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Analytical Digest of Cases : Courts of Equity. ANALYTICAL DIGEST OF CASES, interest in the subsequent accumulations ac

cruing during the minorities of the other chil-
dren. Routh v. Hutchinson, 8 Beav. 581.

See Remoteness.
Courts of Equity.


See Foreign Funds.
[The plan is here pursued of giving a separate
section of the Digest, comprehending all the

Support of herself and child.—A testator bedecisions on one important subject, instead of of herself and his daughter, subject to the fol

queathed a house, &c., to his wife, for the use interspersing them generally amongst other lowing trust:-“That his wife and daughter subjects. The cases on the Law of Wills are should live together, and that his wife should sufficiently numerous to constitute a section of take charge and see to the maintenance and themselves, in like manner as we have arranged with the instructions of H.C." He also gave

support of his daughter during her minority, the Law of Costz, Attorneys, Evidence, Arbi- 1001. to his wife, in addition to the house, &c., tration, &c. The Law of Railways and other for the further support of herself and his Joint Stock Companies ;-the Poor Law and daughter. Held, that the widow took absoMagistrates’Cases;—and other important heads lutely, subject to a trust for the maintenance

and support of the daughter during her mi. of Law and Practice, may also be separated nority, and ivhich did not cease upon her marfrom the other decisions of the Superior Courts. riage under age. Conolly v. Farrell, 8 Beay. The points thus collected will serve as supple- 347. ments to the Treatises on the subjects to which Case cited in the judgment: Pride v. Fooks, 2

Bear. 430, they relate, and furnish: a very convenient compendium both for the student and the See Lapsed Bequest; Residuary Bequest. practitioner.]


Second husband.-Under limitations in a will Absolute interest cut down to a life interest held, on the context, that the children of her

to a married


her husband and children, for a limited purpose, held to remain absolute upon failure of that purpose.

second marriage took nothing. A testator bequeathed his residuary estate in if she survived her husband and children, to

Bequest to a married daughter for life, and terms which, in the first instance, gave lute interest to his children, but he directed transfer it to her, but if she left children, then half only of his daughters' shares should be mainder to her children, with a gift over, in the

to her husband, Captain W., for life, with retransferred to his daughters at 21, or marriage, event of her dying in the lifetime of her husband and the other settled on thein for life, with re

without leaving children, She died, leaving mainder to their children. There were gifts children by Captain W., and by a second mar, over in events which did not happen. A daughter attained 21, and died without having

riage. Field, that the latter were not entitled

Stopford v. been married. He'd, that as to her moiety di to, participate in the fund. rected to be settled, she had an absolute in

Chaworth, 8 Beav. 331. terest, subject to the rights of her children, and

CUMULATIVE LEGACIES. there being none, her representatives were en- Substitutional legacies.—Testator, by his will, titled to that moiety. Winckworth v. Win-k- gave to his son 201., to be paid within one month worth, 8 Beav. 576.

after his death, and 5001. to his executors, in

trust to pay 501. to his son every six months, ACCUMULATION.

the first payment to be made 6 months after his A testator bequeathed the residue to trustees, death; and to such female servants who might for the maintenance of his five children during be in his service at his decease 5l. a piece for. their respective minorities, and he directed mourning. By a codicil he gave 2,0001. to them to accumulate the surplus income," for Bridget Bibby, in consideration of her faithful the benefit of the residuary legatees, and form services, and directed that sum to be paid to part of the residue of his estate," and subject her within six months after his deccase. By a as aforesaid, on trust to pay, &c., the residue subsequent. testamentary instrument, which to his five children, at 25, in certain shares, purported to be his last will, but which he left but their sliares to be vested at 21, &c.; and unfinished, he gave his son, to be paid at that age they were entitled to receive all the within ten vays after his death; and to Bridget interest upon what should then appear to be Bibby, if she should be in his service at his detheir “respective shares." He authorised ad- cease, 5001, to be paid at the end of nine vancements to be made to his sons, to be de- months after his decease. B. Bibby was the ducted out of their shares before any "final only female servant who was in the teslator's division.' One child having attained her service at his decease. proper age, received her share of the then Held, that the legacies of 191, 198. and 5001. aggregate fund. “ Held, that she retained no were substitutions for the legacies of - 201., 51.,



Analytical Digest of Cases : Courts of Equity.

