MARTIN v. WELSTEAD.

L.C. Nov. 6, 7, 8. f } Will-Construction-Residuary Bequest. A testator, after directing his debts, &c. to be paid, bequeathed to his wife his monies, plate, &c. (enumerating several particular descriptions of personal property), and all the residue of his personal estate after payment of his debts, &c., and he directed his wife to give to his executors a bond for securing to them the payment of half the value of the said wines, plate, &c., enumerating several of the above-mentioned descriptions of personal property, but not mentioning the residue of his personal estate. The value was to be ascertained within three months from his death, and the plate was to be a fixed price. The money payable

valued at a

on the bond was for the benefit of his nephews and nieces :-Held, that the bond was to be given for half the value of the property only which was specifically enumerated, and not for half the value of the general residuary

estate.

This suit was instituted for the due administration of the estate of Charles Welstead. He made his will, dated the 3rd of May 1832; and thereby, after directing his debts, except such debts as were charged upon any of his real or personal estates, to be paid out of his personal estate, and after bequeathing several legacies to his nephews NEWERIES, XVIII.—CHANC.

and nieces, and others, continued as follows: "And as to all my wines, provisions, plate,

plated goods, jewels, linen, china, pictures,

books, household goods and furniture, horses, carriages, live and dead farming stock, crops and other effects, and all the rest and residue of my monies, stocks, funds, and securities for money, goods, chattels, credits, and personal estate whatsoever and wheresoever, except my leasehold messuage and water-mill, with the machinery, stockin-trade and appurtenances, &c., hereinafter specifically bequeathed, I give and bequeath the same, after and subject to the payment of my just debts, excepting such as shall be charged upon any of my freehold, copyhold, or leasehold estates, as aforesaid, my legacies, funeral and testamentary expenses, unto my wife Sophia Welstead, her executors, administrators, and assigns, for her own absolute use and benefit, subject nevertheless and upon condition that she my said wife do and shall, within three calendar months after my decease, execute and deliver to my executors hereinafter named a bond in a sufficient penalty, for securing to them the payment of one equal half part of the value of the said wines, provisions, plate, and other articles of personal estate and chattels and effects herein before bequeathed to her, such value to be ascertained as hereinafter mentioned and I declare that the sum of money which shall be ascertained to be one equal half part of such valuation as afore

B

said, and which shall be secured by the bond of my said wife, shall be secured to be paid to my said executors without interest, within one calendar month after the decease of my said wife, and shall be in trust for all and every of my nephews and nieces hereinbefore named, who shall be living at the decease of my said wife, in equal shares and proportions, as tenants in common ;" and he then directed that the valuation thereby ordered should be made by two persons, one to be nominated by his wife, and the other by his executors; and the plate was not to be valued at more than 5s. per ounce. The testator died in March 1832. The executors had a valuation made in compliance with the directions of the will; and in February 1833 the executors took a bond from Mrs. Welstead in a penalty of 10,000l., which recited that the valuation had not been completed in consequence of the whole personal estate of the said testator not having been fully realized, collected and gotten in, and the condition was for the payment by Mrs. Welstead, her heirs, executors, or administrators, within one month from her decease, of the sum of money which should be ascertained to be one equal half part of the said wines, provisions, plate, and other articles of personal estate, and chattels and effects, which, according to the true construction of the will, ought to be included in the valuation.

By the decree of the Vice Chancellor it was declared, that by the will the monies, stocks, funds, securities for money, credits, and other articles of a like nature belonging to the testator, were bequeathed to his wife absolutely; that the property on account of which the wife was to give a bond, consisted of the testator's wines, provisions, plate, plated goods, jewels, linen, china, pictures, books, household goods, and furniture, horses, carriages, live and dead farming stock, crops, and other effects of a similar nature and the valuation which had been made was confirmed: and it was ordered that the bond which had been given by Mrs. Welstead should stand as a security for half the amount of the valuation, namely, 2,0537.

188.

Mrs. Welstead died in May 1847, and a bill of revivor was afterwards filed, and a petition of appeal was presented by some of the parties who were beneficially interested

in the amount to be received from Mrs. Welstead's estate, under the bond given by her to her husband's executors.

Mr. Purvis, Mr. J. Parker, and Mr. Glasse appeared for the appellants, and Mr. Stuart, Mr. Walker, Mr. Elmsley, and Mr. Heathfield, for the respondents.

The question was, whether the interest of the wife was virtually confined to a life estate in one moiety of the residue of the testator's estate: or whether she took an absolute interest in the residue, with the exception of those articles which were specially enumerated, and was required to give a bond for one moiety of the value of those specific chattels.

Michell v. Michell, 5 Mad. 69, was

cited.

