1823. Dec. 8. Rolls Court. [ *431 ] HORNER v. SWANN.† (Turn. & Russ. 430–432.) A tenant for life, with a power of appointing the property by will to all or any of the testator's children, may release or extinguish the power. WILLIAM HORNER being seised of the premises in question, subject to a joint power of appointment by him and his father, which was not exercised, devised to Mansfield and Holloway, and their heirs, all his real and personal estate, to hold the same unto the use of them, their heirs, &c. upon trust "to permit his wife, Elizabeth Horner, to use the same for her use, and for the purpose of maintaining his children until they should attain the age of twenty-one, and during her life in case she should so long continue his widow; and after her decease, then for such or all of his children and their respective lawful issue, and for such estates," &c. as his wife by her last will, or by any writing purporting to be her will, &c. should give, devise, and bequeath the same; and in default of such will, in trust for all and every his children living at his decease, or born in due time afterwards, and their heirs, &c. respectively, share and share alike; but if any of them died under twenty-one, without leaving lawful issue, then in trust, as to the share or shares of such child or children, for the survivors or survivor, and their respective heirs, &c. share and share alike. He subsequently directed, that, in case his wife should marry again, the trustees should convey and assign to each of his children successively, upon their respectively attaining the age of twenty-one, so much of the real and personal property as would amount to his or her equal share thereof; and in case any of his children should die after his wife should marry again, and leave lawful issue, he gave to the use of the said issue, their heirs, &c. *the same proportion of his real and personal property as their father or mother would have been entitled to, in case he or she had lived to attain twenty-one; but in case any of his children should die, after his wife should marry again, without leaving lawful issue, he directed that the share of such child should go to the survivor. + In re Radcliffe, '92, 1 Ch. 227, 61 L. J. Ch. 186; In re Somes, '96, 1 Ch. 250. v. SWANN.. The testator left a widow and four children, all of whom HORNER attained twenty-one. One of them died subsequently, leaving her eldest brother her heir-at-law. The widow and the three surviving children contracted to sell the devised estate; and the bill was filed by them for the specific performance of the contract. The purchaser, by his answer, submitted, that the plaintiffs could not make a good title by reason of the widow's power of appointing by will, and of the contingent interests given to the issue of the children. Mr. Sugden and Mr. Sidebottom, for the plaintiffs: The question is whether the wife's power can be released or extinguished. It is not a power simply collateral, but is a power in gross, and is therefore capable of being destroyed by the donee; and the circumstance, that it is to be exercised in favour of a limited class of objects, namely, the children or their issue, does not alter its nature. The point, though once regarded as liable to doubt, must now be considered as settled; for it was expressly decided in Smith v. Death.† Mr. Cooper, contrà : It has hitherto been considered a very doubtful question, [ *432 ] whether such a power, as is here given to the *widow, can be destroyed. 'Lawyers of great eminence," says a text writer, "have been of opinion, that a power to a tenant for life, to appoint the estate among his children, is a mere right to nominate one or more of a certain number of objects to take the estate; and that, consequently, it is merely a power of selection, and cannot be barred by fine." In Jesson v. Wright, Lord REDESDALE says, "How can a man, having a power for the benefit of children, destroy it?" Tomlinson v. Dightons leans towards the same conclusion. The solitary decision in Smith v. Death cannot be considered as determining the point so conclusively that the Court will compel a purchaser to accept a title like this. HORNER V. SWANN. THE MASTER OF THE ROLLS: The VICE-CHANCELLOR has given a solemn opinion upon the point; and his decision has been acquiesced in. I shall therefore follow it. As to the second point raised by the answer, it was admitted, that, upon the true construction of the will, none of the limitations over could take effect, when all the children had attained twenty-one. Decree for specific performance.