of four children which, according to that old course, would have been divided among the four); to the representatives of the deceased child. I do not perfectly understand that case which is quite novel in this respect."(b) It is observable that the cases which have been stated, and referred to are instances where from the terms of the instruments the funds were immediately given to the legatees or donees subject to powers delegated to individuals to alter and fix the amounts of the shares by the exercise of a sound discretion. There was no event, upon which the interests that had vested in the several donees or legatees were to be totally devested upon the execution of the power, except the death of any of them before the appointor, and the appointment being made to the survivors, and comprehending the whole fund. If, however, there be no such immediate gift, the power authorizing a selection of the objects, and the title of the individuals to take is made to arise and entirely depend upon the execution of the power, and there is no limitation to any of them in default of appointment, the legacies or portions will necessarily be contingent until the donee of the power shall have exercised it; as will appear from considering 2. In what cases the vesting of legacies or portions depends upon the execution of powers of appointment. Suppose the interest of a sum of money to be bequeathed to or settled upon A. for life, remainder in trust of the capital for such of the children of A. as he should appoint; and no disposition of the 'fund is made in default of appointment. It is presumed that no child can take a vested interest previously to appointment by A.; because, until the power be executed, the objects of the bequest or settlement are uncertain; no particular individuals of the descript class can make out a title under the original instrument; or according to the expressions of Lord Hardwicke, "there is no designation to take under the will, but such of the children as A. should appoint; and no person can be ascertained under the will, until A. has made such appointment.(c) Accordingly in the Duke of Marlborough v. Lord Godolphin, (d) Charles Earl of Sunderland, bequeathed by will and codicil 30,000l. to his wife for life, and after her death to be divided and distributed to and among such of his children, and in such manner and proportion as she should appoint, and for no other purpose. The Countess executed her power by deed and will, as she was enabled to do; and by the latter instrument she appointed to two of the children, John Spencer and Lady Morpeth 17,000l. of the trust-fund. These two children died before her, and consequently their shares became lapsed; and to whom they belonged was the question? On the one hand, they were claimed by the representatives of the testator's residuary legatee, and on the other they were claimed by the representatives of John Spencer and Lady Morpeth, as having vested in those two persons under the testamentary appointment; or, if not so entitled, then the money was claimed by the surviving children and the personal representatives of those who were dead, on the alleged ground that all the children, who outlived the testator, took vested (b) 1 Ves. & Bea. 92. (c) 2 Ves. sen. 74. (d) Ibid. 61. 74. 81. see also p. 208. of the same book, and Ambl. 365. interests in the whole property under his codicil, subject only to be devested as to the proportions by the exercise of the power by the Countess; the execution of which having failed in part by the death of John Spencer and Lady Morpeth before the Countess, the appointor, the 17,000l. were distributable in the same manner as if no appointment had been made, viz. among surviving children and the representatives of those that were dead. But Lord Hardwicke determined in favour of the representative of the testator's residuary legatee, and he disposed of the other claims as follows: With respect to the title of the representatives of John Spencer and Lady Morpeth, under the testamentary appointment; he declared it to be without foundation, for the reasons stated in a preceding chapter which treats of" lapsed legacies."(e) And in regard to the claims of the surviving children, and the representatives of those who died before the appointor; to an equal distribution of the 17,000l. upon the idea of that sum having been vested in all the children under the codicil of Lord Sunderland, and not devested by the appointment, in consequence of the two appointees dying before the appointor, Lord Hardwicke observed, that the codicil gave no interest to any of the children appeared from the words of it, the gift and distribution being to and among such children as the Countess should appoint. He was therefore of opinion that there was no gift to the children otherwise than as they might take by the execution of the power,(f) hence it followed, that, as no interest in the fund vested in any child prior to appointment, and the two shares bequeathed to John Spencer and Lady Morpeth, became eventually unappointed by their deaths before the appointor, neither the surviving children nor the representatives of the two deceased could make a title to them: not the former, because there was no appointment in their favour, nor the latter because the two persons, in whose rights they claimed, never took any interests capable of transmission; the only person therefore, to whom the shares could possibly belong, was the personal representative of the residuary legatee named in the will of the Earl of Sunderland.