57 and 2,0001., previously given to the son and l'es. 168 ; Dummer v, Pitcher. 2 Myl. & K. B. Bibby respectively. Kidd y. North, 14 Siin. 262; Brodie v. Barry, 2 Ves & Bea. 127, 139. 463 Cases cited in the judgment: Hemming v. Gur. rey, 2 Sim. & Stu, 311; 1 Bligh, N. S. 497 ;

Testator devised lands to his son d. T. for Attorney-General v. Harley. | Madd. 263; life, and after the decease of A. T., to his first Jackson v. Jackson, 2 Cox, 35.

son lawfully issuing, and for default of such

first issue, to the use of the second, third, and DISTRIBUTIONS, STATUTE OF.

every other son, and the heirs of his or their At what time persons entitled. -- Testator di- bodies, the elder to be always preferred before rected his trustees to pay the dividends of cer- the younger of such sons and heirs of his body; tain stock to his wife for life, and, after her de- and for default of such issue, then to the use of cease, to transfer the capital to such person or all and every the daughters of A. T., and the persons, in such shares and proportions, at heirs of the body of such daughter and such times, and in such manner, as might be daughters, with remainders over. expressed in any codicil or codicils to his will; Held, that the first son of A. T. took, neither and, in default of such direction or appointment, by construction nor by implication, an estate to transfer and make over the same unto such tail, but a life estate only. Barnacle v. Nightperson or persons as would, under and by ingale, 14 Sim. 450. virtue of the Statutes of Distribution of Intestates' Estates, have been entitled to his personal estate in case he had died intestate. The

See Executor. testator died without making any appointment

EXECUTOR. by codicil, leaving his wife surviving him. The wife afterwards died: Held, that the fund be

Evidence. A testator appointed A. and B. longed to those who, at the testator's death, his executors, and he gave them all his personal and not to those who, at the widow's death, estate, that is to say, for you to pay all as would have been entitled to his personal estate follows." He then gave several legacies, and

in case he had died intestate; consequently, afterwards said, --“I wish all this to be paid that the widow was entitled to a distributive in six months after my death.” Held, under the share of the fund. But, semble, that there was

1 W. 4, c. 40, that the executors did not take no joint tenancy between the widow and the the unexhausted residue beneficially, but in next of kin of the testator living at his death ;

trust for the next of kin. and, therefore, that the widow, baving survived

The 1 W. 4, c: 40, requires, that the intention those next of kin, was not entitled to take the that the executor should take beneficially should whole fand by survivorship. Jenkins v. Gower, appear by the will. 2 Coll. 537.

Parol evidence is now inadmissible to show

that the testator intended his executors to take Cases cited in the judgmen!: Clapton : Bul. the residue beneficially. Love v. Gaze, 8 Beav.

mer, 10 Sim, 440, Garrick v. Lord Camden,
14 Ves, 372.

Heir at law and residuary legatee.-- Heritable

Annuity.-Discretion of Trusters. -Tize tes. bond. - The testator, who was a Scotchman tator gave to the executors and trustees apdomiciled in England, devised all the rest and pointed by his will so much of his personal residue of his real, personal, and mixed estates estate as would produce a certain annuity, upon and effects, whatsoever and wheresoever, which trust to select, appropriate, and set apart the be might be seised or possessed of or entitled same, in their uncontrolled discretion, and pay to at the time of his decease, upon trust for his the interest, dividends, and annual produce children, in certain shares. One of the children thereof for her life or widowhood; and if the being the heir at law of the testator, became annual produce of the personal estate and entitled, according to the law of Scotland, to a effects so set apart and appropriated should heritable bond made by a debtor of the testator from any cause be increased or reduced, his after the date of the will, and given as a security widow was to receive such increased or reduced for a debt which was owing to him at the time interest, dividends, and annual produce; and the will was made: Held, ist, that the heir was from and after her decease or second marriage, not a trustee of the heritable bond for the ex. the testator directed that the personal estate ecutors of the testator; and secondly, that he and effects so appropriated or set apart shall was not bound to elect between the heritable fall into his residuary estate. And the testator bond and the benefits to vbich he was entitled empowered his trustees, at their own discretion, under the will. Allen v. Anderson, 5 Hare, 163. to permit the whole or any part of his personal

