appropriated sum for liabilities incurred by him in respect of Chap. XXXI. other parts of the estate, nor can he retain any part of the appropriated sum against a debt due from the legatee. Ex parte Chadwin, 3 Sw. 380; Peterson v. Peterson, 3 Eq 111; Ballard v. Marsden, 14 Ch. D. 374; Fraser v. Murdoch, 6 App. C. 855. On the other hand, a legatee whose legacy has not been appropriated, is not entitled to share in an increase in the value of the residue before appropriation, although the executor is also a residuary legatee. In re Campbell; Campbell v. Campbell, (1893) 3 Ch. 468. Where there was a direction to the trustees to select, appropriate, and set apart so much of the testator's personal estate as would produce 1,500l. a year for the benefit of his widow, and the trustee refused to make any selection, it was held that sufficient Consols must be set aside to answer the annuity. Prendergast v. Prendergast, 3 H. L. 195. A direction to set apart any investments "hereby" authorised to secure an annuity, authorises the appropriation of investments named in the will only and not of investments authorised by the Trustee Act, 1893. In re Outhwaite; Owthwaite v. Taylor, (1891) 3 Ch. 494. A direction to appropriate by investment on mortgage is satisfied by appropriating a mortgage which already forms part of the estate. Ames v. Parkinson, 7 B. 379. An indemnity clause, providing that any trustee enabling his co-trustee to receive any moneys should not be liable to see to the application thereof, has been held to protect a trustee against misappropriation of the trust fund by his co-trustee. Wilkins v. Hogg, 3 Giff. 116; 10 W. R. 47; Pass v. Dundas, 29 W. R. 332. And as to the effect of indemnity clauses, see Knox v. Mackinnon, 13 App. C. 753; Rae v. Meek, 14 App. C. 558; Wyman v. Paterson, (1900) A. C. 271. Trustees are of course entitled to be indemnified out of the trust estate against liabilities they incur. But if they properly appropriate certain funds to a particular legacy, their right to indemnity against the appropriated fund, Direction to appropriate. XVIII. Indemnity. Chap XXXI. for liabilities incurred, with reference to other parts of the estate, is gone. Fraser v. Murdoch, 6 App. C. 855. XIX. Costs. XX. Power to decide questions. A direction that a solicitor trustee is to be allowed to charge for professional services will be limited strictly to professional services unless there are words extending the direction to non-professional charges. Harbin v. Darby, 28 B. 325; In re Ames; Ames v. Taylor, 25 Ch. D. 72; In re Chapple; Newton v. Chapman, 27 Ch. D. 584; In re Fish; Bennett v. Bennett, (1893) 2 Ch. 413. A power to trustees to decide questions does not oust the jurisdiction of the Court. Massy v. Rogers, 11 L. R. Ir. 409. CHAPTER XXXII. ABSOLUTE INTERESTS IN PERSONALTY. I. BEQUESTS OF PERSONALTY WITH WORDS OF LIMITATION. 1. It is clear that a bequest to A. and his executors, or to A. and his representatives, gives A. the absolute interest, the additional words being merely words of limitation. Lugar v. Harman, 1 Cox, 250; Taylor v. Beverley, 1 Coll. 108; Appleton v. Rowley, 8 Eq. 139. So, too, a gift to A. for life, and then to his executors or administrators, or to his personal representatives, gives A. the absolute interest. A.-G. v. Malkin, 2 Ph. 64; Saberton v. Sheels, 1 R. & M. 587; Alger v. Parrott, L. R. 3 Eq. 328; Avern v. Lloyd, 5 Eq. 383; Wing v. Wing, 24 W. R. 878. It is immaterial that the life interest is determinable. Webb v. Sadler, 14 Eq. 533; 8 Ch. 419. If, however, the gift is to A. for life, and then to his executors or administrators for their own use and benefit, they will take beneficially. Sanders v. Franks, 2 Mad. 147; Wallis v. Taylor, 8 Sim. 241. But the intention that the executors are to take beneficially must be unmistakably plain. Stocks v. Dodsley, 1 Kee. 325. A gift to A. for life with power to appoint by will and in default of appointment to his executors and administrators, gives an absolute interest and entitles the donee to immediate payment, and it is apparently not necessary that the power should be released. Derall v. Dickens, 9 Jnr. 550; Page v. Soper, 11 Ha. 321. 