In Barlow v. Grant (x), a legacy of 30%. was given to an infant Construction of to bind him apprentice; the infant attained the bequests geneof sevenage rally. teen, and died, having made a will and appointed his executor: Of words and and it was held a good disposition of the legacy, although the phrases. infant died before he attained a competent age to be placed out apprentice. In Cope v. Wilmot (y), the testator directed his trustees to pay any sum, not exceeding 3,000l., for the advancement of the plaintiff in any business, art, or profession, or any civil or military employment: and it was held by Sir Thomas Sewell to be a gift of the money in all events to the plaintiff, either by advancement or in money (z). In Laing v. Laing (a), the testator gave a sum of stock to A., to be paid or transferred to, or settled upon her by his trustees and executors, by such deed as they in their judgment should think most proper, on her attaining twenty-one. A. married in the testator's lifetime, and after his death attained twenty-one. The trustees proposed a settlement upon A. for her separate use for life, and after her death upon her husband for life, and then upon her children. Sir L. Shadwell, V. C., rejected the proposal of the trustees as not consistent with the words of the will, and ordered the fund to be transferred to 4. for her separate use on her separate receipt. life, and after the death of A. and B. to C. 10. In the next place we observe, that a bequest to A. for life, 10. To A. for and after the death of A. and B., to C., does not, without other evidence of intention, by itself, give B. a life interest by implication; for it is a well settled rule of construction, applicable as well to real as personal estate, that where an estate or interest is created by implication, it must be a necessary implication. Thus, in Brown v. Clark (b), George Hoffman bequeathed the interest of one moiety of the residue of his personal estate to his brother, William Hoffman; and after the death of his said brother and his wife, he gave the principal equally to be divided among William's children. William died in the testator's lifetime, leaving his wife, who survived the testator; and the question was, whether the wife was, on that event, entitled to receive (x) 1 Vern. 254; also Burton v. Cooke, 5 Ves. 461. (y) Amb. 704; Isherwood v. Payne, 5 Ves. 677. (z) See the cases cited at the end of the report; see Vol I. Chap. X. on Vested Legacies, sect. VII. sub.- (a) 10 Sim. 315. (b) 3 Ves. 166, or Hoffman v. Clark, S. C.; see also Adams v. Adams, 1 Hare, 537. rally. Construction of the interest for her life by necessary implication; and Lord bequests gene- Alvanley was of opinion that she was not; observing, that it was an absolute gift to the husband of the interest till the death of himself and wife, that the husband's interest during her life would have been transmitted to his executors; but, as he died before the testator, the legacy lapsed. Of words and phrases. 11. "At discretion." The same rule holds in devises of real estate, with this exception, that where the devise is to the heir after the death of the wife, the implication is considered to be clear, that the testator's intent was, that the heir should not take till after her death (c). For cases of legacies by implication, the reader is referred to the preceding section 7 of this chapter. 11. We shall here adduce some instances of bequest to one or more legatees of legacies at the discretion of trustees; or, as they shall think fit. In Wainwright v. Waterman (d), Arnold, being in partnership with Pearkes, and having power under the partnership articles to nominate a person to succeed him, by will directed his executors to carry on the trade, and bequeathed to them his share of the capital, with a power to dissolve the partnership, or nominate any other person to succeed him or them. The testator by codicil desired, that if his executors continued the trade, and his grandson Thomas and John Wainwright attained twenty-one, his executors, or the survivor of them, would nominate Thomas and John Wainwright partners in his place; and the testator bequeathed to his grandsons 4,000l. a piece, payable out of the profits of the trade, so soon as they became partners, but directed such legacies to sink into the estate, if Thomas and John Wainwright died before twenty-one, or declined the partnership. In another codicil, the testator expressed himself thus: "It shall be entirely in the discretion of my executors, whether to appoint Thomas to be a partner or not, any direction in my will or codicil to the contrary notwithstanding; and if they do not think proper to appoint, the legacy given to him to be void." Both grandsons, having attained twenty-one, commenced a suit in equity against the executors, to be admitted partners from the day they attained twenty-one, for an account of the profits (c) Smarthill v. Schollar, 2 Freem. (ed. 1826), 458; Willis v. Lucas, 1 P: Wms. 472; City of London v. Garway, 2 Vern. 572; Upton v. Lord Ferrers, 5 Ves. 806; Dashwood v. Peyton, per Lord Eldon, 18 Ves. 40, 48. (d) 1 Ves. Jun. 311. Of from that period, and for payment of their legacies. One of the Construction of executors stated, that he had always been desirous for their bequests generally. admission in the partnership, but the other refused, under an of words and idea, that the terms of the will and codicil were not compulsory. phrases. But Lord Thurlow, C., was of opinion, that, as there was no "At discredeclaration by the executors, either before or at the time the grandsons attained twenty-one, that they were unfit to be admitted; and there was a difference of opinion among the executors upon the subject, the legatees were entitled to the relief they sought in its full extent. In Wareham v. Brown (e), Sir Anthony Brown bequeathed 4007. a piece to two of his sisters; and to his third sister what his executors should think fit. The Court decreed that the third sister should have 400l. also, if the estate of the testator would afford it to place her upon an equality with her other sisters. In Mr. Raitby's valuable edition of Vernon, it is stated that the point respecting the legacies to the testator's sisters does not appear. But in French v. Davidson (f), where the testator Richard Shaw directed that his