Nov. 8, 1848.-The LORD CHANCELLOR. -The question in this case is as to the construction to be put on that part of the testator's will in which he directs that his wife, to whom he had given the residue of his property, is to give a security by bond for the benefit of other members of his family. The language is certainly very obscure and well calculated to raise difficulties; and it is not easy, upon any construction, to satisfy all the words of the will. Now he gives, in terms quite sufficient to pass a general residue, all his property to his wife: but he enumerates certain descriptions of property; for after giving her a leasehold estate absolutely, he gives to her all his "wines, provisions, plate, plated goods, jewels, linen, china, pictures, books, household goods, and furniture, horses, carriages, live and dead farming stock, crops, and other effects." So far he has enumerated certain specific portions of the personal estate. Then come these words: "and all the rest and residue of my monies, stocks, funds, and securities for money, goods, chattels, credits, and personal estate whatsoever and wheresoever." If the question had been whether that altogether amounts to a residuary clause, there can be no doubt in the world it would. It is very unnecessarily elaborating the residuary clause, but it comes to this: he gives all his personal estate, partly enumerating and describing it, and then using general words sufficient to comprehend everything not before enumerated or described. The result, therefore, will be a general gift of the

residue of that there can be no doubt. Then comes the exception as to the leasehold estate which he excepts from the general gift; and then as to all these things which he has described, he says, "I give and bequeath the same, after and subject to the payment of my just debts, except such as shall be charged upon any of my copyhold, freehold, or leasehold estates as aforesaid," (which he has specifically charged upon and directed to be paid out of those estates so charged), "my legacies, funeral and testamentary expenses, unto my wife Sophia Welstead, her executors, administrators and assigns, for her own absolute use and benefit, subject nevertheless and upon condition that she, my said wife, do and shall within three calendar months after my decease execute and deliver to my executors hereinafter named a bond in a sufficient penalty for securing to them the payment of one equal half part of the value of the said wines, provisions, plate, and other articles of personal estate and chattels and effects herein before bequeathed to her, such value to be ascertained as hereinafter mentioned. And I declare that the sum of money which shall be ascertained to be one equal half part of such valuation as aforesaid, and which shall be secured by the bond of my said wife, shall be secured to be paid to my said executors, without interest, within one calendar month after the decease of my said wife, and shall be in trust for all and every of my nephews and nieces hereinbefore named who shall be living at the decease of my said wife in equal shares." Then comes a provision as to the shares which they are to hold, and then comes this direction as to the valuation : "And my will is, that the valuation hereinbefore mentioned shall be made by two persons, one to be chosen by my said wife, and the other by my executors: and in the event of such two persons not agreeing, they shall be at liberty to appoint a third person, whose valuation shall be final and conclusive on all parties interested therein: the plate" (this seems to be a very important provision) "not to be valued at more than 5s. per ounce."

There is here a clause which, standing by itself, would amount to a residuary clause. If the will had been made containing that clause and giving property by that description to any person, that party would be a

residuary legatee. It is not so much amplified as the first gift, still it is a gift in terms which, no doubt, would amount to a residuary clause. There are, consequently, two residuary clauses, that is, two clauses which, taken by themselves, would be sufficient to pass the whole residue of personal estate : by one of which clauses the whole is given to the wife; and by the other of which she is called on, after the value of the things so given shall be ascertained, to give a bond for one half of such valuation: and that bond is to secure money, and the amount is to be payable to nephews and nieces.

:

Now, there are three ways, and only three possible ways, in which a construction can be put on this clause. One cannot possibly be contended for, because it would amount to an absurdity, but still it would be most consistent with the terms actually used, namely, that the first gift is of the whole personal estate, and that the articles enumerated shew that the testator intended that the estate should go as it existed at the time of his death. But let us look at the valuation clause, which, although it is in terms not so ample, yet is equivalent in point of legal effect and the words might admit of a construction, which, however, has not been contended for, and which could not be according to the testator's intention, that all that remained was to be valued, without reference to what was payable out of the personal estate which was the subject of valuation; that valuation was to take place three months after his death, and he directed not that the value shall be put on the plate as part of the residue, and that it was therefore to be converted and applicable as part of the residue, but he directed that the plate was to exist in specie, because it is to be valued at a certain rate not to exceed 5s. per ounce. This is wrought plate, and therefore more valuable than the mere mint price of the silver which may be in that plate: but he fixes himself a maximum of value to be put on the plate. It is impossible to suppose that he intended the whole property to be considered as residue, because he directs one half of the residue to be divided, clearly shewing he intended the valuation to apply to property which was found to exist, and which was to be valued three months after his death (a period much too early for the conversion of the

whole property into money), but shewing, from the mode of valuation, that the plate was to be valued as plate, and not as constituting part of the residue.

Then, under these circumstances, there are three constructions that might possibly be considered as arising out of these words. One would be that you are to take the property as it was found; that whatever the testator had in his possession was to be subject to valuation within three months, and a bond was to be given for half that amount. That is quite impossible, and nobody has contended. for it; but still it is a construction more consistent perhaps with the words used than any other. But that would lead to this absurdity: there being no deduction of debts and other expenses of administration, the widow might be called on to give a bond, for the benefit of collateral members of the family, for a higher amount than the property itself would produce. That could not be thought reasonable: therefore that has been rejected, and has not been contended for. But, still, looking at the words, and seeing how far they are applicable to any other construction, it is not immaterial to observe, that the construction most consistent with the words used is one that cannot possibly be adopted.

