Charlton v. Wright.

By the fourth sect. of 5 Geo. 2, c. 7, (for the more easy recovery of debts in his majesty's plantations and colonics in America,) it is enacted that the houses, lands, negroes, and other hereditaments and real estates, situate or being within any of the said plantations, belonging to any person indebted, shall be liable to and chargeable with all just debts, duties and demands, of what nature or kind soever, owing by any such person to his majesty, or any of his subjects, and shall and may be assets for the satisfaction thereof, in like manner as real estates are, by the law of England, liable to the satisfaction of debts due by bond or other specialty, and shall be subject to the like remedies, proceedings and process, in any court of law or equity in any of the said plantations, respectively, for seizing, extending, selling or disposing of any such houses, lands, negroes and other hereditaments and real estates, towards the satisfaction of such debts, duties and demands, and in like manner as personal estates in any of the said plantations respectively are seized, extended, sold or disposed of for the satisfaction of debts.

*That enactment, and the construction put upon it by [*275] Sir T. Plumer in Thomson v. Grant,(a) were relied upon

by

Mr. Knight Bruce and Mr. Berkeley, who contended that the estate was made legal assets by the Act of Parliament, and that it was not in the power of the testator to make it equitable

assets.

Mr. Jacob, Mr. Blunt and Mr. Cole were the other counsel in the cause.

The Vice-Chancellor said that, as the Act of Geo. 2. had not taken away the power, which testators had before the passing of that Act, to dispose of their estates so as to make them equitable assets, that power still remained; and, consequently, the estate in question was equitable assets.

(a) 1 Russ. 540, note.

Elliott v. Elliott.

[*276]

1841: 16th July.

*ELLIOTT v. ELLIOTT.

Will-Construction.-Remoteness.

Testator gave the residue of his personal estate unto and among all and every the children, sons and daughters of his daughter Elizabeth, in equal shares and proportions, as and when they should attain their respective ages of twenty-two years. Held, that the children of the testator's daughter living at the testator's death, were the only objects of the bequest; and, consequently, that it was not void for remoteness.

THE testator in this cause gave a legacy of 1,000l. to his daughter Elizabeth Elliott, and all other his personal estate and effects unto and among all and every the children, sons and daughters, of his said daughter, in equal shares and proportions, as and when they should attain their respective ages of twentytwo years; and he directed the interest on their respective shares to be accumulated, and to be paid to them as and when the principal should be payable.

Mrs. Elliott had four children living at the testator's death, and one born four years afterwards.

Mr. J. H. Palmer, for the plaintiff Mrs. Elliott, who was the testator's sole next of kin, said that the residue was given to all the children of Mrs. Elliott, as a class; and, as their shares were not to vest in them until they attained the age of twenty-two, the gift was wholly void for remoteness. Leake v. Robinson,(a) Vawdry v. Geddes.(b)

Mr. Knight Bruce and Mr. Hare, for the children of Mrs. Elliott, said that, where a bequest was made to A. for life, and, after A.'s death, to his children, the testator was taken to mean all the children who might come into existence during A.'s life;

(a) 2 Mer. 363.

(b) 1 Buss & Myl 203. See Comport v. Austin, ante, 218.

Elliott v. Elliott.

but, where no prior life interest was given, the testator must be supposed to mean all the children who might [*277] be in existence at his death. Viner v. Francis,(a) and Davidson v. Dallas.(b)

Mr. W. K. Ellis for the executor.

THE VICE-CHANCELLOR :-I see no objection, in principle, to holding that, by the description: "all and every the children, sons and daughters, of my daughter Elizabeth Elliott," the testator meant those children who was then living or might be living at his death; and then there is no objection to the gift.

When a testator speaks of the children of his daughter, the reasonable construction is, that he means such children as his daughter has at his death, at which time the will speaks.[1]

Declare that the gift in question is a gift to such of the chil dren of the testator's daughter as were living at the testator's death.