estate to remain on the securities on which the Cases ciled in the judgment: 1st point, Drum. same might happen to be at his deccase, or

mond v. Drummond, cited in Brodio v. Barry, otherwise to convert and alter the same at their
2 l'es. & Bea. 127, 132; Johnstone v. Baker,
4 Madd. 474, n.; Duchess of Buccleugh v.

own absolute discretion. The testator's per: Hoare, 4 Madd. 407; Jerninghanı v. llerbert, sonal estate was invested in foreign funds. 4 Russ. 368. 2nd point, Churchman v. Ire: The trustees did not exercise their discretion land, i Russ. & Myl. 250 ; Pole v. Lord as to the appropriation of the investments 'to Somers, 6 Ves. 309, 319; Judd v. Pralt, 13 answer the annuity, but submitted to act as






Analytical Digest of Cases: Courts of Equity. the court should direct: Held, that the court

JOINT TEXANCY. would not direct any appropriation of the Testator bequeathed his residuary personal foreign funds to answer the annuity to the estate to trustees, in trust to pay the interest to widow, but would direct the annuity to be and amongst all the children of his brother, for raised by the purchase of consols, referring it their respective lives, and after their deaths, as to the Master to inquire what part of the exist. they should respectively die. he gave the prining investments it would be proper for that cipal of their respective shares to their respective purpose to call in, having regard to the invest children; and if any of his brother's children ments of other parties under the will. Pren- should die without leaving any child, he gave dergast v. Lushington, 5 Hare, 171,

their shares to their surviving brothers and

sisters for life, and afterwards to their respecSee Election ; Revocation, Conditional.

tive children, in the same manner as their original shares were given. One child of the testa

tor's brother had three children, one of whom See Election.

was born after the testator's death, and that child and another died in their parent's lifetime.

Held, that on the death of the parent, the Substitution of legacies.--A legacy given by surviving child became entitled to the whole an incomplete testamentary paper held

to be in share of which the parent had been tenant for substitution for two legacies of greater amount life. Amies v. Skillern, 14 Sim. 428. given to the same party by a previous will and See Per Stirpes ; Power of Appointment. codicil.

LAPSED BEQUEST. If an incomplete testamentary paper, made before the 1st January, 1838, contains internal

Devisee or legatee's death.- Republication. evidence of an intention to make an entirely Act (7 W.'4, and i Vict. c. 26) came into

The testator, by a will made before the Wills' new disposition, and for that purpose to undo all that had been done by a previous complete operation, bequeathed a share of his residuary will, the court will give effect to the new dis- estate to one of his sons, who was also thereby position as far as it goes, in substitution for the made one of the devisees in trust and executors former, but will treat the former one as opera- Act came into operation, leaving issue ; and

of his estate. The son died after the Wills tive so far as no substituted disposition is pro- after his death, the testator made a codicil to vided in its place. Kidd v. North, 2 Phill

. 91. his will, altering a bequest to another child, but Cases cited in the judgment : Jackson v. Jack. in other respects confirming his will: Held,

son, 2 Cox, 35; Attorney-General v. Harley, that the gift to the son did not lapse, but that 4 Madd. 263; Heming v. Clutterbuck, 1 BI. N. S. 479; Fraser v, Byng. 1 Russ.'& My: the sarre, so far as it was real estate, descended