Then we have to deal with the other two, one of which is, that it was intended that the proper residue should be ascertained, and that the bond should be given for half the amount of the residue-the residue of course meaning technically, as it does mean, not the property as it was found to exist, but what should remain disposable after the payment of debts and other charges upon it.

The other is that which the Vice Chancellor has adopted, namely, that there was an intention, notwithstanding the general terms used in these two clauses, and although they would constitute residuary clauses as between a residuary legatee and parties claiming against the interest of the residuary legatee, yet as between the parties who are now raising the question under these two clauses, the intention was-not to interfere with the proper residue of money or any other description of property, after deducting those articles specifically described.

Now it is contended by this appeal, that the Vice Chancellor was wrong, and that the bond was to be for the proper residue,

for the money to be distributed after paying all the charges upon it. The objection is, that the Vice Chancellor has decided that that is not the true construction. It appears to me, that certainly many of the objections that apply to the first construction would apply to that construction also; because, if this is to apply in the way described, it would be treating the whole property, not wanted for the purpose of paying the debts, as part of the residue to be dealt with as residue, which, for the purpose of the valuation, was to be considered to be converted into money. It is quite clear the testator did not mean that. How are you to ascertain a residue thirteen weeks after his death? Or if you are to value property for the purpose of the residue, for what reason does the testator limit the scale on which the plate is to be valued? Why, if he considered it all as residue, and meant to divide the residue between the two parties for the benefit of his wife and the other collateral members of the family, for whom she was to be trustee to the amount for which the bond was to be given (and what does it signify whether the plate was to be converted into money, or to be considered as part of the general residue ?), how could it be considered that it was with that object that he fixed the maximum price for the plate? If, on the other hand, he meant the property should exist in specie, to be enjoyed by the wife, then he might very well say, "I give you these particular articles of personal estate, but I mean to a certain extent, which I now fix quoad the plate, you shall be accountable for one moiety to the other members of the family." It was for the protection and benefit of the wife that he fixed the maximum price at which the plate should be valued. If he intended the other members of the family should have half of the residue, it would be immaterial what constituted the residue. The object would be attained by looking to the value of the residue, as it might ultimately have to be divided. These two circumstances, therefore, the period at which the valuation was to be made, and the rule laid down as to the maximum price fixed on the plate, seem to me to put it beyond all question, that he did not mean, in directing the sum for which the bond was to be given, that the bond should be for the half of the residue to be

ascertained in the ordinary way after discharging the prior obligations on it.

If that be so, there is nothing left, but the construction adopted by the Vice Chancellor, and which I think is more consistent with the language used than either of those which I have been considering. Because it is clear that in giving to the wife he does use expressions much more ample-much more descriptive of the intention he seems to have entertained-than he does when he comes to describe the property, the value of which is the subject of the bond. He gives specifically a long enumeration of particular descriptions of property, and then he gives the residue of the estate. When he comes to describe the property, for the value of which the bond is to be given, he goes over again part of the enumeration of the particular articles, but says nothing in words as to the residue of the estate. It is true that he uses words which, if found in a will, amount to a residuary bequest.

That

is perfectly true, if you are looking to see whether the words amount to a residuary bequest or not, as between a residuary legatee and other persons. But as between different parties interested in the residuary bequest, it is clear the first gift was a residuary gift. From that residuary gift, he intends to secure, by means of this bond, certain provisions for other parties. Then, why did he not repeat the same words, or repeat the only words that would be clearly operative to that effect? If he intended to give half the residue why did he not in terms say, the amount of half the residue, when ascertained, is to be secured by the wife's bond for other members of the family? Instead of that, he has enumerated to a certain extent the particular articles specified in the first gift, and then that is to be the amount for which the bond is to be given three months after the testator's death; and he lays down a particular rule by which the value of one specific article is to be ascertained.

Without, therefore, saying that there is not considerable doubt on the language used in the testator's will, I think, looking at the three constructions which it is possible to put, that two are necessarily excluded; and that the only one consistent with the language which the testator has used is the one that has been adopted by

Elizabeth Bree, the testatrix in this cause, by a codicil dated the 31st of August 1841, gave the following legacies:-" To Robert Shank Atcheson, his wife and children, 14,000l. This legacy is in consequence of the unremitting care and attention with counsel of the said Robert Shank Atcheson during the trials and troubles of my blessed child after her marriage. To Captain Robert Gordon, his wife and children, 3,000l. To William Saltwell, his wife and children, 3,000l."

The testatrix died on the 15th of March 1845.

A suit (Whieldon v. Spode) having been instituted by the executors for the administration of the estate of the testatrix, and sums on account of the second of the above legacies having been carried over to "the account of Capt. Robert Gordon, his wife and children," a petition in that suit was presented by Captain and Mrs. Gordon and their two children, both of whom were living at the date of the codicil, and also at the time of the decease of the testatrix, and one of whom was an infant, stating that they were advised that on the construction of the above bequest, they became entitled to the legacy as joint tenants, the parents being together entitled to a third, and each of the two children to a third, and accordingly praying payment to the parents of one-third of the fund in court, and to the adult child of another third, and that the remaining third might be carried to the separate account of the infant.

The Master of the Rolls, however, one * Ex relatione.