2. A bequest of personalty to a man and his heirs would no Bequest to A. doubt pass the absolute interest. and his heirs. Chap. XXXII. Bequest to A. and the heirs of his body. Bequest to A. for life and if he dies without issue over before So, too, a bequest to A. and the heirs of his body, or to A. and the heirs of his body in equal proportions, gives A. an absolute interest in personalty. Leventhorpe v. Ashbie, Rolle's Ab. 831, pl. 1; Seale v. Seale, 1 P. W. 290; In re Barker's Ch. 565. Trusts, 52 L. J. It seems that in wills before the Wills Act, if the gift is to A. for life, and if he die without issue over, an absolute interest will not be given to A. by implication, though if the the Wills Act. property had been real estate, A. would have taken an estate tail. Proctor v. Upton, cit. 5 D. M. & G. 199, n. ; In re Banks' Trust; Ex parte Hovill, 2 K. & J. 387; see A.-G. v. Bayley, 2 B. C. C. 553; Chandless v. Price, 3 Ves. 98; Bodens v. Lord Galway, 2 Ed. 297. Bequest to A. for life and then to the heirs of his body followed On the other hand, a gift to A. for life and then to the heirs of his body, and if he die without issue over, gives A. an absolute interest. Butterfield v. Butterfield, 1 Ves. Sen. 133; by a gift over. Theebridge v. Kilburne, 2 Ves. Sen. 233; Williams v. Lewis, 3 Dr. 669; 6 H. L. 1013; see, too, Elton v. Eason, 19 Ves. 73; Garth v. Baldwin, 2 Ves. Sen. 646; Tothill v. Pitt, 1 Mad. 488; S. C. sub nom. Earl of Chatham v. Tothill, 7 B. P. C. 453; Brouncker v. Bagot, 19 Ves. 574; 1 Mer. 271. In what cases If, in wills before the Wills Act, the gift over upon failure of issue can be limited to failure of issue at the death of the tenant for life, a prior gift to A. and the heirs of his body gives A. an interest defeasible upon failure of issue at his death. Read v. Snell, 2 Atk. 642; Hodgeson v. Bussey, 2 Atk. 89; Paine v. Stratton, 2 Atk. 647; 3 B. P. C. 257 ; Fearne, C. R. 494. In these cases the testator has shown a clear meaning, that the property should go in a course of devolution, till there is an exhaustion of heirs of the body; and, as this intention cannot be carried into effect, the Court gives an absolute interest in personalty. See Ex parte Wynch, 5 D. M. & G. 188. But if such an intention is not manifested, it seems that the Courts will be unwilling to apply the rules of tenure to personal estate, and it must be collected from the general bequests since language of the will, whether the words heirs and heirs of the body are intended to be words of limitation or purchase. limitation in the Wills Act. A gift to A. for life and to her heirs after her is an absolute Chap. XXXII. gift. Atkinson v. L'Estrange, 15 L. R. Ir. 340. And, if the bequest is to A. for life, and after her decease to her heirs as she shall give it by will, and if she die without a will to her right heirs for ever, the term right heirs is equivalent to executors and administrators. Powell v. Boggis, 35 B. 535. So if the intention is to create a succession of estates, as in a gift to A. for life and after his decease to the heirs male of his body, and so in succession, A. takes an absolute interest. Britton v. Twining, 3 Mer. 176; see Cleary's Trusts, 16 Ir. Ch. 438; Sparling v. Parker, 29 B. 450. distribution superadded make the word heirs But if there is anything to show that the heirs were to take Words of by purchase; if, for instance, they are to take as tenants in common, the life estate will not be enlarged, whether there is a gift over in default of issue or not. Bull v. Comberbach, 25 B. 540; Jacobs v. Amyott, 4 B. C. C. 542; Jeaffreson's Trust, L. R. 2 Eq. 276; see, too, In re Russell, 53 L. J. Ch. 400; revd. 52 L. T. 559. So, too, in a gift to A. for life with a direction that he was to have no power over the property beyond its legal vestment for conveyance, &c., and after his decease to his heirs, A. took only a life interest in the personalty, though he took the realty in fee. Herrick v. Franklin, 6 Eq. 593; see Comfort v. Brown, 10 Ch. D. 146. The better opinion seems now to be, that the Court will not shrink from giving a different construction to the words heirs and heirs of the body as regards realty and personalty, though given together in the same clause. Herrick v. Franklin, supra. 3. The word issue is less "mysteriously inflexible" than the words heirs of the body, and therefore in a gift of personalty to A. and his issue it may be a word of limitation or of purchase, in which latter case the same question arises as in gifts to A. and his children, whether A. and the issue take jointly or whether the issue take subject to a life interest in A. a. Primâ facie it seems a gift of personalty to A. and his issue, as it would give A. an estate tail in realty, gives him an a word of purchase. Whether the same con realty and personalty where they are given together. Bequests to his issue. a person and |