gent, or time of rest given, and of infant strangers, all having rest in the fund. there is an express direction for accumulation, it is strong to say, Where the lethat direction shall not have effect. That was a case, however, gacy is continin which, if I collect the effect of it right, the father, the mother, payment fuand the children, had among them the title to the property, that ture, no inte was to produce the interest. The children had, as among them- the legatees are grandchildren, selves, an equal chance to take the capital with the accumulation; or other class and the mother, who was entitled under the limitation over, consented to the application. That case, therefore, is an authority a common inteonly, that, where the Court sees that it is for the benefit of the infants, the chance of surviving being equal, and can procure the consent of all persons interested, the Court will take the chance of controverting the direction of the will. As to the case (k), before Lord Thurlow, I cannot bring myself to think that case properly decided; as, upon certain contingencies, both the principal and the interest would have gone to individuals, who, not only did not, but could not, consent, not being then in existence. In the event of the death of a child, under the age of twenty-one, leaving issue, the accumulated property would have gone to that issue; and how the Court could give to the infants that property, which in that event would belong to others, I cannot conceive. The result is, that, if the chance of surviving is equal among all, and no other interest, that, upon any contingency, would take effect, will be defeated, maintenance shall be allowed out of the interest; but it is impossible to give it, where, in any event under the operation and construction of the will, that interest may possibly belong to other persons. In this case, future children coming into existence, may take shares: but it is not stated, to whom this property is to go, if all the children should die under the age of twenty-one. The petition must therefore stand over, until I can see the will." withstanding the separate estate of the mother. In the case of Haley v. Bannister (1), the question was, whether Maintenance maintenance could be allowed, the father not being of ability, allowed, notalthough the mother had a competent separate estate: it involved the doctrine laid down in the preceding cases, the legatees being a class of grandchildren, having a common interest in the fund; for had the fund been given over to other legatees, maintenance could not have been given without consent. In that case, a reference having been made, in pursuance of a previous order to inquire whether the defendant, Aylmer Haley, was of ability to maintain and educate the plaintiffs, his infant children; and, in case he was not, to state what would be a proper allowance, and (k) Fendall v. Nash, supra, p. 1280. (1) 4 Madd. 275. gent, or time of payment fu ture, no inte the legatees are grandchildren, or other class of gers, all having infant stran a common inte rest in the fund. Maintenance allowed, the father not boing of ability, having compe. tent separate estate. Where the le- from what time, and out of what fund; the Master, by his report gacy is contin- 30th May, 1819, found that all the property of Aylmer Haley, consisted only of an annuity of 1807. during his life, of which he rest given, and was not then in the receipt; but that his wife Amelia Haley, was in possession of a separate estate to the amount of 1,300% a year, subject to the annuity of 1807; and that he was of opinion the said Aylmer Haley, personally, and independently of his wife, was not in circumstances and ability to maintain the plaintiffs, his infant children; and that, therefore, he had proceeded to consider the other parts of the reference, and found that the testator, R. Bannister, by his will, in 1812, devised certain estates after the decease of Aylmer Haley and his wife, to the use of all but the mother the children of his daughter Amelia Haley then born, or thereafter to be born, as tenants in common, and to their respective heirs for ever; and that the testator, by the first codicil to his will, directed that 6,000l. three per cent. consols, and 6,0007. three per cent. reduced annuities, should be purchased in the names of his executors, and that they should receive and invest the dividends so as to accumulate, until one of the said children ́should attain twenty-one, and upon his or her attaining that age, (if only one child who should attain that age) transfer the whole of the said two sums to such only child; and, if more than one such child then living, to transfer to such children one equal part of the said annuity and accumulations, in proportion to the number of such children then living: and he found, that in pursuance of an order, the two sums of 6,000l. had been carried over to the infant's separate account, and that there was standing on their separate accounts, the sums of 6,810. 11s. 4d. three per cent. consols, and 6,6887. 19s. 11d. three per cent. reduced annuities; and in cash 100l. 6s. 8d. which had arisen from the said annuities; and that the plaintiffs, the children (five in number), were all infants, the eldest being only ten; that the present expense of educating and maintaining them, would amount to 230%. a year; but that to enable the father to live in a style suitable to the expectations of his children, he was of opinion it would be proper to allow 3007. a year for their maintenance and education, from the testator's death, 28th December, 1815, to 5th of April, 1819, and from that time an allowance of 50l. a year for each of the five children; and that, as it did not appear to him that the infants were entitled to any fortune in possession, except the said annuities placed to their separate account, he conceived that the sum in cash and a competent part of the annuities should be applied for that purpose, and that the sums of 50% for maintenance gent, or time of ture, no inte infant stran gers, all having a common interest in the fund. Maintenance from the 5th April, and for the time to come, should be paid Where the leout of the dividends of the annuities. The residuary clause in gacy is continthe second codicil to the testator's will was as follows: "And payment fuinstead of my daughter, Amelia Haley, being my residuary rest given, and legatee, I make my executors residuary legatees in trust for the the legatees are grandchildren, benefit of my said daughter Amelia Haley's children, whatever or other class of the residue may be; my executors will add to it, the other consolidated and reduced Bank annuities which I have left to my daughter, Amelia Haley's, children." Upon the question, whether maintenance could be allowed, the mother being of ability to maintain her children, Sir John Leach, V. C., observing that he allowed, the