10 the heirs-at-law of the son, and so far as it

was personal, to his executrix, under a will ISSUE."

made before the Wills' Act came into operation. 1. Testatrix bequeathed her personal estate That, under the 34th section of the Wills' to her sisters, or, in case of the death of either Act, the effect of the re-publication of the will or any of them having issue, then the share of by the codicil, was the same as if the testator her so dying to go to such child or children at the date of the codicil made a will in the equally:

words of the will so republished. Winter v. All the testatrix's sisters died in her lifetime, Winter, 5 Hare, 306. without leaving any child or children living at the testatrix's death, but one of them left two

1. Residue. Expense. grandchildren living.

The testator gave Held, that the word “issue” meant “ child

his real and personal estate to his executors, or children,” and consequently that, in the upon trust, after conversion and payment there

out of his debts, funeral and testamentary exevents that happened, the testatrix's estate was undisposed of. Goldie v. Greaves, 14 Sim. 348. penses, and legacies, to stand possessed of the 2. Bequest

to testator's brother and sisters, residue, and divide the same into ten equal A., B., and C., for their several lives, share parts or shares, which he bequeathed to ten and share alike, and after the decease of either persons named in his will, and he declared that of them, then, as to the share or shares of one of the debts, &c., should exceed 10,0001., then

if the net residue of his property, after payment or either of them so dying, the testator bequeathed the same to the “issue of the body or 10,0001., only should be applicable to the said bodies of him, her, or them so dying, begotten trusts; (1,000l. to each share); and in that by their present husbands," share and share case the testator gave the residue of his said alike, for ever. Assuming that A., B., and c. property beyond the sum of 10,0001, to his took life estates only in the fund, the court was residue after the payment of debts, &c., ex

nephews and nieces in equal shares. The net of opinion that the words “issue of the body,” ceeded 10,0001. One of the 10th shares of the &c., comprehended not only children but 10,000l. lapsed by the death, in the testator's grandchildren and more remote descendants of life-time, of one of the legatees : Held, that the A., B., and C. Evans v. Jones, 2 Coll. 516.

lapsed share of 1,0001. did not pass as residue Cases cited in the judgment: Taylor v, Langford, to the nephews and nieces, but was undisposed 3 Ves. 118; Walker v. Shore, 15 Ves. 122.

of. Green v. Pertwee, 5 Hare, 249.





Analytical Digest of Cases : Courts of Equity. 2. Set off. - Debt.- Where a debt to the sons in like manner, with remainder to his own estate of a testator may be set-off by the exe- right heirs for ever; and he declared that his cutors, against a legacy bequeathed by the tes- trustees and executors should stand possessed tator to the debtor, such debt may also be set- of his personal estate after John's death, in off against a legacy bequeathed by the testator trust for such person and persons, in the same to the wife of the debtor, subject to her equity order and succession, and for such and the (if any) in the legacy. M Mahon v. Burchell, same estates and interests as were thereby de5 Hare, 325.

clared concerning his real estates, so far as the See Cumulative Legacies; Election ; Incom- nature of the property, the rules of law and plete Testamentary Paper ; Lapsed Legacy: equity, the deaths of parties, and other conMisdescription; Specific Legucy.

tingencies would admit of. The testator died

in 1780; his son John was his heir-at-law and MARSHALLING OF ASSETS.

customary heir. John and A., B., C. and D. Additional legacy to A., charged upon real died without issue. and personal estate ; other legacies not charged

Held, that the trusts subsequent to the trust upon the real estate; if A. exhaust the personal for the first son of John were not void for reestate, other legatees shall have satisfaction out inoteness, and that the ultimate trust of the of the real estate devised.- Ambl. 127. Han- personal estate, as well as of the freehold and by v. Fisher, 2 Coll. 512, n.

copyhold estates, vested, on the testator's death, MISDESCRIPTION OF LEGATEE.

in his son John, as his heir-at-law at his death. 1. Testatrix bequeathed 2001. reduced an- Boydell « Golighty, 14 Sim. 327.

