Where the testator directed his children, who were his resi- Chap. XLIX. duary legatees, to bring advances into hotchpot, and a share Lapsed share. given to one of the children was revoked and lapsed, it was held that the hotchpot clause applied to the lapsed share, and that the son, whose share was revoked, could not claim as next of kin, without bringing advances into hotchpot, but not so as to increase the widow's share. Stewart v. Stewart, 15 Ch. D. 539.

Under a clause directing a child to bring advances into hotchpot, an advance to a child cannot be brought against the issue of the child, who take the share in remainder or by substitution. Silverside v. Silverside, 25 B. 340; Hewitt v. Jardine, 14 Eq. 58.

A direction to deduct advances from shares of residue does not affect a residuary legatee's right to a general legacy given by the will. Smith v. Crabtree, 6 Ch. D. 591.

Under the ordinary hotchpot clause with reference to appointed shares, life and reversionary interests must be brought into account. Eales v. Drake, 1 Ch. D. 217.

Where an estate was to be divisible equally if below and unequally if above a certain amount, it was held that a sum which the testator covenanted to settle on a daughter and which she had to bring into hotchpot, must be brought into account in ascertaining the value of the estate. Fox v. Fox, 11 Eq. 142.

Where the testator gave his residue to his son and daughter equally, and directed any sum which he had agreed to give on the marriage of a child should be taken in satisfaction of the share, and he covenanted to settle 10,000l. on the son's marriage with ultimate reversion to himself on failure of issue, which happened, it was held that the sons estate was entitled to the settled 10,000l., subject to his widow's life estate under the settlement, that the daughter must receive 10,000l., and that the residue of the estate was divisible equally between the son and daughter. Wheeler v. Humphreys, (1898) A. C. 506.

Direction as

to child does

not affect

issue.

Direction as to appointed shares.

Effect of

direction tha

settled sum be taken as

part of share.

funds and one

As a general rule, where several funds are settled by one Several instrument and there is a hotchpot clause, an appointee of one hotchpot fund cannot claim an unappointed share of the other funds clause.

Chap. XLIX. without bringing the fund appointed to him into hotchpot, unless there is a clear indication of intention that the funds are to be treated as separate. In re Marquis of Bristol; Earl Grey v. Grey, (1897) 1 Ch. 946; Hutchinson v. Tottenham, (1898) 1 Ir. 403; (1899) 1 Ir. 344.

Directions

as to how

And where a fund is settled by a will with a hotchpot clause, and then other funds are settled by the same will upon the same trusts by reference, there is to be primâ facie one hotchpot clause applicable to the three funds, and not a separate hotchpot clause applicable to each fund. Re Perkins; Perkins v. Bagot, 67 L. T. 743.

On the other hand, where by a will funds are directed to be held upon the same or similar trusts as funds settled by a settlement, a separate hotchpot clause must be applied to the fund settled by reference. Montague v. Montague, 15 B. 565; Re North; Meates v. Bishop, 76 L. T. 186.

In some cases the testator himself states what he has advances to be advanced or gives directions how advances are to be ascertained, for instance, by reference to an account book.

ascertained.

Advances

recited to have been made.

Entries

subsequent to date of will.

Where the testator recited that he had paid 5,000l. for his son-in-law, and directed that if the son-in-law should not before the testator's death have repaid 5,000l. at least, that sum should be taken in part payment of a legacy to the son-in-law, and 5,000l. had not in fact been paid for the son-in-law, it was held that the legacy was to be reduced only by the amount actually paid. In re Taylor's Estate; Tomlin v. Underhay, 22 Ch. D. 495.

In other cases legatees have been held bound by recitals as to the amount of advances and by entries in ledgers referred to by the testator. In re Aird's Estate; Aird v. Quick, 12 Ch. D. 291; Quihampton v. Going, 24 W. R. 917; In re Wood; Ward v. Wood, 32 Ch. D. 517; see Burrowes v. Lord Clonbrock, 27 L. R. Ir. 538.

But entries made subsequent to the date of the will cannot be incorporated into it, and made binding on the legatee, though they are admissible as evidence that advances were made by the testator. Smith v. Conder, 9 Ch. D. 170; Whateley v. Spooner, 3 K. & J. 542; see Re Coyte; Coyte v. Coyte, 56 L. T. 510.

Where advances are directed to be brought into account Chap. XLIX. evidence is not admissible to show that the testator, some time

after an advance, had written off a portion of the advance as a gift. Smith v. Conder, 9 Ch. D. 170.

advances.

