Where a testator's effects are insufficient to a gift over to the last survivor of the sum set satisfy an annuity and legacies:-Held, that the apart to answer the annuity. After the death annuitant was entitled at once to the amount of of one, the fund was lost by the misconduct of the valuation, subject to an abatement; and that the trustee, and the annuity unpaid for the lives although the annuitant died before the payment of the other two; but, after their deaths, a sum of the annuity in full would have equalled the of money, of less amount than the original fund, abated amount of the valuation, the other legatees becoming available :-Held, that as the last surhave no claim to the surplus of that amount. vivor had had no opportunity of receiving the Wroughton v. Colquhoun, I De G. & Sm. 357; capital during her life, the annuity was to be considered as continuing for her benefit after her sister's death, and, therefore, that she was entitled to an apportionment, in respect of the arrears during that interval, as well as in respect of the principal fund. Innes v. Mitchell, 2 Ph. 346 ; 16 L. J., Ch. 415.

11 Jur. 940.

Conditional Annuity.]-Where a testator bequeathed to his widow two annuities, one payable so long as she should continue his widow, and the other for life, and the assets were insufficient, the court ordered the annuities to be valued, and to abate with the legacies, and directed the amount of the former of the annuities to be laid out in the purchase of a government annuity, and the amount of the latter to be paid to the annuitant. Carr v. Ingleby, 1 De G. & Sm. 362.

Where a life annuity has been given which was liable to forfeiture in certain events, and such annuity has been valued in an action to administer the estate of the covenantor, which is not sufficient to pay the annuity in full, the annuitant will be entitled to have the whole of the fund representing the value of the annuity paid to him. Wroughton v. Colquhoun (1 De G. & Sm. 357) followed. Carr v. Ingleby (1 De G. & Sm. 362) not followed. Sinclair, In re, Allen v. Sinclair, 66 L. J., Ch. 514; [1897] 1 Ch. 921; 76 L. T. 452; 45 W. R. 596.

Several Annuities charged on Estate.]-A testator devised real estate to trustees, in trust out of the rents to pay an annuity to A. until he attained twenty-five, when he was entitled to the real estate, an annuity of 400l. to B. for life, and an annuity of 1507. for the maintenance and during the minority of an infant in tail (with power to A. to appoint a jointure), and to pay the surplus rent to the mother of A. until he should be entitled to the possession of the estates. A. having appointed the jointure died, leaving his widow, who gave birth to a posthumous son, the infant tenant in tail. The income of the estate proving deficient :-Held, that the annuity of 400l., the jointure, and the annuity for the maintenance of the infant must abate pari passu, but that the apportionment was not to be retrospective, so as to affect the amount received by B. previously to the birth of the tenant in tail. Coore v. Todd, 7 De G. M. & G. 520; 23 Beav. 92; 2 Jur. (N.S.)

Bequest of residuary estate out of income to pay annuities to M. and H. for life, and to L. a yearly sum for education and maintenance, and other annuities were given. There was a direction as to abatement of legacies. After the date of his will, the testator entered into partnership, by which, in the case of his decease, his partner was to purchase the testator's share at a sum named, and to be paid in five annual instalments, with interest. Each instalment, with its interest, to be paid year by year. Four of the instalments were not due; and the income of the testator's estate not being sufficient to pay the annuities in full:-Held, first, that they must for the present abate pro tanto; secondly that the interest on each instalment, when paid, would be considered as income, and applicable to repayment to the annuitants of the amounts which they were called on to abate; thirdly, that L.'s annuity ceased at twenty-one. Gardner v. Barber, 18 Jur. 508.

Annuity to be Increased.]-Direction to invest sum to produce 1201. a year, to be paid to widow until certain property fell in, then invest so much money as would, with the money before invested, produce an annual income of 250l. to his widow for her life, and after her decease in trust to call in 1,000l., part of the money so invested, and pay that sum as the widow should appoint. The testator gave other legacies, and bequeathed the residue of his property:-Held, that the arrears of the annuity were the first charge upon the estate, in priority over the legacy of 1,0007. Ingleman v. and the other general legacies. Worthington, 25 L. J., Ch. 46.