(a) 2 Cox, 190.

(b) 14 Ves. 576.

[1] Where a residuary gift was to trustees, with direction to apply such part of the interest as they might deem necessary in the maintenance of all and every of the testator's grandchildren, children of the testator's two sons, until they severally attained the age of 21, and to accumulate the surplus; and, when and as each of such grandchildren should attain the age of 21 years, to pay to each of them 2000; and, as soon as all and every of the said grandchildren should have attained the age of 21 years, to pay or divide the trust fund unto and amongst all and every of his said grandchildren: it was held, to be a gift for the benefit of all the children of the testator's two sons, born or to be born: not confined to children living at the death of the testator, and not distributable upon the youngest grandchild for the time being attaining 21; but that, on attaining 21, the grandchildren were entitled to the interest on their presumptive share, until another grandchild should be born. Mainwaring v. Beevor, 8 Hare, 44.

Walters v. Jackson.

[*278]

*WALTERS v. JACKSON.[1]

1841: 16th and 19th July.

Infant heir.-Decree.

In a decree for raising legacies against an infant heir of a devisee whose estate was charged with the legacies, a sale to raise the requisite amount will be directed, but the infant will not then be declared a trustee, so as to enable the court to order a conveyance under the 6th and 18th sections of 1 Will. 4, c. 60.

IN this case a bill was filed by legatees whose legacies were charged on land of which the infant heir of a devisee under the will was seised. The object of the bill was to have the legacies (on a deficiency of personal estate) raised by sale of a competent portion of the land.

All the accounts having been taken, and the amount to be raised out of the infant's estate having been ascertained, the cause come on for further directions; when, a sale of a part of the infant's estate being necessary, a question arose as to the form of the order to be pronounced.

Mr. G. Richards and Mr. Renshaw, for the plaintiffs, contended that it was proper, under 1 Will 4, c. 60, ss. 6 & 18, (the 1 W. 4, c. 47, not applying to the case,) that the infant should at once be declared to be a trustee, for the legatees, to the extent of the sum to be raised for them, and that a sale and conveyance should be ordered. (a)

Mr. Lee, for the infant, mentioned a case of Godfrey v. in which Lord Langdale, M. R., directed a sale, and declared that, upon the sale taking place, the infant would become a trustee for the purchaser of the estate.

(a) See Broom v. Broom, 3 M. & K. 443.

[1] Ex relatione.

Plunkett v. Lewis.

*The Vice-Chancellor refused then to make any further [*297] order than for a sale of a competent portion of the pro

perty; and said that the direction for sale, would be a good ground for the declaration which might be made on a petition to be presented for a conveyance after the sale should have taken place. He mentioned a M.S. case, in 1836, in which, under similar circumstances, he had made the like order.

1841: 22d July.

PLUNKETT v. LEWIS.

Practice.-Exceptions.--Report.

Plaintiff served defendant with an order confirming a report nisi: and, on the eighth day after, exclusive of the day of service, he applied for the registrar's certificate of no cause shown, but which the registrar declined to give without the production of counsel's brief on a motion to make the order absolute, which (it was said) could not be made until the then next seal. On the ninth day, the defendant filed exceptions to the report. Held that the exceptions were regularly filed.

MOTION, by plaintiff, that exceptions filed, on behalf of the defendant, to the Master's report dated the 16th of June, 1841, might be taken off the file for irregularity.

The affidavit in support of the motion, stated that the order confirming the report nisi, was obtained and served on the 23d of June, 1841; that the deponent applied, at the report-office, on the 1st of July, being the eighth day after the order nisi was served exclusive of the 23d of June, for the registrar's certificate of no cause shown; but which was declined without the production of counsel's brief on a motion to make the order absolute, which (it was said) could not be made until the then next seal that the deponent had been informed and believed that the order to set down the exceptions, which was dated the 1st of July, 1841, was not served upon the plaintiff's clerk

in court, until the second of *that month; in which [*280]