believed the point was new, said, "The wife, during the life of father not being of ability, her husband, not being under a legal obligation to maintain the but the mother children, I think this Court cannot take into consideration her having compeseparate estate. The next question is, whether, attending to the terms of this will, I can order maintenance to be paid to the father out of the property bequeathed to the children? I am of opinion I can; for I take the principle to be, that wherever the children have a common interest in a fund, the income of the fund, if necessary, may be applied to their maintenance. In this case, children born or to be born have a common interest, and therefore the income of the fund is in this case applicable to maintenance (m).” In Billingsley v. Critchet (n), it was held, that a mother married to a second husband was not bound to maintain the children of her first husband, but an allowance for that purpose was made out of their fortunes; the mother had a provision from her first husband, and a further estate from her own family. It was however observed by Lord Commissioner Ashurst, that, had the widow remained unmarried, he should have entertained some doubt. SECT. VI. Of interest where the legacy is contingent or payable in futuro, and though the interest is not expressly given, an intention to give it, in the shape of maintenance, fairly inferable. tent separate estate. A further exception to the rule that interest shall not be With regard to (m) See also Errat v. Barlow, 14 Ves. 202; also M'Dermot v. Kealy, 3 Russ. 264, (n), where allow. ance out of a residue directed to be accumulated was made for the support of the legatee in the interval between the period of the legatees' (n) 1 Bro. C. C. 268, before interest. payment fu Where the le- allowed, until the time of payment of the principal has arrived, gacy is contingent, or time of occurs, where an intention, though not expressed, is fairly inferable from the will; for in that case it will be allowed from the death to give interest of the testator. In the following instances, it will be observed or maintenance that the legatees are strangers, and the legacies not payable until a future period, and it does not appear that the testator placed himself in loco parentis. ture, intention inferred. So with regard Thus in Pett v. Fellows (o), the testatrix bequeathed to her cousin, Phineas Pett, the sum of 1007.; to her cousin, Peter Pett, 2001; to her cousin, Elizabeth Pett, 1,000l.; "and in case any of the aforesaid three children, Phineas, Peter, and Elizabeth, shall die before the age of twenty-one, my intention being that their legacies shall be paid when they respectively attain those years, his or her legacy shall be equally divided between the survivors; and in case two of them shall die before the age of twenty-one, then the whole shall go to the survivor. I also give a power to my executors to apply any part of the aforesaid legacies towards the maintenance or education of the aforesaid three children, during their minority, as in their discretion they shall think fit." The question being, whether the legacies should carry interest, and, if so, from what time, Lord Eldon, C., was of opinion, that the testatrix intended the legacies should carry interest, that she made them payable at twenty-one, for no other reason than that if one of them died, his or her legacy should go to the survivors, and it was admitted they had no other subsistence. It was accordingly decreed, that the executors should be accountable for interest from the death of the testatrix; that what had been paid for education and maintenance should be deducted, and what remained should be placed out in the funds, till the legatees came of age, and then to apply to the Court to have them paid. A similar exception is likewise made in allowing maintenance to maintenance. where it is not expressly given, but an intention to give it is fairly inferable; maintenance being in fact another name for the whole, or a proportion, of the interest on the legacy. Thus in Lambert v. Parker (p), Richard Swallow, by will dated 1801, gave to his daughter, the plaintiff's mother, during her life only, an annuity of 2007. for and towards the maintenance of herself, and the education of her children, and to be applied by her for that purpose. The annuity was given for her separate gacy is contin ture, intention inferred. use, and not to be subject to the debts, &c., of her then present Where the leor any future husband; and after the decease of his daughter, gent, or time of the testator gave the sum of 5,000l. to all and every the children of payment fuher body lawfully begotten, when and as they should respectively to give interest attain twenty-one, equally; and in case one or more of such or maintenance children of his said daughter should die before the attainment of that age, the share of the child so dying was to go and be paid among the survivors, share and share alike, and as such survivors should attain their respective ages of twenty-one; and if only one should attain that age, then the whole to be paid to such one child; but in case no such child should attain the age of twentyone years, then the testator directed the legacy should cease, and sink into the residue. Upon the petition of the infant children for maintenance, Sir William Grant, M. R., in giving judgment, observed, "The strong argument in support of maintenance is, that the testator has expressly given it during the mother's life; and it is extremely improbable, therefore, that he intended the children should be without any provision, in case she died leaving them under age. I think, therefore, there is a fair inference, from the whole of this will, that the testator's intention was to give maintenance. The words when' and as' do not suspend the gift, but only the time of payment. There is, too, certainly, something in the argument (g), founded upon the word 6 cease' used in the will." In Boddy v. Dawes (r), the testator gave legacies out of a sum of stock, separated from the general residue, to the grandchildren named in his will, on their attaining the age of twenty-one; and if any should die under that age, his will was that their portion should be divided among the survivors; but if all should die under that age, he gave the interest arising to their father for his life, and after his death over. Lord Langdale, M. R., thought it a reasonable inference from the whole will, that the testator intended to give intermediate interest to the grandchildren. His Lordship observed, that the testator directed in case all the grandchildren died under twenty-one, that the interest arising, not the interest which had arisen, from the whole legacy, should be enjoyed by the father; and he thought there was some weight in the argument from the word " portion." (q) Per Sir Samuel Romilly. (r) 1 Keen. 362. |