an annuity for the life of the legatee; and it was determined to be a vested interest at the death of the testator, and the personal representative of the legatee therefore entitled to the whole sum.

Similar to the case of Yates v. Campton was that of Bayley v. Bishop,(p) with this difference, that the sale of the estate was postponed to the death of a tenant for life. The testator, after devising his lands to his wife for life, directed them to be sold after her decease to pay legacies, one of which (500l.) he directed his trustees to invest in the purchase of an annuity for his son for life, and to permit him to receive it. Notwithstanding the son died before the wife, and consequently before the sale of the property, and an investment of the 500l. in the purchase of an annuity could be made, yet Sir W. Grant decreed the principal sum to the administratrix of the son, upon the authority of the preceding cases.

The last case was followed by Sir Thomas Plumer, M. R., in Palmer v. Craufurd,(q) a case attended with very particular circumstances.. There the testator gave to trustees 3000l. to be invested in their names, on the life of his brother George Craufurd, in the purchase of a government life-annuity, of the value of 3000l., to be received by them, and paid to him every six weeks, for his life; with a condition annexed to the gift, which he performed. George received an annual allowance from the testator, through the medium of the latter's agents in Holland, where George resided; and the testator, after the date of his will, directed those agents by letter to continue the allowance after his death, until his executors had arranged his affairs. He also left a writing without a date, declaratory of his resolution to give such an order to those agents, for George's subsistence, and until the executors declared their readiness to carry into effect the clause in the will respecting him; observing, that by this manner of preventing his death being an inconvenience to George, he the better enabled his executors to make arrangements with the other legatees. The 3000l. were never invested as directed by the will, owing to George's absence in Holland, ill health, and other obstacles, which prevented his appearance at the government annuity-office in this country-an indispensable preliminary to the investment being made.. Up to his death George received his usual allowance; and before that event, the trustees were prepared to have made the investment, had he been able to appear at the office. Sir Thomas Plumer declared, that notwithstanding the circumstances which had occurred subsequently to the will, George took a vested interest in the 3000l. which entitled his executors to receive the money; but that since George, instead of the government life-annuity, had been paid his allowance from the testator's death, which (amounting to 1050l.) was admitted to be equal in value with such an annuity, and in consequence had overdrawn the estate of the testator, the Court was of opinion, that the legacy should be reduced in the latter sum; and it adopted the following arrangement :-Interest was directed to be computed on the legacy of 3000l.; and the 1050l. was to be considered as so much received by George on account of principal and interest.

(n) 9 Ves. 6.

(g) 2 Wils. C. C. 79. 3 Swan. 482. S. C.

4. Legacies are sometimes given to persons generally, with the additional expressions, "to be at their disposal.' Those bequests are considered to be immediate vested interests in the legatees, so as to be transmissible to their personal representatives, although they make no disposition of the property.

Thus in Robinson v. Dusgate,(r) the testator devised lands to B. for life, remainder to C. in fee, he paying 400l.; 2001. of which to be "at the disposal of his wife by will, to whom she should think fit to give the same." The wife died intestate, and the plaintiff, her administrator, claimed the 2001. The Court was of opinion, that the whole interest and property in the money vested in the wife, and that her administrator was entitled to it.

The last case was followed by Sir Thomas Sewell, M. R. in Maskelyne v. Maskelyne,(s) where the testator gave 300l. to his brother James, "to be disposed of by will as he should think fit." Upon a question, whether James had only a power to dispose of the money by will, or took any and what interest in it, the Master of the Rolls declared, that the legacy absolutely vested in James.

So in Hixon v. Oliver,(t) Mr. Oliver bequeathed 300l. to his wife, "to be disposed of as she thought proper, to be paid after her death:" a bequest placed between an annuity to the wife, and a specific legacy of a leasehold house limited to her for life. The wife survived the testator, and died intestate, having made no disposition of the 300l. Lord Erskine determined, that the wife took a vested absolute interest in the legacy at the husband's death, which entitled her administrator to receive it.

The legacy will equally vest in the legatee absolutely, although it be given over in the event of his dying "without disposing of it;" because the absolute interest in the fund having once vested, to which a power of spending or otherwise disposing of it is incident, the executory limitation over of the property, "if the legatee do not dispose of it," is a conditional defeasance, repugnant to the original bequest, and cannot therefore be supported; consequently, the estate of the legatee not being devested, his personal representative will be entitled to the legacy, if it be not received by the legatee during his life.