"Clear Annuities"-Surplus Income.]-A testator, after bequeathing two pecuniary legacies, bequeathed three "clear" annuities for lives. He then bequeathed his residuary estate in trust to pay a clear annuity of 1,000l. to his widow, and, after payment of the four annuities, to pay the residue of the income during the life of the widow to A. The capital of the residue after the widow's death was to be held as to 5,0001. upon such trusts as the widow should appoint, and as to the residue of the testator's estate, and effects after the widow's death, and subject as to the 5,0007., as aforesaid, upon trust to pay certain legacies, with an ultimate residuary gift to E. :Held, first, that the two first-mentioned pecuniary legacies and three annuities had priority over every other gift. Secondly, that the annuities were given free of legacy duty. Thirdly, that the annuities were charged on the capital of the residue, but that A. was entitled to retain the surplus income paid to her in one year, and to receive the surplus for another, although the income was

in the subsequent years insufficient to answer the annuities. Fourthly, that after the widow's death the 5,000l. would have no priority over the other reversionary legacies. Fifthly, that the reversionary legatees were not entitled to have any surplus income during the widow's life set apart to secure payment of their legacies. Haynes v. Haynes, 3 De G. M. & G. 590.

not been merged by the dealings of the owner of the life estate therewith. Harman v. Forster, 1 Dr. & Wal. 637.

Sale.]-An estate was sold in a suit to raise a charge which was paramount to some annuities charged on the estate :-Held, that the annuitants were necessary parties to the conveyance, and were bound to join in it, but without prejudice to any rights they might have to impeach the validity of the re-settlement. Sullivan v. Sullivan, 28 Beav. 102.

Accumulations 40 Geo. 3, c. 98.]-Direction to invest stock in the names of trustees, and to pay thereout annuities amounting to 4007. a year; and that the trustees should hold the said stock, and the dividends thereof, subject Parties.]-Annuitants prior to a mortto the annuities, upon trust, until half the annuities determined, to invest the dividends so the mortgagee against the mortgagor for a sale, gage need not be made parties to a suit by fallen in, in order to increase the capital by but the estate must be sold, subject to the annuiaccumulation; and so soon as one half of the

uses.

dividends should have so fallen in, to apply such ties. Delabere v. Norwood, 3 Swan. 144. moiety of the dividends, and also such further; parts of the same as should from time to time fall Assignee in Possession.]-Where a mortgagee in, and the whole of the dividends when all the had become bankrupt, and an ejectment having annuities should have ceased, to certain charitable been brought, and the premises redeemed by the The stock was invested, and subsequently assignees, who subsequently entered into possesreduced to 33 per cent. The trustees thereupon sion :-Held, on a bill by an annuitant, claiming reduced the payments to the annuitants by one- under a settlement prior to the mortgage, that eighth, the dividends having become to that the assignees were chargeable as mortgagees in extent insufficient to answer the annuities. The possession, and were bound to appropriate the death of some of the annuitants afterwards rents and profits which they received in discharge released a part of the dividends, and the sums of the redemption money in priority to that of so falling in were accumulated :-Held, that by their own mortgage. Sloane v. Mahon, 1 Dr. & 40 Geo. 3, c. 98, the accumulation must cease at the expiration of twenty-one years from testator's death. That the annuitants were not entitled to be paid their annuities in full, but that the reduction of the stock would produce a proportionate reduction in the several annuities, and in the fund applicable to the charity. That the whole of the accumulated fund arising before a moiety of the dividends were released by cessation of the annuities was undisposed of, and formed part of the residuary estate. Att. Gen. v. Poulden, 3 Hare, 555; 8 Jur. 611.

Wal. 189.

