AVISON v. SIMPSON. [ 48 ] tion occurring in a will; nor can any reasonable distinction be taken between the two cases. The argument in favour of such a distinction amounts to nothing, unless it can be shown that the testator, by the bequest to his next of kin, intended simply to direct his executors to do that which the Statutes of Distribution would have done. for him. But in this case, the effect of the limitation is not that which the Statutes of Distribution would have done for the testator. Here, the direction he has given to his trustees in the event that has happened, is "to pay, distribute, and divide, unto and equally between and amongst " his next of kin; and I know of nothing in the Statutes of Distribution which would produce that effect. Besides, neither Lord COTTENHAM in Withy v. Mangles, nor Sir JOHN LEACH in Elmsley v. Young (1), relies on any such distinction. For these reasons, although this should prove to be the first case in which the question has been so decided upon a limitation in these words in a will, (which, however, although it was alleged in the argument, I cannot at once admit to be the fact), I must hold that by the term "next of kin " in this limitation, the testator intended those persons who, at the time of his decease, should be the nearest of kindred to him in blood, and not those who would have been entitled under the Statutes of Distribution claiming as ab intestato. With regard to the second point, which arose under *Susannah Avison's will, the clause in question must pass the whole of her personal estate and effects. The word "goods " is a very large and comprehensive word; and here the bequest is not of household goods," but "household furniture, goods," and other articles enumerated; and out of the things so given, all her debts are to be paid. I find no residuary gift, unless it be contained in the clause in question; and the words of that clause being sufficiently large to comprehend the whole residuary personal estate of the testatrix, I must hold them to have had the effect of passing it. The answer to the first question will be, that, in the events which have happened, the moiety of the 7,000l. and 2,000l. there mentioned passed originally by the testator's will to his two daughters, Susannah and the defendant Mary Saunders, and to the plaintiff, as the nearest of kindred in blood to the testator at the time of his death, as tenants in common. And the answer to the second question will be, that the same moiety, and the interest thereon arisen since the death of (1) 39 R. R. 353 (2 My. & K. 794). Susannah, now belong, as to two third parts thereof, to the defendant Mary Saunders and the plaintiff, as tenants in common; and as to the remaining third part thereof, to the three persons named in the will of Susannah, as her residuary legatees. treat the gift in question in that will as a bequest of the residue. IN RE POWELL'S TRUST. I Cash of a testatrix at a savings bank, as to which she had given notice requiring payment, and which only awaited her receipt: Held to pass by a bequest of "all her ready money." But sums secured to her on notes of hand payable on demand: Held, not to pass by that bequest, although preceded by a direction for payment of her funeral and testamentary expenses (1). MARY POWELL, by her will, in 1856, bequeathed as follows: After my funeral and testamentary expenses are paid, I leave and bequeath unto" the petitioners, (naming them) "all my ready money, to be parted equally, share and share alike." The will contained various specific bequests of furniture, plate, linen, and wearing apparel, and a gift of 5l. to the executor, but did not (save as aforesaid) deal with the testatrix's personal estate, and did not contain any residuary bequest. The testatrix was illegitimate, and died a spinster. It appeared from the evidence, that, at the time of her death the testatrix was entitled to a note of hand payable on demand to secure the payment of 500l. and interest; a note of hand payable on demand to secure the payment of 100l. and interest; a sum of 951. 15s. 5d. in a savings bank, payment of which she had in her lifetime required by a notice to the savings banksuch notice being to pay the same at a time which had arrived before her decease-and which sum, and the interest then due thereon, might at any time after the expiration of such notice have been received by the testatrix upon demand, and which the testatrix had in fact directed a person to receipt for her at a time before her decease, but which was not received in consequence of such person being unable to go to the savings bank; and a sum of 191. 13s. in the house. The clear balance of the testatrix's estate, after payment of her debts, funeral and testamentary expenses, and the legacy to her executor, was paid into Court, under the Trustee Relief Act, and was now represented by a sum of 6571. 17s. Consols. Mr. C. Hall, for the petitioners, claimed the entire fund in Court. [As to the cash in the house he cited Parker v. Marchant (2). As to the sums secured upon the notes of hand (1) But the expression "money (2) 57 R. R. 327 (1 Y. & C. C. C. may include general residue, see next 290; on appeal, 1 Ph. 356). case.-O. A. Š. AVISON v. SIMPSON. 1858. Dec. 4, 14. WOOD, V.-C. [ 49 ] [ *50 ] In re POWELL'S TRUST. [51] [ 52 ] he contended that the bequest, following after a direction for payment of debts, would pass the whole residuary personal estate.] Mr. Wickens, for the Crown, [contended that Parker v. Marchant rested on special grounds, and cited Langdale v. Whitfeld (1), as showing that neither the sums secured by the notes. of hand, nor even the money at the savings bank, passed by the term "all my ready money "]. Mr. C. Hall replied. (Lowe v. Thomas (2) and Manning v. Pursell (3) were also cited.) VICE-CHANCELLOR SIR W. PAGE WOOD: Judgment reserved. The question raised by this petition relates to the interest of the petitioners in a sum of 6571. 