confess judgment in the sum of 2,4007., as a further security, but with a stay of execution for six months. That in the mean time, viz. in February, 1817, a commission of bankrupt was issued against J. A., and he was declared a bankrupt;—that the mortgaged premises were sold by the trustees for 7007.;-that R. Cook, on behalf of the trust estate, proved under the commission the sum of 5797. 12s. 8d., being the remainder of the 1,2007. with interest, and the costs of the sale, and received two dividends;—and that in consequence of the said sum of 1,2001. having been received by J. A., in manner as thereinbefore mentioned, the testatrix's estate had sustained a total loss of 3901. 12s. 10d. The Master further reported specially, that there had been another small loss occasioned to the estate through an omission of the trustees to re-invest certain stock immediately, which had been sold, and the produce for some time placed in the hands of their bankers.

The cause coming on for further directions on the report, the principal questions were-1st. Whether the legacy to A. C. Bone had lapsed, by her death during the life of the testatrix. 2dly. Whether the co-trustees were chargeable with the losses which had been occasioned to the trust estate. 3dly. If they were so chargeable, whether the loss was a debt bearing interest.

Fonblanque and Duckworth for the plaintiff.

Combe, for W. S. Clarke and J. C. Clarke, incumbrancers on the plaintiff's share, in the same interest.

1st. The legacy has not lapsed. Sibley v. Cook (a), Bridge v. Abbott (b), Darrell v. Molesworth (c). In the first case, Lord Hardwicke laid down two conditions as necessary to prevent a legacy from lapsing: first, that

1824.

BONE

v.

COOK

and others.

there should be a clear intention expressed, that it should not lapse; secondly, that it should be given over to some other persons, in the event of the first legatee dying before it should be payable. Here both conditions have been complied with. None of the cases is in precisely the same circumstances with this. The addition of the provision, that in case of the death of any of the legatees before their legacies should become payable, the legacy should go to the children, distinguishes this from, and makes it much stronger, than the common case of a direction that it should go to the executors and administrators, which would not prevent a lapse. In this case, there is an express substitution. 2dly. The trustees have been guilty of breaches of trust, and therefore they must be charged with the losses which the trust estate has incurred through their default: 3dly. and with interest.

The LORD CHIEF BARON expressed an opinion against allowing interest, on account of the smallness of the balance.

Martin, H., and Beames, for the co-trustees.

Simpkinson, for the assignees of J. Attfield, in the same

interest.

Bridger, for John Jelley, also in the same interest.

The legacy has lapsed. To take a case out of the general rule of construction, the intention must be clearly and explicitly stated on the face of the will. Maybank v. Brooks (a), Elliott v. Davenport (b). In all the cases cited on the other side, the intention that the legacy should not lapse was manifest. It is not so here. Sibley v. Cook, the decision turned very much also on the words "before the same become due and payable;" and unless the construction there put upon them had been

In

adopted, those words would have been totally unintelligible and ineffectual. The same observation applies to Darrell v. Molesworth. But the necessity of that construction does not exist in the case before the Court, because it is very differently circumstanced. In Sibley v. Cook, there was no tenant for life; in this, there is; and in consequence, the words of this bequest can be satisfied by another, and a grammatical construction. There, the words mentioned, to have any effect, could only apply to the death of the testator; here, the words properly apply to the death of the tenant for life, and not to that of the testatrix, who only meant to treat the legacies as vested interests, from the time of her own death. This distinction was taken in Corbyn v. French (a). 2dly. As to the misapplication of the funds, the trustees must be bound by the conclusion to which the Master has come.

Fonblanque, in reply. The circumstance of there being a mesne estate does not affect the question.

ALEXANDER, L. C. B. In this cause, there are only two questions: the one as to the construction of the will; the other, as to the liability of the trustees. With respect to the first, I have a very clear opinion upon it; I think that this is a lapsed legacy. [His Lordship then stated the clauses of the will, of which the construction was disputed, and proceeded.] One of the children of Elizabeth Bone died unmarried, in the life-time of the testatrix: and the question has been raised, whether in consequence of that event, the legacy to that child followed the common rule; that is to say, became lapsed, or should go by force of the last-mentioned clause, to her executors or administrators, as part of her personal estate. If the Judge should think that it did not lapse, then the question

I

(a) 4 Ves. jun. 418,

1824.

BONE

v.

Соок

and others.

Exchequer Chamber, May 11th.

1824.

BONE

V.

Cook

and others.

would naturally arise, who would be entitled to take it; but as I am of opinion that it does, that question does not present itself. I do not think it has been very confidently contended, that if it had not been for this particular provision," and in case of the death of any of the said legatees before their legacies should become payable, then the said testatrix willed and directed, that the legacy of each of them dying should go to, and be paid amongst his, her, or their children, share and share alike;" the present question would have extended to any material compass. Because the rule of construction of the other words, independently of those, seems perfectly undisputed, according to the language used by Lord Alvanley in Corbyn v. French, with which I entirely agree. That where there is a tenant for life of a fund, out of which the legacy is to be paid, so that there is an interval between the death of the testator and the time when it is payable, and a provision that in case of the death of the legatee before the legacy should become payable, it should go to the executors or administrators, the provision shall only apply to the case of the legatee dying at any period between the death of the testator, and that of the tenant for life. It may be a question, (and it seems to have been decided affirmatively in one case, but in such a way that I could not think myself bound by it,) where there is no tenant for life, and a bequest is made, with a provision similar to that I have now stated, whether, there being no other period to which the words can apply, they should not operate as a substitution in the event of the legatee dying in the life time of the testator. That may be a question. But where there is another term to which the words in question can apply, the rule is clearly different, and was stated by Lord Alvanley in Corbyn v. French in these terms: "A testator is never to be supposed to mean to give to any but those who shall survive him, unless the intention is perfectly clear. I will not determine now, because it is not neces

sary, that where a legacy is given to a person or his representatives, it can mean any thing, but in case of his death in the life time of the testator; but it is perfectly clear, that where the fund is given to one for life, and after the death of that person to several others, and in case of their deaths, to their representatives, there is no reason to presume an intention that it shall not lapse by the death of the legatee in the life of the testator." That appears to me to state truly the rule of the Court upon this subject, the rule which I think ought to govern this

case.

1824.

BONE

v.

Cook, and others.

A testator has

I do not doubt, but that where the testator has expressed his intention very clearly, you may make a substitution in the event of the legatee named dying in his life-time, and that was the case in the authorities cited on the other side. · It was the case in Sibley v. Cook. There there was a declaration almost in express terms, that the legacies should not lapse. The effect of the provision in Bridge v. Abbott is the same, the testatrix referring directly to the circumstance of the residuary legatees dying in her life time. No body can doubt the power of a testator to prevent a legacy lapsing; but, to be effectual, it must be exercised in ex- vent a legacy lapsing; but to press terms. I do not deny, that in this case the children, be effectual, it if there had been any, would have taken the share, though cised in express the legatee had died in the life-time of the testatrix. I terms. take that to be consistent with the reason of the cases, and agreeable to the principles on which Miller v. Warren (a), and Willing v. Baine (b) were decided.

So far I think the argument for the plaintiff quite founded; but I do not think the consequence which has been drawn from it, follows in this case. I look upon this as nothing more than a legacy to a legatee, with an anxious expression that she should have it if she survived the testatrix: and if she should have children, and should die before the testatrix,

an undoubted

power to pre

must be exer