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Mary should have the 3500l., as that the brother should succeed to the estate; and it clearly appeared that the testator meant to increase his daughter's provision, in the event of Charles's death without issue. It is therefore obvious, that this case is an exception, upon sound principle, to the rule stated in the preceding

section.

The last case was followed by Hutchins v. Foy,(m) where the testator devised his real and personal estates to Thomas Beal for life, remainder to his children, remainder to his sister Martha, for life, remainder to John Beal for life, and afterwards to his children, with remainder, as to a moiety of the real estate, to the defendant Foy in fee," paying out of it, when it falls 500l.;" 50l. of which he gave to Margaret, a daughter of his sister Martha. Margaret died before Thomas Beal, and the remainder to Foy having come into possession, Margaret's administrator claimed the 501.; contending that she took a vested interest in that sum at the death of the devisor, which entitled her personal representative to receive it; and so the Court determined.

The reasons for such decision were these: First, because the remainder to Foy, and the 50l. out of it, vested immediately upon the demise of the testator; and, secondly, because the estate and the charge upon it passed together, so that the devisee took the estate cum onere; for, since it was the testator's intention that Foy should have the estate, it was as much his intention that Foy should pay the money out of it, when the possession came to him, and the word "paying" clearly showed the intent of the testator, that Foy should not have the land unless he paid the money.

So in Lowther v. Condon, (n) a case maturely considered by Lord Hardwicke, in which Mr. Condon, having a son, and also two daughters, Isabella and Diana, bequeathed to each daughter 5001. to be raised and paid out of the rents, or by sale or mortgage of specific lands immediately after his death, together with interest from that period until the legacies were paid to them, 66 or their respective executors, administrators, or assigns." The testator further gave to each daughter 1000l. to be raised and paid "immediately after the decease of his wife," by the means before mentioned, with interest from the wife's death until the money was paid to them," or their respective executors, administrators, or assigns." And the testator declared, that if either daughter died before him, the survivor, her executors, administrators, and assigns, should receive the whole of the legacies; and in such case, the part of the daughter so dying should not cease, or sink into the estate for the benefit of the heir, but should remain and be raised for the benefit of the surviving daughter. Diana, after surviving the testator, died during the life of her mother, and Diana's husband claimed, as her administrator, to have the 1000l. raised out of the real estate, the mother being dead; a claim which depended upon this, whether, notwithstanding Diana died before her mother, the period when the legacy was to be raised, she took such an interest in it, as was transmissible to her personal representative? And Lord Hardwicke decided in the affirmative.

(m) Com. Rep. 716, 723.

(n) 2 Atk. 127.

In pronouncing judgment in the last case, Lord Hardwicke adverted to the distinction, before mentioned, where the time of paying a legacy is postponed, in consequence of the circumstances of the estate, and not in consequence of the circumstances of the legatee But it was unnecessary, in the present instance, to rely alone upon that distinction, in order to give vested interests to the daughters; for his Lordship, as he declared, founded his opinion principally upon the clause in the will, providing against lapse, if either daughter died before the testator; from which he drew the conclusion, that the testator's having shown so decided an intention to prevent the legacy from sinking into the land, upon the happening of the event just mentioned, afforded a very powerful reason for inferring that he did not mean it to sink into the estate, if the daughters survived him. Lord Hardwicke was therefore of opinion, that the clause alluded to afforded a plain indication of the testator's intention, that his daughters should have their legacies at all events, totally independent of the accident of their dying during the life of their mother.

The same Judge made a similar decision in Emes v. Hancock, (0) which in circumstances differs from the preceding authorities stated in this section There Mr. Hancock devised his copyhold estate to his wife for life, remainder to his son Stephen until his grandson Thomas attained the age of twenty-three; at which time he gave the property to Thomas in fee, on condition that he, his heirs, or assigns, paid or caused to be paid to his grand-daughter Elizabeth, 60l. within two years after his attaining twenty-three; but, if he (Thomas) happened to die without issue, then the testator devised the copyhold to his son Stephen in fee, on condition of paying 100%. to Elizabeth, within one year after he enjoyed the estate under the last devise; and upon default in payment by Stephen or Thomas of the 601. a right of entry on the estate was given to Elizabeth, her executors and administrators. Elizabeth, after surviving the testator, married the plaintiff, and lived till after her brother Thomas arrived at the age of twenty-three, but died before the expiration of the two years after Thomas attained that age. The question was, whether the plaintiff, Elizabeth's personal representative, was entitled to the legacy? And Lord Hardwicke determined in his favour.