17s. Consols, representing the clear residuary personal estate of one Mary Powell, the testatrix named in the petition, after payment of the funeral and testamentary expenses, and the debts of the deceased. The testatrix, at her death, was entitled to a sum of 500l., secured on a note of hand payable on demand; a sum of 100l., secured on a like note of hand; a sum of 95l. 15s. 5d. in a savings bank, as to which notice had been given by her requiring payment before her decease, so that the money only awaited her receipt; and a sum of 19l. 13s., being cash in her house. The will was as follows: (His Honour read the will as above.) The testatrix appointed an executor; but her will did not contain any residuary bequest. In this state of things, the question I have to determine is, whether all or any of the sums I have mentioned passed to the petitioners under the bequest of "all the testatrix's ready money." It was argued for the petitioners, that a bequest of all a testator's money following after a direction to pay his debts has been held, in many cases, which are well known in this Court, to pass the whole of the testator's residuary personal estate, the general personal estate being the fund out of which the law requires a testator's debts to be paid. But that rule cannot be extended to a bequest of all a testator's ready money, though following after a like direction for payment of debts; for the term "ready money" is a term (1) 116 R. R. 388 (4 K. & J. 426). affirmed, 5 D. M. & G. 315.) 101 R. R. 657 (Kay, 369; (3) 109 R. R. 23 (7 D. M. & G. 55). specifically appropriated to a particular description of money; and the argument of the petitioners must go to this extent, that, by a bequest of all her ready money, after payment of her funeral and testamentary expenses, the testatrix intended to give them her chairs and tables. As to the meaning of the term "ready money," the authorities, most of which were cited in Parker v. Marchant (1), will be found, when examined, to be conclusive. In that case, which came first before Lord Justice Knight Bruce when Vice-Chancellor, and afterwards before Lord Lyndhurst, the term "ready money" was held to comprise, not only money actually in the testator's house, but also all his cash at his banker's, inasmuch as, according to the general usages of society, when a man speaks of his "ready money" he is understood to refer as much to his money at his banker's as to the money in his pocket or in his house. Parker v. Marchant was by no means the first decision to that effect. Others of the same kind are referred to in the judgment. I have no hesitation, therefore, in holding that in this case the money of the testatrix in the savings bank-the 95l. 15s. 5d., as to which notice had been given by her requiring payment before her decease, and which was therefore so much money lying ready for her at the savings bank, as if it had been an ordinary private Bank-passed by this bequest to the petitioners, along with the 191. 13s., consisting of cash in her house. But as to the sums of 500l. and 100l. secured by the notes of hand, the same class of cases which show that cash at a banker's will pass by a bequest of ready money, distinctly confirm the view that a promissory note or note of hand cannot be treated by any stretch of the term as "ready money." As to those sums, therefore, the testatrix must be taken to have died intestate. In re POWELL'S TRUST. [53] STOCKS v. BARRÉ (2). (Johnson, 31-58; S. C. 5 Jur. N. S. 537; 7 W. R. 247.) 66 A bequest of any money which might remain after payment of the testator's debts, may pass the general residue of the testator's personal estate, including the testator's reversionary interest in money charged on real estate, where there is no other disposition of the residue (3). CHARLES EDWARD STANDISH, late a lieutenant on board her Majesty's ship Bonetta, stationed at Rio de Janeiro, made his (1) 57 R. R. 327 (1 Y. & C. C. C. 290). (2) In re Egan, Mills and Penton [1899] 1 Ch. 688, 68 L. J. Ch. 307, 80 L. T. 153. (3) Williams v. Williams (1877) 8 Ch. D. 789. 1859. Feb. 10. WOOD, V.-C. [54] will, dated the 8th of October, 1853, as follows: "Mr. P. Hue, of Rio de Janeiro, has in his possession a bill for 201., drawn by me on George Barker, No. 7, Gray's Inn Square, London. I have also my last quarterly bill. Out of these I desire that my debts on this station may be settled. I request that my eldest brother, Lionel Standish, will discharge my debt to Mr. Joseph Galt, outfitter, High Street, Portsmouth, and any other sums that I may owe in England. I desire that my effects may be sold by auction according to the custom of the service, with the exception of the following: 1st. My writing desk with its contents; 2nd. My watch and chain; 3rd. My swords and both belts which I bequeath to my cousin, Walter Strickland.” Then, after expressing his faith in God, he concluded as follows: "And further, I bequeath any money that may remain after the payment of my debts to my dear nurse, Fanny Barré, as a mark of my love and esteem; and I leave my love to all my relations and friends." The testator died on the 12th of October, 1853, at sea, leaving the defendant, Charles Standish, his father and sole next of kin, him surviving. The testator, when making his will and at the time of his death, was entitled in reversion expectant on the decease of his father to a sum of 3,000l., charged on real estate by an indenture dated 1845. Part of the 3,000l. was required for payment of the expenses of proving the testator's will and divers debts of the deceased. The bill, filed by the sole personal representative of the deceased, prayed that it might be declared, whether the defendant Charles Standish, or the defendant Fanny Barré, was entitled to the surplus. Evidence was adduced, on the part of the defendant Charles Standish, with the view of showing that the testator was not aware of his interest in the 3,000l. down to the time of his death. Mr. Giffard, Q.C., and Mr. Buchanan, appeared for the plaintiff. Mr. Jessel, for the defendant Fanny Barré, contended that the clear surplus of the testator's residuary personal estate, including his reversionary interest in the 3,000l., passed by the bequest of "any money that might remain after payment of his debts," as in Legge v. Asgill (1), and Rogers v. Thomas (2). (His arguments are sufficiently noticed in the judgment.) Taylor, for the defendant Mr. James, Q.C., and Mr. (1) 24 R. R. 51 (T. & R. 265, n.). (2) 44 R. R. 173 (2 Keen, 8). |