or marriage: Provided that if all his three daughters should die before their legacies should become payable, then the mother should have the whole. The testator's widow married the defendant; the two eldest daughters died under age, and unmarried; and the youngest attained twenty-one. The question being, whether she was entitled to the whole, or only part of the 900l.? Lord Macclesfield, C. decided that she was entitled to the whole. Again in Harman v. Dickenson,(i) the testator made a bequest in favour of his two daughters; and, if one should die without issue, then to the surviving daughter and her issue. One of the daughters married, and died, leaving issue; and then the unmarried daughter died; and Lord Thurlow, C. determined that the money went to the issue of the married daughter, although she did not survive her sister. To these the case of Hill v. Smith,(k) may be added. There William Hill bequeathed to his son William 3000l. three per cent. consols and reduced, the interest of which was to be appropriated to his maintenance and support, under the direction of the trustees named in the will, whom the testator appointed trustees of his son, until he attained twenty-four. The testator then bequeathed the residue of his personal estate to be sold, and the produce to be invested in the funds, and the interest thereof paid to his wife Betsy for life, if she remained a widow; and after her decease or marriage, he bequeathed the said stock and interest arising from his residuary estate unto any child or children he might have by his wife Betsy, equally to be divided between them that attained twenty-one; the survivor of his children to possess what was there bequeathed to the other; and the testator added; "but should not either of my children attain the age of twenty-one years, or live to possess what is here bequeathed to them, I then further will and bequeath unto the children of my aforesaid sister, Ann Pashley, widow, by her late husband Robert Pashley, the 3000l. stock in the three per cent. consols and reduced, left to my son William on their attaining twentyone, equally, &c.; the interest on which my said sister may receive during her natural life, &c." At the date of his will, the testator had two children, the plaintiff his only son by a former wife, and by his second wife a son, who died in infancy during the testator's life. After the death of the testator and his widow, the plaintiff, having attained twenty-four, filed his bill against the executors for a transfer of the 3000l. stock, and the question was, whether, in the events which had happened, he was entitled; the children of Mrs. Pashley contending that, in the event of the testator's leaving no children by his second wife, who should attain twenty-one, the provision for his son by his first wife was to be divested. But Sir Thomas Plumer, M. R. thought otherwise, being of opinion that, although the intention was not accurately expressed, the testator having bequeathed legacies to each class of his descendants, intended that the survivor should take the whole, in preference to collaterals; and his Honour accordingly decreed the plaintiff entitled to the 3000l. stock, and the residue of the testator's personal estate. In the preceding cases the inference of intention was considered (*) 1 Swanst. 195. (i) 1 Bro. C. C. 91. by the courts as clear in favour of survivorship; but unless it be clear, although there may be some ground of inference, the implication I will not be admitted. The case of Bargrave v. Whitwicke,(l) is an instance of this. There the testator bequeathed to his two daughters 600l. a piece, to be paid at twenty-one; and he gave the residue of his personal estate to his son; and declared that if either of his said children should die in their minority, the survivors should be heirs in equal proportion. The son died young; and the Court thought that the residue was not subject to any contingency or survivorship, but the interest in it vested in the surviving daughters, whether of age, or not; and confined the words divesting the interest of a child dying under twentyone, in favour of the survivors to the two sums of 600l. given to the daughters. In Taniere v. Pearkes, (m) where the gift in a French will was to F., and at her death in equal portions to her two daughters, "a leur deces, a leur enfans," and one of the daughters died without children, it was held that the children of the surviving daughter took only their mother's share; there being no words, which could carry the daughter's share to the surviving daughter or her children. 2. Of instances of implied bequests, where a provision is given out of a fund to a legatee, until a certain event; (e. g.) until the age of twenty-one, or marriage; and then no further bequest is added. Thus in Peat v. Powell, (n) Giles Powell gave the residue of his real and personal estate to his executors, in trust for his younger son Giles, till he should attain twenty-one ; and then directed that the trust should cease. Giles the son attained twenty-one; and Lord Keeper Henley decided that the testator intended Giles should take the whole beneficial interest in the residue; and that the bequest was the same, as if the testator had said, "I give the residue of my estate to trustees in trust for Giles till twenty-one, and then to Giles and his heirs." Again in Hale v. Beck, (0) Elizabeth Hale bequeathed 300l. to trustees, in trust, after the death or second marriage of Anne Hale, to