The case of King v. Withers, before stated,(p) is a direct authority for the vesting of the interest in Elizabeth, notwithstanding she did not survive the two years after her brother Thomas attained his age of twenty-three. Lord Hardwicke observed, "That the testator's appointing two years after Thomas attained twenty-three, for raising the 601., seemed to be done merely for the convenience of the estate." But his Lordship chiefly relied upon the title, which Elizabeth, and her executors or administrators, had at law, under the will, to recover the money. The devise operated as a conditional limitation ;(q) and, in default of payment, she or her personal representatives might have entered upon the estate.(r) The death of Elizabeth within the two years was at law, neither the breach of any condition, nor any excuse for withholding the 601. (0) 2 Atk. 507. (p) Ante, p. 437. (9) See 2 Black. Com. 155. (r) 3 Atk. 322.

But the condition for payment of it subsisted after the testator's death, for the breach of which, the plaintiff, as administrator of Elizabeth, had a legal remedy. Such being the right of the plaintiff at law to the money, a court of equity would neither deprive him of it, nor refuse to grant relief merely because he had a legal title; for the consequence of such refusal would have been, that if the plaintiff obtained a judgment in ejectment, the defendant might have come into equity for a redemption upon payment of the 601; a circuity and multiplication of suits which the Court always avoids.(8) For these reasons, Lord Hardwicke ordered the money to be raised and paid to the plaintiff.

The next case nearly resembles the last, and is another instance, where the charge on real estate was legal, and not merely equitable, as in several of the cases.

In Sherman v. Collins,(t) Mr. Collins bequeathed to each of his daughters, Mary and Ann, 300l., to be paid to them when his son John attained the age of twenty-six, without intermediate interest; and he charged the two legacies upon his real and personal estates, and gave to the legatees a right of entry upon the reality, to hold until the money, with interest from the time it became due, was paid; and after such payment, he devised the real estate to his son John in fee; who attained the age of twenty-six, but Ann and Mary died before John attained that age, they having first arrived at the age of twenty-one. One of them married and left children; the other died unmarried, and bequeathed her legacy to her sister; whose husband and two children claimed both legacies, though each sister died before their brother John attained the age of twenty-six. And Lord Hardwicke decreed in their favour, notwithstanding it should be necessary to resort to the real estate, in aid of the personal fund, which was first applicable to those demands.

We here observe the uniformity of principle which pervades this and the preceding cases. It is obvious that the time of paying the legacies of 300l. was merely postponed, to prevent the burthen of interest falling upon the estate of John, until he attained the age of twenty-six. And when the testator had given this express reason for the postponement, it would have been a very unnatural construction, to infer that the daughters or their representatives should lose the legacies, because the former happened to die before John attained the above age. The legacies, therefore, vested in each daughter, the payment being deferred for the conveniency of the estate, and not in respect of the circumstances of the legatees. Besides the daughters and their personal representatives had the same legal title to recover the legacies, as Elizabeth Hancock and her representatives, in the case of Emes v. Hancock; a circumstance upon which Lord Hardwicke placed reliance, in pronouncing his judgments in both cases.

The observations that have been made, also apply to the case of Hodgson v. Rawson, (u) in which Mr. Hollins devised part of his

(8) 3 Atk. 322.

(t) 3 Atk. 319. (u) 1 Ves. sen. 44. and see Wilson v. Spencer, stated by Lord Hardwicke in this case, ibid. 48. and in 3 P. Will. 172.

real estate to his mother for life, with remainder to William Rawson and his heirs, he and they paying out of it legacies to several persons; the sums to be paid within twelve months next after the mother's decease; and he charged the estate with them accordingly. The mother entered upon the estate, and a month after her death, B. a legatee of 100l. died, whose personal representatives claimed the money, although B. did not survive the mother a twelve month; the period appointed for its payment. Yet Lord Hardwicke determined that they were entitled to the legacy; 1st, because the estate was liable at law to the payment of the legacies; the devise to William being a condition, of which, if broken, the testator's heir might take advantage by entry, but who would hold the estate under the charge. in the will, subject to the legacies; 2dly, because the remainder and the charge upon it vested at one and the same instant, it having been equally the intention of the testator, that the legacies should be paid, as that the remainder-man should have the estate; and lastly, because the postponement of paying the legacies, till twelve months after the mother's death, was not intended to suspend the vesting, but merely as an allowance of a reasonable time to the devisee in remainder, after the estate came into possession, to make the payments charged upon it.

