Where a fund daughter should have no such son, or having such, none should is given upon a attain twenty-one, then he gave the residue to W. E. Pier, (a contingency,

and intermediate interest

undisposed of.

Where no previous lifeinterest.

defendant), subject to the payment of 4,000l. to the daughter of his daughter, Barnaby, as therein mentioned. Frances died an infant within a few months after the testator's death, and the plaintiff, the eldest son of Elizabeth, being entitled when of age to the residue, filed his bill: and the question was, whether the interest of the residue of the personal estate, from the death of Frances, the daughter, to the time it would vest in the plaintiff or any other son of Elizabeth, must be accumulated and wait the contingency; or whether, as the defendants contended, it was an interest undisposed of, and went to the next of kin of the testator. Lord Hardwicke decided that it was part of the residue, observing, "During the life of Frances, the daughter, the profits vested in her, because the residue did so; as it was a legacy payable at a future time, and devested on the contingency, and she being a daughter, and this her portion, he decreed them to her representatives. As to the rest of the profits, which have accrued and will accrue till the devise to the son of Mr. Barnaby vests, I am of opinion that the interest and profits must be considered as a part of the residue, and must accumulate." His Lordship further remarked, that the residue of a personal estate was nothing fixed, but a fluctuating interest, and if the personal estate were increased by any event after the death of the testator, it was part of the residue, and would pass as such; and why then not the interest of the residue; for that interest was assets, and part of the estate.

In Trevanion v. Vivian (c), a bequest was made of the residue of personal estate, if the legatee should attain twenty-one. That the profits in the meantime were given and should accumulate, were cited two cases, Green v. Ekins last stated, and Butler v. Butler, 22nd of June, 1744, where a residue was devised to A. if he should attain twenty-one, but if not, then over; but Lord Hardwicke, C., would not suffer it to be argued, as having determined it before, that the interest should accumulate and make part of the residue; so in this case, interest made part of the residue, not like an executory devise of land, which plainly descended to the heir-at-law in the meantime.

(c) 2 Ves. sen. 430.

Where a fund is

SECT. XI. Of interest, where a particular or residuary given by immefund is given by immediate bequest, with a condition diate bequest, to devest it upon a contingency with a limitation over tion devesting to another.

Where a legacy is given by immediate bequest, whether such legacy be particular or residuary, and there is a condition to devest it upon the death of the legatee under twenty-one, or upon the happening of some other event, with a limitation over, and the legatee dies before twenty-one, or before such other event happens, which nevertheless does take place; yet, as the legacy was payable at the end of the year after the testator's death, the legatee's representative, and not the legatee over will be entitled to the interest which accrued during the legatee's life, until the happening of the event which was to devest the legacy.

Thus, in Tissen v. Tissen (d), Francis Tissen bequeathed all his personal estate and the produce thereof, after the payment of debts, &c., to the child his wife was then enceinte with; if one son, then to such son, and if more than one son, and the first son should die before twenty-one, or marriage, without issue, then his personal estate should go in succession to the sons of his body; but in case there should be no such son, or all such sons should die before twenty-one, or marriage, without issue, then he gave it to his executors and administrators, and appointed his three brothers, John, William, and Samuel, executors. The widow was afterwards delivered of a son, the plaintiff Francis, the infant, who filed the bill for an account, and to have directions concerning his father's estate. The cause having been. heard before Sir Joseph Jekyll, M. R., he decreed that no more than the principal money of the testator's personal estate should go over to his three younger brothers, in case the plaintiff should die under age and unmarried, without issue; and declared that the interest, which should be made of the principal, belonged in all events to the plaintiff, and should be placed out from time to time for his benefit. Upon an appeal from this decree to Lord Chancellor Parker, it was objected, that in case of the plaintiff's death under age, unmarried, and without issue, not only the principal, but also such profits as should be made thereof, should go by the will to the appellants, John, William, and Samuel, the executors; for the design was to amass an estate together; and

(d) 1 P. Wms. 500.

with a condi

it in favour of a legatee over.

Where fund is given by immediate bequest, with a condition devesting it in favour of

a legatee over.

when he gave his personal estate with the produce of it to the son that his wife was enceinte with, and if no son, or if that son should die under twenty-one, or before marriage, and without issue, then to his executors; the word it comprehended the whole legacy given to his son, and imported as well the whole produce of the personal estate, as the personal estate itself. But his Lordship said, "The son shall have the profits to himself, but the personal estate, that is, the whole capital stock, shall go over in case of the son's death unmarried, without issue, and under twenty-one."

Again, in Taylor v. Johnson (e), a testator bequeathed 500l. to his infant grandson, without mentioning any time of payment, with a proviso, that if the grandson should die before twenty-one, the legacy was to go to ano er person. The question was, whether the grandson should have the interest of the 5002. during infancy; and Sir Joseph Jekyll, M. R., said, "It is extremely clear that this is a condition subsequent, and therefore, as the infant's death before twenty-one will only defeat the legacy from the time it happens, consequently, in the meanwhile, it shall carry interest, at least from the end of a year after the death of the testator.'