executors should pay an annuity of 6007. to Mrs. Bogle French, "unless circumstances should render it unnecessary, inexpedient, and impracticable," Sir John Leach, V. C. was of opinion, that by those words must be meant, if circumstances, in the opinion of the executors, should so render it; and that, if they had come to a conclusion, that circumstances had rendered the payment unnecessary, inexpedient, and impracticable, a Court of Equity could not have controlled their judgment, unless it appeared that they had acted malá fide. In Supple v. Lowson (g), Jane Wright gave the residue of her personal estate to her brother, the defendant, in trust to dispose thereof unto and amongst such of her relations, at such times, and in such manner and proportions, as he in his discretion, should judge most proper. Sir Thomas Sewell, M. R., was of opinion, that the defendant had a discretionary power, and that the relations at large were the objects of the testatrix's bounty, and not the next of kin only. In Waldo v. Caley (h), Peter Waldo bequeathed the residue of his personal estate to trustees and executors, upon trust to pay (e) 2 Vern. 153; see also Lewis v. Lewis, 1 Cox, C. C. 162, supra, p. 1479. (f) 3 Mad 396. (g) Amb. 729. (h) 16 Ves. 206; see also Horde v. Earl of Suffolk, 2 M. & K. 59. tion." phrases. Construction of the interest to his wife for life; enjoining her to co-operate bequests gene- with his trustees in carrying his wishes into execution; and rally. Of words and directing her, with the advice and assistance of his trustees, to lay out annually, during her life, one moiety in promoting charitable purposes, as well of a public as private nature, and more especially in relieving such distressed persons, either the widows or children of poor clergymen or otherwise, as his wife should judge most worthy and deserving objects, giving a preference always to poor relations. Sir William Grant, M. R., decided that the object was charity in general, with a preference, but not confined to poor relations: the distribution to be at the discretion of the wife with the advice and assistance, but not subject to the control, of the trustees (i). 12. Power to invest in secu But where a residue is given to trustees upon trust, to dispose of it at such times in such manner, and for such purposes as they shall think fit, the legacy is void for uncertainty, and belongs to the next of kin (j). 12. Of instances, where a discretion is given to executors and rities at discre- others to invest money on securities. tion. In Forbes v. Ross (k), the testator directed his trustees (whom he appointed executors) to lay out and employ the residue of his estates and effects in the purchase of lands, or upon heritable or personal securities at such rate of interest as the said trustees should judge reasonable. The executors lent the fund to one of themselves on bond at four per cent., when five per cent. might have been made by heritable or government securities; and Lord Thurlow, C., held, that the trustees were at liberty, using their discretion soundly and fairly and honestly, to lend it to any body they might suppose would give a reasonable interest for it, considering at the same time the degree of responsibility of the person to whom it was lent; but though the personal security was within the exercise of their authority, yet that it was wrongly exercised in favour of one of themselves; for wherever a trustee contracted with himself he could not spare himself, and therefore as it appeared that five per cent. might have been made, the trustee must be charged with interest for the money in his hands at that rate. (i) See De Maneville v. Crompton, 1 Ves. & Bea. per Lord Eldon, 359; see Vol. I. Chap. II. sect. v. div. 2, p. 107, and sect. x, div. 2, p. 142. (j) Fowler v. Garlike, 1 R. & M. 232. (k) 2 Cox, 113. But it should seem that unless personal security is expressed Construction of or clearly implied in the authority to the trustees or executors, bequests generally. though the words were general enough to comprehend all secu- Of words and rities, it would not be a sound exercise of their discretion to phrases. invest the funds in personal security. Discretion to rities. Thus in Wilkes v. Steward (1), the will empowered the executors invest in secuto lay out a legacy in the funds, "or on such other good security as they could procure and think safe." The executors swore in their answer, that they had laid out the legacy on good and sufficient security, but did not state what; and Sir William Grant, M. R., was clearly of opinion that the defendants (the executors) had no power to lay out the money upon personal security; that it was like trustees to sell, who could not be justified in selling for any other price than the best price that could be got for the money (m). But where the authority expressly mentions real or personal security, it does not enable the trustees to lend trust money to a trader, upon his bond, by way of accommodation. Thus, in Langston v. Ollivant and others (n), John Ollivant bequeathed 500l. to the defendants his executors, in trust to place out the same upon real or personal security as should be thought good and sufficient, to the use of his daughter Betty for life, and afterwards to her children. The will contained a clause that the trustees should not be answerable for any loss without their wilful neglect or default. Upon the marriage of the testator's daughter with John Langston, the executors lent him the 500l., with other monies of their own upon his bond. At the time of his marriage and of these loans, there was evidence of John Langston being a trader in good credit. He afterwards became bankrupt, and a bill was filed by the infant children against the trustees to make them responsible. Sir William Grant, M. R., was of opinion, that the authority given them did not extend to an accommodation, which was what had there taken place. It was evident that the defendants had, upon the marriage, been induced from relationship to accommodate the bankrupt with this loan, which they had no power to do; and therefore they must be responsible for the loss. (1) Geo. Coop. C. C. 6. (m) See also Walker v. Symonds, 3 Swans. 81, per Lord Eldon and Adie v. Feuilleteau, note, 3 Swans. 84, and the cases in note to Harden (n) Geo. Coop. C. C. 33. |