Similar to the last case is Tunstall v. Brachen, (x) where the testator devised an estate to one of his sisters and co-heiresses, paying 100l. a year to his wife for life, and within twelve months after the wife's death to pay several legacies. Some of the legatees who survived the testator, died before his wife; and Lord Hardwicke held that they took vested interests, which entitled their personal representatives to payment of the money; upon, the principle, that the time of payment was only deferred for the convenience of the estate, and that the rights of the legatees were not merely equitable, but available at law.

So in Embrey v. Martin, (y) Mr. Neabon devised his freehold estates to his son John in tail, remainder to his daughter Prudence in tail, remainder to his daughter Elizabeth for life, remainder to her son John Trigg in fee, upon condition that he paid to his sister Mrs. Embrey, 100l. at or soon after his being possessed of the premises; and for non-payment, the estates should be to Mrs. Embrey, &c. John, Prudence, and Elizabeth, being dead, Mrs. Embrey died, but, during the life of one of the persons last named; and the remainder in fee in the testator's estate having become vested in possession, the question was, whether, as Mrs. Embrey died before the legacy was payable, the plaintiff, as her executor, was entitled 'to have it raised out of the real estates devised in remainder to John Trigg? and Lord Hardwicke determined in the affirmative.

It is observable in the last case, that payment of the legacy was merely postponed until the devisee came into possession of the estate charged with it. The conveniency of the devisee was the sole motive for deferring the raising of the money, which was intended by the testator to be received by the legatee or his personal representatives, whenever the remainder-man became possessed of the fund out of which it was to be paid. Similar to the four preceding (x) Ambl. 167, more fully reported 1 Bro. C. C. 124. in a note. (y) Ambl. 230.

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cases, the legatee or her personal representatives, in the last, were entitled to the money at law; the devise operating as a conditional limitation,(z) which, in default of the money being paid when due, authorized the legatee or her representatives to enter upon the estate. Lord Hardwicke therefore, in ordering the 100l. to be paid to the executor of the legatee, acted in conformity with prior authorities; which were acknowledged and followed by Lord Camden in the case of

Manning v. Herbert, (a) where the testator, being entitled to a farm let to a Mr. Taylor, also to a dwelling house, and to great and small tithes of little value, devised to his wife, his house and the lands belonging to it, together with his estate in the occupation of Mr. Taylor, directing that when his son William attained twenty-one, his wife should pay to William 401. a year out of the lands in Taylor's occupation. He then gave to his daughters Jane and Elizabeth, the great and small tithes, and expressed his will to be, that six months after his wife's death William should pay out of the estate which was then in the. occupation of Mr. Taylor, 600l. to Jane and Elizabeth in equal shares; and in so doing the testator gave the whole of his real estate to William in fee; but if either Jane or Elizabeth died before the wife, the survivor was to have the tithes, and only 400l. out of Taylor's lands; and in case of non-payment, a right of entry on those lands was given to both or either of the daughters. Jane survived Elizabeth, but both died before the wife; and Jane's administrator claimed the 400l. which was resisted on the ground, that, as she died before the money was payable, it sunk into the estate. But Lord Camden was of a different opinion, and ordered the legacy to be paid to the administrator of Jane.

The foundation of Lord Camden's decree was, that the legacies not being made payable during the life of the wife, was merely for her benefit; and that the six months after her death was allowed for the convenience of William; in order to enable him to raise the money, within a reasonable time, after he had obtained possession of the estate. All which circumstances showed it to have been the testator's intention, that the surviving daughter or her personal representative was to receive the 400l. at all events. In addition to this, the titles of Jane and her administrator were not merely equitable but legal; a fact, to which Lord Camden (as we have seen Lord Hardwicke to have previously done) attached considerable importance.

În Jeal v. Tichener, (b) Lord Apsley made a like decree, referring to the cases of Hutchins v. Foy, and Hodgson v. Rawson before stated.(c) Mr. Shove devised two houses to his wife for life, remainder to the defendant Tichener in fee, he paying thereout to Henry and Thomas Thornton 201. a piece within three months after the death of his wife. The two legatees, having survived the testator, died before the wife, but she being dead, and Tichener in possession of the houses, the personal representatives of the legatees claimed the legacies bequeathed to them. And Lord Apsley declared, that the money vested in the legatees, so as to be transmissible to their (z) 2 Black. Com. 155. (a) Ambl. 575.

(6) 1 Bro. C. C. 120. in a note. Ambl. 703. S, C.

(c) Ante, pp. 438. 440.

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