In Shepherd v. Ingram (ƒ), the testator, Shepherd, having devised all his real estates, and also his personal estate to trustees for certain purposes, declared that, as to the residue thereof, he gave the same to the child or children of his daughter Frances, in equal shares, but in case she died without leaving issue, then to Christopher Jeafferson and Joseph Pyke. After the testator's death, Frances married, and, having three children, a suit was instituted on their behalf for an account of the profits of the residue of the real and personal estate from the birth of the eldest child; and that so much as became due, from that period until the birth of the second, might be declared to belong to the first; and so much as accrued after the birth of the second, to the time the third was born, might be declared to belong to the first and second children; and that so much as became due from the birth of the third child might be declared to be the property of all the three children; and it was so decreed by Lord Northington, C., his Lordship being clearly of opinion, that the children took a defeasible interest in the residue, and put the case of a legal devise of the residue to the children, with a subsequent clause declaring, that if all

the children died in the life of their mother, then the residue Where a fund is should go over; "That," said his Lordship, "would be an ab- given by immesolute devise with a defeasible clause, and the children would be with a condiclearly entitled to the interest and profits until the contingency it in favour of a tion devesting happened." legatee over.

In Mills v. Norris (g) Andrew Moffatt bequeathed his residuary estate and the interest thereof to the children of his two daughters, Elizabeth Mills and Martha Norris, to be paid at twenty-one, with a declaration that the issue of a deceased child should be entitled to its parent's share; but if his daughters happened to die without issue, or, having issue, such issue should die without issue during the lives of Elizabeth Mills and Martha Norris, then he gave his residuary estate to his brothers James and Aaron Moffatt. Two children of the testator's daughters having attained twenty-one, an order of the Court of Chancery was obtained for payment of interest to such of the children who had attained that age, upon their respective shares. Another child being shortly afterwards born, a question arose, whether it was entitled to a proportion of the interest, which accrued prior to its birth, and the Court determined that it was not entitled to any part of the by-gone interest, but to a share of the capital only.

In Montgomerie v. Woodley (h), Crisp Molineux, after bequeathing his residuary personal estate to his second grandson, W. C. M. Montgomerie for life, and after his death, to his first and other sons, and the heirs male of their bodies, with similar limitations in favour of his third and other grandsons, and their issue, such limitations exactly corresponding with those which the testator had made before of his real estate, directed that none of his grandsons should take or come into possession of any of his estates before they attained their ages of twentyfive, but that they should receive maintenances during minority, and also from their ages of twenty-one to twenty-five. The testator died in 1792; and W. C. M. Montgomerie, in 1797, an infant, and without issue. The father of W. C. M. Montgomerie administered to him, and claimed, amongst other things, the interest of the residuary personal estate, which accrued between the deaths of the testator and W. C. M. Montgomerie: and the Court of Chancery decreed in favour of such claim, upon the

(g) 5 Ves. 335; see also Scott v. Earl of Scarborough, 1 Beav. 154; Brandon v. Aston, 2 Yo. & Coll. (C.), 30.

VOL. II.

(h) 5 Ves. 522, and see Barber v. Barber, 3 Myl. & Cr. 688.

BB

diate bequest,

Where a fund is ground, that the bequest to the grandson was immediate, and given by imme- vested in him for life, and was not devested nor revoked by the diate bequest, with a condi- subsequent clause, the only effect whereof was to postpone the tion devesting it in favour of a actual possession, until the grandsons attained their ages of legatee over. twenty-five.

Where a resi

due is given, so

as to be vested, but payable upon a future contingency, with a condition devesting it.

SECT. XII. Of interest, where a residue is given so as to be vested immediately, but payable upon a future contingent event, either with or without a condition devesting it in favor of a legatee over.

The Court of Chancery has gone one step further in the case of residuary dispositions, and determined that if a residue is given, so as to be vested, but not payable, at the end of the year from the testator's death, but upon the legatee's attaining twenty-one, or upon any other contingency, and with a bequest over devesting the legacy, upon the legatee's dying under that age, or upon 'the happening of the contingency, then the legatee's representative in the former case, and the legatee himself in the latter, shall be entitled to the interest that became due during the legatee's life, or until the happening of the contingency.

In Nicholls v. Osborn (i), Mrs. Powell bequeathed the surplus of her personal estate, which was about 3,000%, to her niece, (being an infant of about seventeen), to be paid at twenty-one, and if she died before twenty-one, or marriage, then she bequeathed it over. Upon the death of the testatrix, one of the questions was, who should have the produce and interest of the surplus during the infancy of the niece. Sir Joseph Jekyll, M. R., decreed, that the infant niece was entitled to the profits, and the interest of the surplus which should accrue from the death of the testatrix, and in the life of the niece, though she should happen to die before attaining twenty-one.

So, in Chaworth v. Hooper (j), a residue was bequeathed to an infant, payable at twenty-one, with a bequest over in case of her dying under that age. The question was, whether, as the infant died under that age, the interest, from the death of the testator to that of the infant, should go to the representative, or to the remainder man. Baron Eyre said, "he could not distinguish this case from that of Nicholls v. Osborne (k). The whole residue is here given to the infant; what is to become of the produce? Where the use would be, if it was a specific thing, or

(i) 2 P. Wms. 419.

(j) 1 Bro. C. C. 81.

(k) Ubi sup.