From what time mainte

nance allowed.

niece, two questions arose; the first, whether each took a vested interest in a moiety of the dividends, &c. the defendant Thomas Sisson, as residuary legatee of the father, and administrator of Elizabeth, claiming, upon that ground, a moiety of the dividends accrued in his life, against the claim of the plaintiff, as the survivor: and secondly, which more immediately concerns the subject under discussion, whether the executors were entitled to be reimbursed the sums expended for maintenance and education. With respect to the latter question, Andrews v. Partington, being cited, Sir William Grant, M. R., observed, "That case has been very much shaken: I have found two decrees by Lord Alvanley, allowing maintenance for the time past" (m). With respect to the first point, his Honor, upon the express language of the will, decided that it amounted to a plain direction, that the interest should go with the principal, except that part which the executors should have applied in maintenance; and, upon a subsequent day, he remarked, that in the case before him, it made no difference, whether the bequest was of a residue or a money legacy.

In the case of Ex parte Penleaze (n), the petition on behalf of the infant stated, that under the will of E. B. he was entitled to several freehold and copyhold estates of considerable annual value, the rents and profits of which were, by the testatrix's will, directed to be received by P. S. and W. J., the trustees, who were expressly required by the said will to lay out the same, after all deductions for repairs, or so much as should be sufficient for that purpose, in the maintenance, support, education, and bringing up of the petitioner: that the amount of the petitioner's then income from his estate and property was 7307. per annum ;* that in the event of his surviving his mother, (aged fifty-three), he would become entitled under the same will to other estates of 8001. per annum. That the petitioner's mother derived an income under the same will for her separate use, independently of the petitioner's father, of about 2,000l. per annum, which on her death did not go to the father, but was limited to other persons. That the petitioner had a brother wholly unprovided for; and that as, upon the death of the mother, the estates and property to which she was entitled for her life would not devolve to the petitioner's father, he, the father, refused to make the

(m) See Mundy v. Earl Howe, Hoste v. Pratt, and Greenwell v. Greenwell, supra, pp. 1297, 1294, 1283.

(n) 1 Bro. C. C., Belt's ed. p. 387,

note.

time maintenance allowed.

petitioner any allowance for his support, education and advance- From what ment, and, more especially, as he had sent the petitioner at a considerable expense to the university of Aberdeen. That the petititioner was entered as a student at Lincoln's Inn, for the purpose of being called to the Bar, and was also entered as a gentleman commoner of Oxford; and that he was above the age of nineteen years. That, by the refusal of the trustees, &c., and his father, the petitioner was prevented keeping his terms and prosecuting his studies with effect. The petitioner, therefore, prayed for a reference as to what was proper to be allowed for his maintenance and education, since the death of his sister (when he became entitled to the estates), and for the time to come, for his advancement in life, according to his age and fortune; and that such allowance might be paid by the trustees out of the rents and profits of the estates, or the savings thereof, to the petitioner's father, to be by him applied accordingly; and Sir William Grant, M. R., ordered accordingly. The reference as to the allowance was as prayed "for the time past" from the death of the petitioner's sister, and for the time to come, and for his advancement in life, &c. The Master having made his report accordingly, that report was confirmed on the 17th of August following. The sum of 1,6167., thereby reported, was ordered to be paid for the petitioner's maintenance and education for the time past, from the death of his sister to the 24th of July then last, unto the petitioner's father: and the sum of 4001. a year was also ordered to be paid for the petitioner's maintenance and education, to his father, for the time to come, till he attained twenty-one.

In the case of Maberly v. Turton (0), Gilbert Mitchell bequeathed 8,000l. to be invested by trustees in stock, who from time to time were to invest the dividends, to accumulate for the benefit of the children of his niece and her husband, until the principal with the accumulated dividends should be divided and paid to them as after mentioned; with power, with the approbation of the father and mother, or the survivor, and after the death of the survivor, at the discretion of the trustees, to apply the dividends, or part thereof, for maintenance, and to pay the 8,000l. and the accumulation unto the children then born, or thereafter to be born, equally, share and share alike; the respective shares to be vested interests in such children at their respective ages of twenty-one, or in the issue of such as should

(0) 14 Ves. 499.

From what time mainte nance allowed.