Upon this reasoning, Sir Thomas Plumer, M. R., decided the case of Ross v. Ross, (u) in which the testator, a native of Scotland, gave to his son James Ross 2000l., payable at twenty-five, or between twenty-one and twenty-five, at the discretion of his executors, with intermediate interest for maintenance; "and in case James should not receive, or dispose of by will, or otherwise, in his lifetime, the 2000l., then it should return, and be paid to the heir entail in possession of the Shandwick estate for the time being." James, after surviving the testator, attained twenty-five, and died intestate before receipt of the money, which was claimed by his administrator, upon the ground that James took a vested absolute interest, which was not devested by his death without having disposed of the fund; the clause purporting to have that effect being repugnant and void. And the Court was of that opinion, and decreed the legacy to the administrator.

(r) 2 Vern. 181. (s) Ambl. 750. (t) 13 Ves. 108. (u) 1 Jac. & Walk. 154. 3 I

VOL. I.

It is observable, in the cases we have just been considering, that the bequests were made in forms, which imparted to the legatees absolute dominion over the property, and amounted to absolute gifts to them of the whole interest in the subjects of disposition. But when a particular estate is limited in the instrument, followed by a declaration that the legatee may dispose of the fund, he will not take a beneficial interest in the capital. He will have a mere power to dispose of it, and no more; because, where a limited interest is expressly given, its enlargement by implication will not be permitted. If, then, the interest of 1000l. be given to A. for life, with a declaration that he may dispose of the principal at his death, the prior limitation will not merge in the general power of disposition; so that A. will take a vested interest for life, with a power to appoint the capital.

Thus in Nannock v. Horton,(x) Mr. Norman bequeathed to trustees 8000l. three per cent. consols, to pay the dividends to his son Robert for life, and after his death to pay and transfer 6000l., part of the capital, to such persons as Robert should appoint by deed or will. The testator, by a codicil, directed that Robert should be paid the dividends for life of 6000l. only, part of the 8000. three per cent. consols, and at his death he should be at liberty to dispose of 4000l., part of the 60000. three per cent. consols, instead of the whole of the latter sum. The question was, whether, under the will and codicil of the father, Robert, took a vested absolute interest in the 4000l. stock, or merely an estate for life, with a power of appointing the capital? And Lord Eldon determined that, under the will, Robert was entitled for life only, with a power to appoint the 4000l. stock; a right which was not varied by the codicil, except as to the quantum of stock over which the power extended by the will.

5. When a legacy is expressed to be given to answer a particular purpose for the benefit of the legatee, which purpose is disappoint.ed, and cannot take effect.(y)

Where a legacy is given to a person to answer a particular purpose, to which it becomes impossible to appropriate it, but from no fault in the legatee, he will be entitled to the money: as in instances of a sum of money being left for the benefit of an infant, as an apprentice fee, and he is never placed in the situation or character of an apprentice; or when a legacy is given to a person to assist him in defraying the expenses necessary to procure priest's orders, and he becomes a lunatic; in each case the legacy will vest at the testator's death, and upon this principal: It is considered that the property was intended for the legatee at all events, and that the mode directed for its application was merely a secondary consideration, and independent of the gift.

Accordingly, in Barlow v. Grant,(z) the bequest was of 30l. to A., an infant, to bind him an apprentice. A. died before attaining a proper age to be placed out an apprentice; and the question was, whether his executor was entitled to receive the money? which depended upon a preliminary question, whether A. took a vested interest in the legacy? The Court, in determining in favour of A.'s (x) 7 Ves. 392. 394. 398. and see "Law of Husband and Wife," 2 vol. pp. 205, &c. 1 P. Will. 149. (y) Vide supra, p. 377. (z) 1 Vern. 255.

executor, necessarily decided that A. took a vested interest in the fund previously to his death.

Similar to the last is the case of Nevill v. Nevill, (a) in which the testator gave 500l. to the eldest son of John Nevill," to place him out apprentice; or, as in the registrar's book," for putting him forth either to law or merchandise." John had a son born after the death of the testator, who claimed the legacy, although he was unfit to be placed out as directed by the will. Yet the legacy was ordered to be paid; a decree which must have been founded upon the legatee's having taken a vested interest in the money at the death of the tes

tator.