† 1823.. Dec. 10. Rolls Court. [ 433 ] COURTOY v. VINCENT. (Turn. & Russ. 433-434.) A testator directs his executors and trustees to pay certain annuities and legacies, "clear of the property tax, and all expenses attending the same; the legacy duty ought to be paid by the executors out of the assets of the testator, and the annuitants and legatees are entitled to receive the full amount of their respective legacies and annuities, without any deduction in respect of legacy duty. THE testator, by his will dated the 28th of May, 1814, gave various annuities and legacies; and he requested "that his executors and trustees would pay all such annuities and legacies as aforesaid, clear of property tax and all expenses whatsoever attending the same." A petition was now presented, praying that the amount of certain sums, which the executors had retained out of the legacies and annuities, and applied in discharge of the legacy duty, might be paid to the annuitants and legatees. Mr. Horne and Mr. Knight, for the petition, cited Barksdale v. Gilliatt to shew, that the executors ought to pay the legacy duty, and that the annuitants and legatees were entitled to receive the full amount of the benefits given them by the will, without any deduction in respect of legacy duty. † Reg. Lib. 1823, A. 466. 18 R. R. 139 (1 Swanst. 562). Mr. Pemberton, contrà : The words "clear of the property tax" cannot be construed to mean "clear of the legacy duty;" the property tax did not arise till the legacy duty was paid. The words "clear of all expenses attending the same may mean either clear of all expense attending the property tax, or clear of all expense attending the legacies and annuities; but on neither construction can *the payment of the legacy duty be considered as an expense within the meaning of that phrase. The payment of the legacy duty is a burden thrown on the executor, and the Act of Parliament directs him to retain the amount out of the bequest. The MASTER OF THE ROLLS was of opinion that the intention of the testator was to give the legacies and annuities free from legacy duty, and made an order accordingly.-Reg. Lib. 1823, A. 117, 118. COURTOY v. VINCENT. [ *434] TOMLIN v. BECK.† A person who is permitted by an executor to possess himself of part of the assets of a testator, and who, after the executor's death, and when there is no legal personal representative either of the testator or of the executor, retains the assets, and acts in the execution of the trusts of the will, is not executor de son tort to the original testator. JOHN SOUTHWELL, by his last will, gave some small annuities, and bequeathed the residue of his property to his grandchildren. He died in 1763, leaving nine grandchildren; and his will was shortly afterwards proved by John Court and John Beck, two of the persons whom he had named executors. In 1799, the last of the annuities given by the will expired. John Beck, the survivor of the two executors, died, in 1800, intestate; and no letters of administration were taken out, either to him, or to Southwell. Before the expiration of the last of the annuities in 1799, Beck, the executor, being desirous (as the answer expressed it) to give up the trust, paid over the balance of Southwell's assets, then in his hands, to his own son, the defendant Beck, who from that time acted in the execution of the testator's will, making † Cottle v. Aldrich, 16 R. R. 433 (4 M. & S. 175).' 1823. Dec. 11. Rolls Court. [438] TOMLIN v. BECK. [*439 ] payments to, and settling accounts with, the persons beneficially entitled. The bill was filed in 1820 by Tomlin, one of Southwell's grandchildren, against Beck the son, and against the personal representative of Court, in order to compel them to account for the assets of Southwell possessed by either of the executors, or, since their decease, by either of the defendants. It appeared from passages of the answer which were read, that, in 1810, the clear balance, divisible among the legatees, was 391. 5s. Of this sum eight equal shares were paid to the persons respectively entitled, who thereupon executed a release of all their demands *in respect of their testator's estate. The ninth share, amounting to 4l. 7s. 2d., was left and still remained in the hands of the defendant's attorney, for the purpose of being paid over to Tomlin, whenever he chose to apply for it. Mr. Wakefield, for the plaintiff, contended, that Beck the son, by having possession of the assets of Southwell in specie, both during the life and after the death of Beck the father, and by having affected to act in the execution of the trusts of the testator's will, and to do all which his personal representative ought to have done, and that too at a time when there was nobody filling the character of legal personal representative, had made himself executor de son tort to Southwell, and in that capacity was liable to render the account which the plaintiff sought; or if he was not executor de son tort, he had, at least, placed himself in the situation of a trustee, and, as such, ought to account. It was not attempted to make out any case against Court's personal representative. Mr. Horne and Mr. Duckworth, for the defendant Beck. THE MASTER OF THE ROLLS: This plaintiff can have no right to the relief prayed, unless the defendant is clothed with that character of executor de son tort, in respect of which the account is sought. Now I apprehend |