by all, they would be obligatory upon any? That would depend upon nice distinctions. It might be waived by subsequent transactions. The LORD CHANCELLOR said that he considered the bonds in this case as distinct obligations, and that it was impossible to apply the doctrine in Dering v. Lord Winchelsea. † 1 R. R. 41 (1 Cox, 318). Injunction refused. COOPE V. TWYNAM. [ 429] Dec. 3. |