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REPORTS

OP

CASES

ARGUED AND DETERMINED

IN

THE ROLLS COURT.

.

1855. MILLS v. BROWN.

April 20. THE NHE testator bequeathed to his nephew all monies Where, in a that he might be possessed of in consols at the residuary gift,

specific protime of his death. He then proceeded as follows : perty is be“And as to all such parts of my estate and effects as

queathed, the

bequest may shall not consist of ready money or money in the funds, nevertheless be

specific as to I direct my executors to sell and dispose thereof, and that particular to stand possessed of the monies to arise thereby, and property

though gewith such ready money, and the money I may have in neral as to the the Long Annuities,upon trust, as to two-fourth parts,

A testator for the Plaintiffs, and the other two-fourths for other bequeathed his

consols to A., persons.

and directed

his executors The

to sell all such

rest.

parts of his

estate and effects as should not consist of ready money or money in the funds, and “ to stand possessed of the monies to arise thereby, with such ready money and the money he might have in the Long Annuities, upon trust" for A., B. and C. Held, that the Long Annuities were specifically bequeathed, and not liable to contribute towards the payment of general legacies. VOL. XXI.

B

1855.

Mills

v. Brown.

The testator died possessed (inter alia) of 401. Long Annuities, and the rest of the property, other than the Long Annuities, being insufficient to pay the debts, the executor had paid a pecuniary legacy of 1001. out of the produce of the Long Annuities.

The question was, whether the Long Annuities had been specifically bequeathed or formed part of the testator's residuary estate, so as to be liable to the payment of the pecuniary legacies.

Mr. Beales in the absence of Mr. R. Palmer), for the Plaintiffs, contended, that the gift of the Long Annuities was as specific as the gift of the consols, and that, though liable to payment of the debts, they could not be charged with the pecuniary legacy. He relied upon the case of Bethune v. Kennedy (2), as exactly in

a point. There the testatrix bequeathed as follows:“ The residue of my property, all I do or may possess in the funds, copy or lease hold estates,” to my sisters for their lives. The residuary estate consisted of 1501. Long Annuities, and it was held, that as the gift of the Jeaseholds was specific, so was the bequest of the property in the funds.

Sir C. C. Pepys says (6):-" Now, as to the copyhold or leasehold estates, it is not disputed that the gift is specific. If so, why should it not also be specific with respect to the funds? The intention, it is reasonable and natural to presume, must have been the same with respect to both descriptions of property; and there can be no doubt that a bequest of all that a testator may possess in the funds would be a specific bequest of

all

(a) 1 Myl. 8. Cr. 114.

(b) 1 Myl. 8. Cr. p. 116.

3

'1855.

all his funded property, the rule being that the legacy is not the less specific for being general.

Mills

v. BROWN.

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The true test by which to try whether a bequest is or is not specific, is to inquire what would be the result if there had been pecuniary legacies with a deficient fund, or a necessity for a sale for payment of debts, to inquire whether or not, in such a case, the bequest would have been protected in a competition with the claims of pecuniary legatees. A party claiming under a gift of all the property that a testator possessed of a specified kind, would not, I apprehend, be bound to contribute.”

In this case the gift is of “all the property I may have in the Long Annuities,” which, on the principle established in Bethune v. Kennedy, is clearly specific. He cited also D'Aglie v. Fryer (a); Stephenson v. Dowson (b); Hayes v. Hayes (c).

.

the property

Mr. Berkeley, for the Defendant. In all the cases cited, as well as in Bethune v. Kennedy, the word

specific" is used by the Judges not in the ordinary sense of a “specific bequest,” but as denoting that

was to be enjoyed specifically or in specie a tenant for life. It is so used by the Master of the Rolls iu Pickering v. Pickering (d); and in the same case on appeal (e), Lord Cottenham says, “as the Master of the Rolls appears to have observed, the word 'specific

,” when used in speaking of cases of this sort, is not to be taken as used in its strictest sense, but as implying a question whether, upon the whole, the testator intended, that the property should be enjoyed in specie.”

The

(a) 12 Sim. 1. (6) 3 Beav. 342. (c) 1 Keen, 97.

(d) 2 Beav. 57.
(e) 4 Myl. & Cr. 299.

1855.

Mills

Brows.

The bequest is, therefore, not specific, properly so called, it is an enumeration of part of the residue. Suppose the testator bad bought the Long Annuities after the date of the will, would the bequest then be specific ? Clearly not, but they would fall into the residue, and the gift altogether would be considered a mere residuary bequest. He cited Pickup v. Atkinson (a); Taylor v. Taylor (b).

Mr. Beales was not heard in reply.

The Master of the Rolls.

I am of opinion that this is a specific bequest of the Long Annuities. The cases relating to conversion of perishable property are different, and do not apply to this. The question in those cases was, whether the persons who were to take the property successively, were or were not to enjoy it in the character in which it was found, and it was held that they were. Here, if the Long Annuities had been given to persons in succession, I should have thought that the bequest was specific in that sense. I am of opinion that a specific bequest may be contained in a gift of a residue, and, in fact, it was so held in Bethune v. Kennedy. I think, therefore, that payments out of the Long Annuities to pecuniary legatees cannot be allowed; but the debts are payable thereout if there are no other assets to meet them.

(a) 4 Hare, 628.

(6) 6 Sim. 246.

1855.

JAMESON v. STEIN.

July 14. THE THE testator John Stein was the owner of an estate Where a percalled his Wraxall estate, and was indebted to his son seeks to

make a third sister in the sum of 5,0001.

party make good represen

tations made By indenture, dated 3rd of September, 1844, and by him on his made between John Stein, of the first part, his only must esta

marriage, he daughter, Monique Theresa Stein, of the second part, clearly, first,

blish, and that and two trustees of the third part, after reciting that, that sufficient in consideration of an arrangement entered into between representations

were made; John Stein and his daughter, concerning the property and secondly,

that the marof her mother (then deceased), and of the release of her riage took interest therein, John Stein had agreed to secure to place on the

faith of them. his daughter an annuity for life, and to settle the A husband Wraxall estate (subject to the payment thereout of and wife al

leged, that, on 5,0001. and the annuity) upon his daughter and her their marriage,

the wife's issue, and reciting the debt of 5,0001. due from him to father stated his sister, and that he was desirous of charging it upon in a letter,

which, howthe hereditaments thereby conveyed, it was witnessed, ever, they, that John Stein granted the annuity to his daughter, been destroyed,

stated had and conveyed the Wraxall estate to his trustees in fee, “that he could

do no more for upon trust, in effect, to raise the 5,0001. and the annuity, her than he

and, had done, and

that he had settled his W. estate upon her.” He had, in fact, previously settled that estate on her, but subject to a prior charge of 5,000l. They sought to have the representation made good, by payment of the 5,0001. out of the father's estate. The Court doubted whether the principle applied to such a representation, and also whether the marriage took place on the faith of it, and refused relief.

Whether the notice of the existence of the settlement in this case was not notice of its contents, quare.

T'he owner of an estate voluntarily charged it with his own simple contract debt, and, by the same deed, settled the estate, subject thereto, on himself for life, with remainder to his daughter. He afterwards paid off the debt, but declared that the charge should continue for the benefit of his personal estate. After his death, held, that the charge still subsisted and must be raised and paid.

а

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