obligor pay 201. to such a person as the obligee by his last Will in writing shall appoint it to be paid, then the obligation to be void; if the obligee appoint no person to whom it shall be paid, but makes his last Will, and makes executors thereby, yet the 201. shall not be paid to the executors; for here it appears that this was to have been paid to an assignee in deed, to be made by the obligee by his appointment, and not to an assignee in law (y). The law will never seek out an assignee in law, when there may be an assignee in fact (z).

Likewise a right to sue, which never existed in the testator or intestate, may accrue to the executor or administrator by remainder: as where a lease is made to B. for life, the remainder to his executors for years (a), or where a lease for years is bequeathed by Will to A. for life and afterwards to B., who dies before A.; although B. never had the term in him, yet it shall devolve on his executors, who may maintain an action in respect of it (b).

Suits accruing

to executors by remainder.

to testator:

So a suit may accrue in the time of the executor or Suits accruing to executor by administrator by reason of a condition made to the deceased. reason of con-As where cattle, plate, or other chattels were granted by ditions made the testator upon condition that if A. did not pay such a sum of money, or to do other act as the testator appointed, &c., and this condition is not performed after the testator's death, now is the chattel come back to the executor, and he may maintain an action respecting it: So where the condition is that the testator or his executors shall pay the money to avoid the grant; as where he pledges a jewel or a piece of plate, and before the day limited for payment, he dies, his executor is entitled to redeem at the day and place appointed (c).

in what cases the executor of

redeem.

If no time be set for the redemption of the pledge, it has the pledgor may been laid down that the pledgor must redeem during his life, and his executors cannot redeem (d). But the pledgor is not confined to the lifetime of the pledgee (e). tender should be to the executor of the pledgee (ƒ).

(d) Ratcliff v. Davies, 1 Bulstr. 29. S. C. Cro. Jac. 244. Noy, 137. Yelv. 178. S. P. 3 Salk, 267. 1 Lord Raym. 434, per Treby C. J. Kemp v. Westbrook, 1 Ves. Sen. 278, by Lord Hardwicke. Bac. Abr. Bailment, (B.) But in the book last cited a query is added, whether Equity would not relieve, unless it was clearly proved that in case of death the benefit of re

demption was to be lost.

The

And it

CHAPTER THE THIRD.

OF THE TITLE OF AN EXECUTOR OR ADMINISTRATOR TO THE EXECUTORY AND CONTINGENT INTERESTS OF THE TESTATOR

OR INTESTATE.

CONTINGENT and executory interests, whether in real or

personal estate, are transmissible to the representative of a party dying before the contingency, upon which they depend, takes effect (a).

Thus in Pinbury v. Elkin (b), the testator, in case his wife. should die without issue by him, then, after her decease, gave 801. to his brother; after the testator's death, the brother died in the lifetime of the widow, who afterwards died without leaving any issue: The Court (Lord Macclesfield) held that this possibility devolved to the executors of the brother, though he died before the contingency happened; and decreed the legacy accordingly, with interest from the widow's death.

So in King v. Withers (c), the testator devised land to his son B.; but if he should die without issue male of his body, then living, or which might be afterwards born, that then his daughter should receive at her age of twenty-one, or day of marriage, which should first happen, the sum of 3,500l. (over and above a portion bequeathed to her); but in case the contingency of the said son's dying should not happen before his daughter's said age, or day of marriage, that then she should receive that sum whenever such contingency might happen; and charged the said legacy or portion on

(a) Fearne, Conting. Rem. 554. 2 Saund. 388, n. note to Purefoy v. Rogers. See also stat. 1 Vict. c. 26, (the new Statute of Wills), s. 3.

(b) 1 P. Wms. 564.

(c) Cas. temp. Talb. 117. S. C. 3 P. Wms. 414. Prec. Chanc. 348. 3 Bro. P. C. 135, 2d edit.

the real estate: The daughter married, having attained her age of twenty-one, and died in the lifetime of her brother B., who afterwards died without issue male: Lord Talbot decreed, that the legacy should be raised, for the benefit of the administrator (the husband) of the daughter: and he held, that though it did not absolutely vest, because it might never arise, yet it so far vested as to be transmissible to the representative. This decree was afterwards affirmed in the House of Lords.

In Chauncey v. Graydon (d), legacies were devised to children, to be transferred to them at their respective ages of twenty-one, or days of marriage; and in case any of them should die under that age, or marry without consent, &c., his or her share should go to the others at their ages of twenty-one Lord Hardwicke held, that a share accruing by the forfeiture of a child's marrying without consent, vested in another who attained twenty-one but died before such forfeiture, so as to entitle the personal representative of such deceased child, to an equal share thereof, with the other surviving children; for (said he) where either real or personal estate is given upon a contingency, and that contingency does not take effect in the lifetime of the devisee, yet if real, his heir, and if personal, his executor, will be entitled to it for though in law a possibility is not assignable, yet in equity, where it is done for a valuable consideration, it has been held to be assignable, and is transmissible to the representative of the devisee.

So in Peck v. Parrot (e), B., in consideration of natural love and affection for her niece, and to secure to her separate use her personal estate after her own decease, granted all her personal estate to trustees in trust for herself during her natural life, and after her decease, and payment of her debts and funeral expenses, in trust for the sole and separate use of her niece alone, and not for her husband, or for such person as she should appoint; the niece died in the lifetime of B.; (e) 1 Ves. Sen. 236.

(d) 2 Atk. 616.

and after B.'s death, her (B.'s) executor and residuary legatee filed his bill against the personal representative of the niece, for this personal estate: Lord Hardwicke said, that, under a trust, a contingent interest might go to the executor or administrator, though not vested in the person during his life; and that in the same manner the contingent interest here would go to the representative of the niece; and accordingly dismissed the bill.

These cases, and others referred to in the note below (f), establish the principle, that contingent and executory interests, though they do not vest in possession, may vest in right so as to be transmissible to executors or administrators. But it is obvious that where the contingency, upon which the interest depends, is, the endurance of the life of the party entitled to it till a particular period, the interest itself will be extinguished by the death of the party before the period arrives, and will not be transmissible to his executors or administrators.

This consideration leads directly to that portion of the doctrine of Lapsed Legacies, which has reference to lapse occasioned by the death of the legatee before the death of the testator, or before any other period, upon the arrival of which in the lifetime of the legatee, the right to the legacy depends. But it will be convenient to postpone the investigation of this doctrine, and to consider it hereafter, together with the subject of Legacies generally.

It may be observed in this place, that the executor or administrator of the object of a power cannot be an appointee under it: Thus where a husband gives his wife a power of appointment of a fund in favour of his children, and a child dies without any appointment having been made to him, no part can be appointed to his executor or administrator (g).

(f) Barnes v. Allen, 1 Bro. C. C. 181. 3 Ves. 208. Perry v. Woods, 3 Ves. 234. Massey v. Hudson, 2

Meriv. 130.

(g) Maddison v. Andrew, 1 Ves. Sen. 59.

The executor

of the object

of a power cannot be an appointee.