(g) If then, as we have seen, children will not take vested interests in a fund, prior to appointment, limited in remainder to such of them as A. shall appoint, and there is no limitation over to them in default of appointment; it seems to follow, that the determination must be the same, if the power be restricted to such younger children as A. shall appoint.(h) But if in the last stated case of the Duke of Marlborough v. Lord Godolphin, the 30,000l. had been given over to the children of Lord Sunderland in default of appointment by the Countess, it is conceived that the determination of Lord Hardwicke would have been in favour of the surviving children, and the personal representatives of John Spencer and Lady Morpeth; since, from the effect of the limitation over, all the children would have taken vested interests in the whole fund, subject only to be devested upon execution of the power; and as the appointment failed to the extent of 17,000l. those interests would have been devested; a circumstance, which, according to the principle of Doe v. Martin, and the other cases before stated and referred to, would have entitled the (e) Chap. VIII. sect. 5 p. 337. and see 2 Ves. sen. 75. (f) 2 Ves, sen. 74. (g) Ibid. 81. (A) See 1 Ves, sen. 210. surviving children, and the personal representatives of Mr. Spencer and Lady Morpeth to a distribution of that sum among them. SECT. VII.-As to vesting generally. 1. Instances of vested interests not being transmissible at the death of the legatees. It may happen that the interest in a bequest shall be so vested in a legatee, as from the nature and circumstances of the gift it may be considered to be personal, and therefore determine with his life. A case of this kind occurred in exparte Davies, (i) in which Mr. Cottrell devised his real and personal estates to his wife, during his son Henry's minority (which minority he directed should cease on the 1st day of November 1805,) upon condition that she should find his son with suitable education, support, and clothing; and after the determination of his son's minority, he gave him a moiety of his income. The testator then directed, that upon his wife's death, (to whom he had given parts of his personalty for life,) the whole of his property should belong to his son; but if he died during minority, the whole was to rest with his said wife during her life. He also appointed guardians and trustees for his son, in the event of his wife dying while his son continued a minor; an event which happened; but previously to it she married the petitioner Davies; who, as her administrator, claimed such interest in the testator's estate during the infancy of the son, as his late wife would have been entitled to, had she continued alive during the whole.of that period. But the Master of the Rolls determined against the claim. The reason for this decision appears to have been the intention of the testator manifested upon his will. It would have been a very extraordinary intentionto impute to this testator, as against his own son, that he meant to give the interest of his fortune to any stranger who might happen to be the executor or administrator of the widow. It was quite clear that the testator only intended the interest for her, provided she continued to live until her son attained twenty-one, and should be in a situation to find him with suitable education, maintenance, and clothing. He confides that trust, as he expresses, to his said wife and to no other person. But contemplating the possibility of her death during his son's minority, the testator provided for that event by appointing for him guardians and trustees; an appointment, which would have been useless, if the wife had taken beneficially an absolute vested interest in the produce of the son's fortune until he attained twenty-five; for then those trustees would have had nothing to manage; the produce would have been under the controul of the wife's personal representatives, and the son would have been at their mercy for his education and maintenance, although those two objects appear to have been the principal, if not sole, motives of the gift to the wife during the minority of her son, and for which guardians and trustees were specifically appointed in the event of her death before the son attained twenty-five. This intention of the testator was further apparent from the bequest of the whole property to the wife for life, if his son died under twenty-five: a limitation, which negatived any intent that she should take a beneficial interest in the produce of the estate before the happening of that (i) 6 Ves. 147. event, viz. during the son's minority. Under these circumstances, the Master of the Rolls was of opinion that the administrator of the wife had no title. Upon similar principle the decision in the more simple case of Neal v. Hanbury,(k) was founded. There Mr. Neal bequeathed 51. a year to his nephew Thomas, (not naming executors or administrators), to be paid half yearly during the life of his wife on condition that he behaved himself civilly to her. Thomas died, and his administratrix claimed the annuity during the life of the testator's .widow. But his demand was negatived by the Master of the Rolls, who said the bequest was personal to Thomas, which appeared from the condition requiring his civil deportment towards the widow, and could not be observed after his death. The annuity therefore was not transmissible to his personal representative. 