See Remoteness. nuities, standing in her name, to her nephew. That bequest was copied from a prior will, at the date of which she had 2001. reduced an- Joint tenants.- Substitution.-Gift to A. for nuities standing in her name. Afterwards she life, with remainder to the daughters of B., sold that sum, together with certain additions and their descendants, per stirpes, to hold to which she had made to it, and invested part of them, their heirs, and assigns for ever.” The the proceeds in 25l. long annuities : Held, that daughters had children at the death of the testhe long annuities, which were the only stock tator and of the tenant for life: Held, that the that she was entitled to at the date of her lasi daughters took absolute interests and in joint will, and at her death passed to her nephew. tenancy, and that the issue could only take by King v. Wright, 14 Sim. 400.

substitution. 2. Bequest to John Newbolt, second son of William Strangways Newbolt, vicar of Somer- distribution, but succession or some species of

The words per stirpes held to impart not only ton. The vicar of Somerton was William Ro

representation. bert Newbolt. His 2nd son was Henry Robert,

Dick v. Lacy, 8 Beav. 214. and his 3rd son, John Pryce: Held, that John

Case cited in the judgment: Pearson V, StePryce was entitled to the legacy. Newbolt v.

phen, Bli. 203; 2 Dow, & Cl. 328. Pryce, 14 Sim, 354.


Joint tenancy. A bequest of property to be See Settlement.

at the disposal of the testator's wife, for herself

and children, does not give the widow the PERPETUITY.

power of appointment, or make the widow and Remoteness.- Testator gave his freehold and children tenants in common, but creates a joint copyhold estates and his personal estate to tenancy. Crockett v. Crockett, 5 Hare, 326. certain persons (whom he appointed his exe

Case cited in the judgment: Raikes v. Ward, cutors), in trust, out of his personal estate

1 Hare, 445. and by sale or mortgage of his freehold and copyhold estates, to raise money sufficient to pay bis debts, funeral expenses, and legacies,

See Trust. and out of the rents and interest of so much of

QUALIFYING GIFT. his real and personal estate as should not be sold or disposed of for those purposes, to pay tion in a will which goes to cut down or qualify a

Illustration of the distinction between a direccertain annuities and such sums as his trustees should think sufficient for the maintenance of prior absolute gift, and one which only goes to his son John and his children, (if he should regulate the mode in which such gift shall be have any,) and to accumulate the residue of the dealt with and enjoyed. Gompertz v. Gompertz,

2 Phill. 107. rents and interest during the life of John, and after John's decease, to stand seised of his real estates, in trust sor John's first son and the Perpetuity. Accumulation. – Testator debeirs of the body of such first son, succes- vised his estates in trust for the plaintiff for life, sively as they should be in priority of birth, with remainder to his first and other sons in and for the several and respective heirs of the tail male, with remainders over: and directed body and bodies of every such son, and, for that, if any person for the time being entitled default of such issue,” for A. for life, with re- to the possession of the estates should be under mainder to his sons in tail, with remainder to 21, the trustees should, so long as the person B. and his sons, and to C. and D., and their so entitled should be under 21, receive the








Analyrical Digest of Cases : Courts of Equity. rents and apply a competent part thereof for Held, that the clause of revocation and gift his maintenance and invest the surplus in their over were valid. Cooke v. T'urner, 14 Sim.493. names on government or real security, and from Case cited in the judgnient: Stapilton v, Stapiltime to time receive the incoine thereof and

ton, 1 fik.2. invest the same in like securities, so that the

SETTING-OFF DEBT. sane might accumulate, and should stand possessed of such surplus rents, together with

See Legacy. the accumulations thereof, upon trust to inrest the same from time to time in the purchase of 1. Parent and child -So long as property to real estates, to be forthwith settled to the uses which a married woman becomes entitled under and upon the trusts thereby declared of the devised estates. Held, that the trust was void ministrator, and she and her husband have

an intestacy remains in the hands of the adför remoteness. Browne v. Stoughton, 14 Sim. done nothing to point out the mode in which 369.

they wish the fund to be dealt with, their child See Perpetuity; Accumulation.

cannot enforce its equity to a settlement. REPUBLICATION OF WILL.