pay the interest to the plaintiff Anne Hale her daughter, an infant, in trust for her till she came to the age of twenty-two years; and Lord Northington, C. determined, though the legacy was expressed to be only given in trust during infancy, yet that Anne Hale, the daughter was entitled to it absolutely. So in Atkinson v. Paice,(p) the testator bequeathed the sum of 1000l. three per cents. to his executors, in trust to pay the dividends to the use of his niece Elizabeth, and her daughter Ann, during their lives, and the life of the survivor; and in the event (which happened) of Ann Vaughan not having lawful issue, the testator directed the stock should be transferred "in trust to J. F. Little, till he comes of age.' "J. F. Little attained twenty-one in the lifetime of Elizabeth and Ann Vaughan, and died. After the death of Elizabeth and Ann Vaughan, the executrix of J. F. Little claimed the 1000l. three per cents and the question was, whether she were so entitled, and Lord Thurlow determined that she was, the testator intending to give Finch. Rep. 436. (m) 2 Sim. & Stu. 383. the fund to the child, and the trust given till then, was only to point out the mode. 3. Of instances of implied bequests, where a provision or partial interest out of a fund is given to a legatee, until a certain event(e.g.) until the legatees attain twenty-one, or marry: and if that event does not happen, the fund is given over, there being no express gift of the fund itself to the legatee, in case the event does happen. In such case the implied bequest to the legatee, in the latter event, will be supported. Thus in Crowder v. Clowes, (q) the testator, having created a term of years for the payment of debts and legacies, bequeathed to his niece 1000l. to be paid immediately after his death, "in case she should happen to be then married;" but if not, then he gave the interest of the legacy to her for life, or "until she should be married; but if she died unmarried, he directed the legacy to lapse for the benefit of the person entitled to his real estate. By a codicil he gave to his niece 2001. in addition to what he had given her by the will. The niece was unmarried at the death of the testator, but married soon afterwards, and then claimed the legacies and Lord Alvanley, M. R. decreed that they must be raised; being of opinion, that the testator meant to give her the legacies when she married; and his Lordship observed, that unless the implication were unavoidable from the testator's having given the legacy over if she died unmarried, he could not supply it. Again in Wainewright v. Wainewright,(r) Thomas Wainewright bequeathed the residue of his personal estate to his executors, in trust to pay 201. yearly, out of the interest, for the maintenance and education of Thomas Wainewright, (the testator's great nephew,) until he attained twenty-one; with liberty to them at their discretion to apply 2001., part of the capital for his benefit during infancy. But if Thomas Wainewright died under twenty-one, then the residue, with the accumulations, was bequeathed over. The testator's great nephew attained twenty-one, and filed his bill, claiming the residue of the personal estate, contending, that, although there was not any express gift of the residue, there was a necessary implication arising from the will, that the testator intended he should be entitled to it upon attaining twenty-one. And Lord Alvanley, being of opinion that the inference of intention was necessary and indubitable, decreed accordingly. So also in Goodright v. Hoskins,(s) John Hoskins bequeathed certain leasehold premises unto his son Richard, until his son Thomas should attain his age of twenty-one years, and no longer; but in case the said Thomas Hoskins should die in minority, then the testator bequeathed the said leaseheld premises to John, or Richard, sons of the said Richard Hoskins, or either of them attaining twenty-one. And the testator desired the said premises might be quitted and delivered up, as aforesaid, by his son Richard accordingly. Thomas, the testator's grandson, upon the death of the testator, entered into possession, and attained the age of twenty-five; when the question arose, whether he was absolutely entitled, or whether the leasehold, upon Thomas's attaining twenty-one, became part of the (9) 2 Ves. jun. 449. (r) 3 Ves. 558. (8) 9 East, 306. undisposed residue of the testator's personal estate; and the Court were clearly of opinion, that Thomas was absolutely entitled; Lord Ellenborough observing, that there was a strong implication from the words of the will, that the testator meant Thomas should have the premises, when he attained twenty-one; and his Lordship particularly remarked upon the direction that the premises might be quitted and delivered up as aforesaid. The rule of construction is the same in devises of real estate. In Wight v. Cundall,(t) Lord Ellenborough cited the case of Tomkins v.Tomkins, mentioned also by Lord Mansfield in Goodtitle v. Whitby,(u) wherein the devise was to the testator's brother, in trust for his eldest son B. till he should attain twenty-one; and if he should die before twenty-one, then over; and the Court held the age of twenty-one to be no limitation of B.'s interest, but only a limitation of the trust during his minority; and that B. took the whole by implication. 