So in Barton v. Cooke, (b) Mr. Cowling directed his executors to apply "1001. for the board and education of James Barton, until he were fit to be put out apprentice, and that then they should pay the further sum of 100l. with him as an apprentice fee." It appeared that James attained the age of nineteen, but had not been placed out an apprentice. The question was, whether he was entitled to the legacies of 100l. each; and Lord Alvanley decided in the affirmative, remarking, " that if a legacy be given for benefit of an infant one way, and it cannot be so applied, it may be applied for his benefit in another.(c)

CHAPTER XI.

Of vested Legacies payable out of Real Estate.

HAVING in the last chapter treated of the vesting of legacies payable out of personal estate, the subject next in order is the vesting of legacies payable out of real property, and which will be discussed under the following arrangement :

SECT. I. Where the gift of a legacy or portion is immediate, and the payment postponed until the legatee at

tains twenty-one, or marries.

Legacy contingent so far as it affects the real estate, and vested so far as regards the personal estate.

SECT. II. When payment of the legacy or portion is not postponed on account of the age of the legatee or child, but in regard to the convenience of the person, or the circumstances of the estate charged with it.

Vested, although the legatee or child die before the time of payment.

(a) 2 Vern. 431. ed by Raithby.

(b) 5 Ves. 462. (c) See the case of Lewis v. Lewis, 1 Cox, 162. stated infrà, Chap. XIV. sect. 2. sub-div. 4. See also Hammond v. Neame, 1 Swan. 35. infra.

SECT. I Where the gift of a legacy or portion is immediate, and the payment postponed until the legatee attains twentyone, or marries.

It was noticed in the beginning of the second section of the last chapter, that courts of equity, in their construction upon the vesting of personal bequests make a difference when the words "payable" or "paid," are or are not inserted in the form of the bequest; determining in the first case in favour of immediate vesting, and in the second against it. These courts, however, have adopted the above distinction as a mere positive rule, in compliance with the practice of the Ecclesiastical Court, which in these matters has a concurrent jurisdiction, and not from any conviction of the soundness of the rule. They have, on the contrary, generally expressed a disapprobation of the distinction, even where they have been under the necessity of adopting it. In gifts, therefore, of legacies or portions orignally payable out of, or charged upon real estate, as such dispositions are not within the Ecclesiastical jurisdiction, Courts of Equity have not found themselves obliged for the sake of conformity to adopt the same rule of construction; they have, therefore, required the whole condition, upon which the legacies or portions were given to be complied with, viz. the attainment of the legatee to the age of twenty-one, &c. ; nor do they admit of any exception whether the legacies or portions were made payable at twenty-one, or given at twenty-one, or with or without interest. This distinction, however, must be noticed, that when legacies or portions are charged both upon the real and personal estates, if the legatees die before the time of payment, the legacies or portions will sink into the land, in all cases where they would be held to sink, if the fund consisted of real estate only; and they will be considered vested, with regard to the personal estate, in all cases in which the same would be so adjudged, if the fund consisted of personal property only. And it is immaterial whether the provisions be made by deed or will.

The case of Pawlett v. Pawlett (a) is a leading one upon the present subject. Lord Pawlett settled by deed real property in trustees for a term of years in remainder after his death, upon trust, after payment of his debts, to pay such sums of money and maintenance for younger children, as his Lordship should appoint by will; and, in default of appointment, to raise 4000l. a-piece for each such child, payable at twenty-one or marriage, with maintenance in the intermediate time. Lord Pawlett appointed by will to his two daughters, and only younger children, Susanna and Vere, 4000l. each, to be raised and paid in manner, and at the times, and with the maintenance prescribed by the deed. Both daughters survived him. But Vere died under age, and unmarried, before any part of her portion could be raised; and her mother was her administratrix, who claimed her portion. The question was, whether such claim could be supported, as Vere died under twenty-one, and unmarried. And the Lord Keeper determined in the negative: observing, that "the portion was to come wholly out of the lands, and the personal estate no way subjected or made liable to the payment of it by the will."

(a) 1 Vern. 321. affirmed by the House of Lords,