Winch v. Brutton, 14 Sim. 279. See Lapsed Bequest.

2. Il a testator directs his real estate to be settled on his son, his heir apparent, for life

with remainder to the first and other sons of 1. Testator bequeathed all his personal estate, his sons, in tail, with remainder to A. for life, except the money laid out in, stock, mortgages, with remainder to his first and other sons in and bonds, to A.; and as to his money in tail, wit's remainders to other persons and their stock and on mortgages and honds, he gave sons in like manner, and ultimately, on his own the same to B. The gift to B. failed by an right heirs; and his personal estate to be .event analogous to a lapse : Held, that the pro- settled on the same persons, in the same order perty which was intended to be given to B. and succession, and for the same estates and j.assed under the residuary bequest to A. interests, so far as the nature of the property Evans r. Jones, 2 Coll. 5ló.

and the rules of law and equity will admit of, Cases cited in the judgment : Cambridge r. the court, if a suit is instituted immediately

Rous, 8 l'es. 12, 25; Leake v. Robinson, 2 after the testator's death, for the purpose of
Mer. 363, 392.

having a settlement made, will order the ulti2. A testator gives to A. B the residue of to be made to the person who is the testator's

mate limitation of the personal and real estate his personal estate, except certain South Sea heir. Boydell v. Golightly, 14 Sim. 328. 'stock, which he gives to C. D.' The stock is afterwards converted into money. It falls into

SPECIFIC LEGACY. the residue given to A. B. Wingfield r. Neu

Upon the construction of a will : Held, that ton, 2 Coll. 520 n.

certain legacies of stock, and of money on See Election : Legacy.

mortgages, bonds, &c., were specific. Évans REVERSIONARY INTEREST.

v. Jones, 2 Coll. 516. Limitation " to and for the benefit of the executors and administrators of a tenant for life.-A sum of money was bequeathed in trust for mentary Papers ; Per stirpes.

See Cumulative Legacies ; Incomplete Testaseveral tenants for life in succession, with remainder to such person or persons as one of

TAIL, ESTATE. them, who was a married woman, should by See Estate Tail. will appoint, and in default of such appoint. mont, " to and for the benefit of her executors or administrators.” The lady died without 1. Precatory words. A direction in a will making any appointment. Held, that her per- that certain persons should be employed as sonal representative took the reversionary in- against a manager of testator's estates whenterest in the fund, not beneficially nor in trust ever his trustees should have occasion for the for her next of kin, but as part of her estate. services of a person in that capacity: Held, not Atlorney-General v. Mulkin, 2 Phill. 64. to create a trust which such person could enCases cited in the judgment : Saberton v. Skeels. force. Finden v. Stephens, 2 Phill, 142.

i Russ. & M. 587 ; Walton ". Makin, 6 Sini Case cited in the judgment : Show v. Lawless, 5
118; Daniel v. Dulley, 1 Phil. 1, Smith s. C. & F. 129.
Dudler, 9 Sim. 12.5; Bulmer v. Jay, 4 Sim.
48 ; 3 M. & K. 197; Graffey v. Ilunpage, 1 he was desirous of making a suitable provision

2. Precatory. — Testator, after reciting that Beny, 46.

for his wife, as well us for his daughter and REVOCATiox, CONDITICXAL. grandchild, in order to mark his unbounded Forfeiture. Heir.— Testator, after giving confidence in his wife, and his belief that she certain benefits to his heiress at law, out of his would be actuated by the most maternal rereal estates, revoked them, and gave them over, gard towards his child, gave her all his property, in case she should dispute bis will or his com- for her own use, benefit, and disposal absolutely, petency to make it, or should not confirin it implicitly relying on her attachment to his when required by the trustees.

daughter and granddaughter. He then directed



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