2. As to the word "survivors" being construed the same as "others." Upon this subject, Lord Eldon made the following remarks: "The difficulty (he observes) that has always been felt to apply the term survivors' to persons who may not be alive at the time when the distribution of the fund is made, has been met by presuming that the testator intended those individuals not then living, but who might come into existence before the distribution; construing the word survivors' as "others' to take in all who should come into existence before that period."() The same doctrine equally applies in relation to persons who happen to die previously to the time when the fund is payable, when the will shows the intention, that the interests should vest in those persons at a particular period, which they survived. In order to illustrate this remark- Suppose a bequest to the testator's children, A., B. and C., to be paid at twenty-one, but if B. or C. died under age, then to the two survivors; and if two of the legatees. died before twenty-one, the whole to the surviving child; and if the three died under that age, the whole to go to D. and E. Should B. die after attaining twenty-one, and A. afterwards under that age, leaving C.; although C., as the only surviving child at the death of A., when his share became payable, would be literally entitled to the whole of it; yet, since upon B.'s attaining twenty-one, the will showed the intention to have been that all B.'s interests under it should vest, the limitation over to survivors, in the event of one dying under twenty-one, would be construed as if expressed, "to the others of them:" a construction which would vest a moiety of A.'s proportion in B., although B. died before A., and consequently entitled B.'s personal representative to a half of that share. Such was the case of Wilmot v. Wilmot,(m) in which Mr. Wilmot bequeathed to his son Andrew one third part of his residuary estate, to be placed at interest for his son's benefit, with a declaration that his son should not be put into possession of it before twenty-five. The remaining two-thirds the testator gave to his two daughters, Mary and Sarah, to be laid out at interest for their advantage, but possession not to be delivered to them previous to their ages of twenty-one. And if either of them died under twenty-one, her third (k) Pre. Cha. 173. (1) 14 Ves, 578. (m) 8 Ves. 10. part was to be equally divided between the two surviving children; but in the event of the death of two children, the whole was to devolve to the surviving child. And if the three children died before twenty-one, the whole was to go to the testator's brothers, A. and B. Mary attained twenty-one, and received her share; she afterwards married, and died in the lifetime of Andrew and Sarah, and of her husband, who was her administrator. Andrew then died under twenty-one; consequently Sarah was the only surviving child at the period when Andrew's share became payable under the limitation over, and as such, she and her husband claimed the whole of it; a demand resisted by the administrator of Mary, who claimed in her right a moiety, upon the principle that all the interests given to her by the will vested upon her arriving at the age of twenty-one; a proposition which necessarily included what she might eventually become entitled to receive, if either her brother or sister did not live to the periods at which their shares were made payable. And of that opinion was Lord Eldon, who, in deciding in favour of the administrator, thus expressed himself: "It must be argued, that the word surviving' means the same as other,' or 'living at the age aforesaid.' In the clause in which the gift over is made, it was never meant that any portion should be taken; it was to be either the whole or none. I think they are right in contending that this is vested." 3. Instances have occurred of sums of money being directed to be laid out in the purchase of annuities for legatees during life; and in consequence of their deaths before the money was so invested, questions have arisen between their personal representatives and the persons entitled to the fund to which that money belonged; the former claiming the gross sums, as having vested in the legatees at the death of the testators; and the latter insisiting that the bequests were of annuities only, and therefore, since the legatees died before the money was so invested, it ought not to be taken out of the general estate. It is, however, settled, that when it is clearly ascertained to have been a testator's intention that a gross sum was to be sunk in annuities for the benefit of a legatee, and not the interest of it alone given to him for life, he will take a vested interest in the principal, immediately upon the death of the testator, which will entitle his personal representatives to the money, although he happen to die the day after the testator's decease; and upon this principle: the gift to or in trust for the legatee being of the absolute property in the capital, and not abridged by the mode of enjoyment prescribed by the testator, entitled the legatee to the money; and a court of equity, at the suit of a legatee so circumstanced, will order it to be paid to him, and not to be laid out in the purchase of an annuity. In Yates v. Compton, (n) the testator directed his executor to sell his real estate, and with the proceeds, together with his personal property, to purchase an annuity for the life of Jane Styles. Jane died before the annuity was purchased, and even before the lands were sold, and yet her administrator was held to be entitled to the money. So in Barnes v. Rowley,(0) a legacy was given to be laid out in (n) 2 P. Will. 308. 311. (0) 3 Ves. 305. |