die under that age, with benefit of survivorship. A power was given the trustees to elect a new trustee, with the approbation of the mother. The testator's brother (who was one of the trustees) and the husband of the niece were appointed executors. The testator died in 1792. One of the trustees died in his lifetime, and John Mitchell, the surviving trustee, died after the testator, leaving the father of the children his executor; no other trustee had been appointed. The bill was filed on behalf of the infant children, and an application was made for an order upon the father to pay in the money. Lord Eldon's judgment is reported as follows: "In the case of Andrews v. Partington, Lord Thurlow thought it so extremely dangerous that a parent should determine for himself the question, whether he was of ability to maintain his children, that he would not allow Mr. Partington one shilling of the money which he had permitted to be expended in the time past. The decision was according to precedents; but there is no doubt, that since that time the rule has been altered. At present, as the precedents stand, the Court must look at each case, with the view to make such order as the rule prescribed by the testator justifies, and the conduct of the parties allows. In this case, there is no doubt the intention of the testator was not to entrust this father and mother with the power of applying these dividends to maintenance. The intention was, that if it should be proper this interest, directed to accumulate, should be applied in maintenance, the trustees should have the power to make that application: but that is to be checked by the approbation of the father and mother. The result is, that if they had, for good and substantial reasons, approved the application of the dividends towards maintenance, and the trustees, without a solid reason, had refused to act upon that, the Court would, if an application had been made in seasonable time, examine whether the trustees ought to act upon it. But in this instance there were no trustees; at least, none who had been acting; and if the interest has been applied, that application has been, not according to the discretion of those persons whom the testator intended and authorized to act, but according to the approbation of the father and mother, not checked by the discretion of the trustees; and then the fact that there were no trustees, or that the trustees never acted, which is in effect the same, imposes upon the Court the necessity of examining strictly what trustees ought to have done. Therefore I shall direct a reference to the Master to inquire whether it would have been reasonable and proper for any trustee or trustees,

diate interest undisposed of.

acting in the execution of this will, to apply any and what part where a fund of the interest and dividends of the sum of 8,000l. in or towards is given upon a contingency, the maintenance of the children, and in what proportions, as and intermebetween such children respectively; and to state what children there were at the date of the will, and at the death of the testator; what children have been born since, and which of them are now living: the Master to have regard to the situation, circumstances, and ability of the father, and the fortunes of his children. I desire it to be understood, I do this upon the particular circumstances of this will." The Master's report under this order stated, that at the death of the testator there were five children; one of whom was dead, and two more had been since born; and that it was reasonable to apply the whole of the interest and dividends of the 8,000l. for maintenance.

In Ex parte Bond (p), Sir C. Pepys, M. R., said, he had on several recent occasions made inquiry as to the practice, and found it was contrary to that stated to have been introduced by Lord Rosslyn. To allow for past maintenance, and to treat as a debt the expenditure which the law imposed upon the father as a duty, would be to act against the settled rule of the Court. The Court might, if a special case were made, direct an inquiry; but there the inquiry as to past maintenance was asked for as a matter of course, and must consequently be refused.

In Pickwick v. Gibbes (q), the testator directed the investment of a sum of money as soon as conveniently could be after his wife's decease, and the income, or a competent part of it, to be applied for the benefit of an infant nephew: the wife died in the testatrix's lifetime, and Lord Langdale, M. R., held, that interest was to be computed from the testator's death; the intention was, that the legatee was to have maintenance from the wife's death; and the wife having pre-deceased the testator, interest for the legatee's maintenance became payable from the testator's death.

SECT. X. Of interest, where a particular or residuary fund is given upon a contingency, so that the intermediate interest is undisposed of.

Where a fund, whether particular or residuary, is given upon a contingency, so that the intermediate interest is undisposed of (that is to say), the intermediate interest between the testator's

(p) 2 Myl. & K. 439; see also Simon v. Barber, Taml. 22.
(2) 1 Beav. 271.

Where a fund death, if there be no previous legatee for life, or, if there be, then is given upon a between the death of such previous taker and the happening of the contingency, and intermediate interest undisposed of.

1. Where a previous life

estate.

contingency, will sink into the residue for the benefit of the executor (9) or next of kin of the testator, if not bequeathed by him; but if disposed of, for the benefit of his residuary legatee. For example, where there is a previous life estate, as to A., and after his death to the youngest child of B., and A. dies in B,'s lifetime; as it is uncertain, during the life of B., which of his children may be the youngest at the period of his death, the legacy cannot vest upon the death of A.; so that the interest to accrue between the deaths of A. and B. is, upon the event that has happened, undisposed of, and will fall into the residue for the benefit of the persons ultimately entitled thereto.

So again, if the legacy were given to A. for life, and five years after A's death to B., the intermediate interest of the legacy between A.'s death and the end of the five years would, as undisposed of, sink into the residue.

The law is the same, if there be not a previous life estate, as where a legacy is given to A. upon the contingency of his attaining twenty-one; or to A. upon the death of B.; or five years after the testator's death. In all these cases the intermediate interest between the testator's death and the happening of the contingency or future event will sink into the residue, the legatees attaining the age or living to the prescribed period, being of the essence of the gift, they cannot vest before; and accordingly the interest is undisposed of in the interim.

1. First, where the legacy is given to one for life, and after his death over to another upon a contingency.

In the case of Wyndham v. Wyndham (r), Wadham Wyndham, by will, in 1763, directed his trustees, H. W. Wyndham and P. Wyndham (the plaintiff), to settle an account of what he had in the public funds, bonds, mortgages, or securities; and after paying his wife Catherine what was due to her under her marriage articles, to vest the remainder in the public funds, and pay the interest to his wife for life; and, after her decease, to her niece, Lady Cope, for life; and if she died without leaving children, then he left the principal to the younger children of his nephew, the said H. W. Wyndham, if he should have any; if not, then he left it to his cousin, the defendant Wadham Wyndham. The testator bequeathed the residue of his estate to his wife. After

(2) Not within 1 Wm. 4, c. 4, see Ch. xxiv. infra. (r) 3 Bro. C. C. 57.