4. Instance of implied bequest; the fund being directed to be paid to an individual for the purpose of making a partial application for the benefit of a third person, and no express gift of the surplus. The legatee takes the fund absolutely, subject to the trust for the partial purpose specified. Thus in Hamley v. Gilbert, (x) the produce of the sale of the testatrix's real and personal estate was directed to be paid by her executors to her niece, Elizabeth Garnett Hamley, to be laid out and expended by her, at her discretion, for or towards the education of her son, Francis Gilbert Hamley, the testatrix's godson, and that she should not at any time thereafter be liable, and subject to account to her said son, or to any person whatever, for the disposal or application of such residue, or any part thereof. Among other legacies, by codicils, the testatrix gave a legacy of 200l. to E. G. Hamley. After the testatrix's death the bill was filed by E. G. Hamley, and her husband, claiming to be entitled to the residue, subject only to the application of such part, as she in her discretion should think fit, for her son, who was an infant. Sir Thomas Plumer, M. R. after remarking upon the difficulty of the case, and citing Nevill v. Nevill,(y) Barlow v. Grant(z) Barton v. Cooke, (a) and Hammond v. Neame, (b) and observing that all of them differed from the case before him, decided that Elizabeth Garnett Hamley was entitled, subject to a trust to apply a part to the education of her son, which should be liberal, and so much as the Master might think proper to be set apart for that purpose. The case of Thurston v. Essington, (c) in some respects resembles the last there the testator directed the residue of his personal estate to be laid out in lands by his wife, and settled upon his two sons; and directed that his wife should receive the rents and profits of all his estate until his children should attain twenty-one, and to maintain his children as she thought convenient; and when they came of age, she should not be liable to give them any account of the rents and profits received by her. The interest of the securi (t) 9 East. 404. (u) 1 Burr. 234. (y) 2 Vern. 431. (x) 1 Jac. 354. (b) 1 Swanst. 36. Mr. Jacob after his report of the last case, VOL. II. Rr ties, during the minority of the sons, amounted to about 4000l. Upon a bill filed by them for an account, it was insisted that the above clause only applied to the rents and profits of the real estate, which were about 700l. per annum, and more than sufficient for their maintenance; and that all the money, without distinction of principal and interest, was directed to be laid out in lands for the benefit of the sons. But Lord Macclesfield dismissed the bill with costs; declaring, that the interest money was by the will given to the mother, and not to the son; which decree was affirmed on appeal to the Lords.(d) 5. Of instances of life interests implied. : In Hammond v. Neame,(e) Austin Neame bequeathed stock to a trustee, upon trust to pay the yearly dividends into the hands of the testator's niece, Mary Hills Hammond, for and towards the maintenance, education, and bringing up of all and every the child and children of the said M. H. Hammond, until he, she, or they should attain twenty-one, and to transfer the stock unto and among them equally and for default of such issue, upon trust to transfer the same unto and among the testator's other nephews and nieces, (describing them,) living at the decease of M. H. Hammond; and the testator provided that the first half-yearly interest of the said stock next after his (testator's) decease should go to his residuary legatee, Thomas Neame. Upon the death of the testator, his niece, M. H. Hammond, had not any children, but claimed the dividends of the stock, after the first half-year, during her life, or until she should have a child who should attain twenty-one. It was contended on her behalf, that she and her children (only through her) were the objects of the testator's bounty: that if the payment were to be suspended until the birth of a child, the gift was contingent, and, the residuary legatee would be entitled to the produce in the interim, a construction inconsistent with the bequest of the first half-year's dividend; and that the bequest over was not to take effect until her death; and that, therefore, it was apparent the testator believed that during her life the dividends were disposed of, and he had given them to no person but her. And Sir William Grant being of that opinion, decreed the plaintiff entitled to the dividends. So in Bird v. Hunsdon, (f) John Hunsdon bequeathed the residue of his personal estate to be invested in government security, and proceeded thus: "the interest to be paid duly to bring up and educate Mary Morris, daughter of, &c ; and Samuel Seabrook, her uncle, to be her guardian; and the said Mary Morris to have the said interest to maintain her so long as she lives single, and no child; and when it shall please God to call her, that money shall come to my brother's and sister's children." Mary Morris attained twentyone, and married John Bird (the plaintiff,) and afterwards had a son; and the question was, whether, in the events that had happened, her interest in the residue ceased, or whether she was entitled for life. And Sir William Grant, M. R., was of opinion she took a life interest, but no more than a life interest. His Honour seems to have (d) Lords Journals, Vol. II. 23. 197. (e) 1 Swanst. 35; see Sir Thomas Plumer's observations on this case in Hamley v. Gilbert, 1 Jac. 359. (f) 2 Swanst. 342. S. C. 1 Wils. 456. |