Where a testator directed advances appearing in a specified book to be taken into account, and subsequently destroyed the book, it was held that no advances, whether made before or after the will, were to be taken into account. Re Coyte, supra. In the case of direct gifts where advances made by the Interest on testator are directed to be deducted from a legatee's share, interest at 4 per cent. on such advances must be computed from the testator's death. Andrewes v. George, 3 Sim. 393; Hilton v. Hilton, 14 Eq. 468; Field v. Seward, 5 Ch. D. 538; see Poole v. Poole, 7 Ch. 17.

If the testator directs the advances to be deducted with interest at 5 per cent., interest at that rate will be computed down to the testator's death and at 4 per cent. from that date. Stewart v. Stewart, 15 Ch. D. 539.

If the time of distribution is postponed advances carry interest only from the time of distribution. In re Rees; Rees v. George, 17 Ch. D. 701; In re Dallmeyer; Dallmeyer v. Dallmeyer, (1896) 1 Ch. 372; In re Lambert; Middleton v. Moore, (1897) 2 Ch. 169.

Where a testator had advanced a son 2,000l. at interest and gave his residue to his widow for life with remainder to his children, a direction that advances to the children were to be taken in part satisfaction of their shares was held not to operate till the widow's death, so that the son was compelled to pay his interest on the 2,000l. to the widow. Limpus v. Arnold, 15 Q. B. D. 300.

In the case of appointments under powers hotchpot clauses will not be implied.

"as and for

her share."

Thus, an appointment in favour of an object "as and for her Appointment share" does not exclude that object from sharing in the unappointed part, though the sum left unappointed is such as would give all the objects equal shares. Wilson v. Piggott, 2 Ves. Jun. 351; Wombwell v. Hanrott, 14 B. 143; Walmesley v. Vaughan, 1 De G. & J. 114.

Chap. XLIX.

Share in lieu of claims.

And it seems a direction that the appointed share is in lieu of all claims and demands of the donee to or for her original share in the trust fund will not exclude her from the unappointed part. Foster v. Cautley, 6 D. M. & G. 55.

On the other hand, an appointment to one object, coupled with a declaration that the donee of the power wishes the fund equally divided, may amount to an appointment of the rest of the fund to the other objects. Fortescue v. Gregor, 5 Ves. 553.

And a direction for accruer which can only have a meaning on the supposition that the fund has been appointed in favour of other objects, may also amount to an appointment. Foster v. Cantley, 6 D. M. & G. 55.

In the case of a deed, if the appointee is a party and a share is appointed to him in lieu of his share in the fund, the appointee cannot share in the unappointed part. Clune v. Apjohn, 17 Ir. Ch. 25; Armstrong v. Lynn, I. R. 9 Eq. 186.

Under a gift to several persons as A. shall appoint with a gift in default of appointment to them equally, a direction to bring advances made by the testator into hotchpot applies only to the unappointed portion of the fund. Brocklehurst v. Flint, 16 B. 100.

CHAPTER L.

INTERESTS UNDISPOSED OF.

LAPSE.

PORTIONS of a testator's property may be undisposed of,

Chap. L.

either because the disposition attempted by him bas failed, or because no disposition has been attempted.

lapse.

A devise or legacy, whether it be of a debt due to the Doctrine of testator or not, lapses by the death of the devisee or legatee before the testator, or even before the date of the will. Elliott v. Davenport, 1 P. W. 83; 2 Vern. 581; Maybank v. Brooks, 1 B. C. C. 84.

Confirmation by codicil of a will containing a legacy to a Confirmation legatee, her executors and administrators, where the legatee by codicil. has died since the date of the will, does not prevent a lapse or give the legacy to the executors of the legatee. Hutcheson v. Hammond, 3 B. C. C. 127; Maybank v. Brooks, 1 B. C. C. 84. Where the gift is to several named persons as tenants in Gift to common, the shares of any who die before the testator lapse. Page v. Page, 2 P. W. 489; Peat v. Chapman, 1 Ves. Sen. 542. Possibly, if one of the named persons is shown on the face of the will to be dead at the date of the will, the fund would be divisible among the others. Clarke v. Clemmans, 36 L. J. Ch. 171.

So a devise by A. to the uses of B.'s will can only take effect in favour of those devisees of B. who survive A. Culsha v. Cheese, 7 Ha. 245.

tenants in common by name.

Person dead

at date of

will.

The doctrine of lapse applies to a power of appointment Power of exercised by will, and the appointee must survive the donee of appointment the power in order to take. Duke of Marlborough v. Lord