Surplus Rents.]-By a settlement in 1801, reciting that the lady was entitled to an annuity charged on the estate of her son by a former marriage, and that the rents were inadequate to meet it, the lady assigned the annuity and the arrears and future payments thereof on trust to receive so much as the rents would answer for the benefit of herself and husband, and to hold the arrears then due and thereafter to become due on trust, if her son should attain twenty-one, &c., in her lifetime, to release them, but, if he Right of Residuary Legatee.]-A. gave life should die before her under age, &c., that the annuities and directed funds to be invested, pro- arrears should form a fund subject to the ducing an income to meet them. She bequeathed appointment of the wife. The son attained the residue of her estate, "including the funds twenty-one, and the rents afterwards became set apart to answer the annuities when and so sufficient to pay the annuity and leave a surplus: soon as such annuities shall respectively cease,"-Held, that the arrears since 1801 were not to T. The estate was only sufficient to pay about 58. in the pound, and the sums apportioned to the values of the life annuities were invested, and the dividends paid to the annuitants. On the death of one of the annuitants :-Held, that T. had only the ordinary rights of a residuary legatee, and could take nothing until the legacies and annuities had all been paid in full. Tootal, In re, Hankin v. Kilburn, 2 Ch. D. 628; 24 W. R. 1031.

raisable out of the surplus rents after paying the annuity as against a mortgagee of the son. Battersby v. Rochfort, 2 Jo. & Lat. 431; 9 Ir. Ch. R. 191.

Annuity to Wife.]-Testator charged his estates with an annuity in favour of his wife, and subject thereto he devised the estates in strict settlement. Afterwards, by will and codicils, he charged the estates with other annuities :-Held, that the first-mentioned annuity was the primary Merger-Incumbrances.] - By indenture of charge on the estates. Graves v. Hicks, 6 Sim. 1812 lands were subject to incumbrances, settled 391; 4 L. J., Ch. 239. upon A. for life with remainder to his first and A testator covenanted on marriage that in other sons in tail. A. granted annuities to B. case he should die in the lifetime of his wife charged upon his life estate. A. paid off some of without issue, his wife should be entitled to onethe prior incumbrances, and had them assigned half of the real and personal property which he to a trustee for his own benefit; and A. and his should die possessed of. He by his will devised trustee joined in assigning to C., for valuable his real estate, subject to annuities. The widow consideration, the incumbrances so paid off :-elected to take against the will. Semble, the Held, that the arrears of the interest of the annuitants should abate one-half of their ancharges so paid off and assigned were incum- nuities. Jackson v. Hamilton, 3 Jo. & Lat. 702; brances on the life estate prior to the annuitant, 9 Ir. Ch. R. 430. and that as against the annuitant the interest payable on the charges out of the life estate had

An annuity was bequeathed by will to a wife otherwise unprovided for, and sums for

children's maintenance :-Held, on the intention | her for life and for her separate use, an annuity of the testator, that they should not abate with charged on the same estate, to commence imthe general legacies. Lewin v. Lewin, 2 Ves. mediately. At the death of the testatrix, the

Date of First Payment.]-Testator gave legacies and an annuity for the personal maintenance of his brother, and directed the payment of it to commence on the first half-yearly day after his death, and the legacies to be paid at the expiration of two years after that event, or as much sooner as the circumstances of his estate would permit :—Held, that the annuity was not entitled to priority over the legacies. Ashburnham v. Ashburnham, 16 Sim. 186; 12 Jur. 299.

Elegit-Receipt of Rent.]-D., being entitled to three annuities secured by covenant and judgment, received for twenty years part of the rents of the grantor's estates under elegits issued on satisfied judgments :-Held, that he was not accountable for his receipts to a party having a charge on the estates who had taken proceedings to obtain possession. Hele v. Bexley (Lord), 17 Beav. 14; 22 L. J., Ch. 1007.

Building Charge under 10 Will. 3, c. 6.-A building charge under 10 Will. 3, c. 6 (Ir.) has priority over an annuity created subsequently to the charge. Phillott v. Knox, 16 W. R.

10. MERGER AND EXTINGUISHMENT. Devise to Annuitant-Merger not Presumed.] -A. devised to B., a married woman, a reversionary interest in an estate, and bequeathed to

prior limitation having failed, B. became tenant for life in 1ossession. She afterwards became discoverte, and the property having become insufficient to pay all the annuities:-Held, that a merger of her annuity in her life interest, by operation of law, would not be presumed. Byam v. Sutton, 19 Beav. 556.

By Marriage.]-A man covenanted to pay a woman an annuity for her life, for her separate use, and free from anticipation. The covenanter afterwards married the annuitant, and died, leaving her surviving-Held, that the annuity was not extinguished, but only suspended by the marriage, and that the widow was entitled to recover arrears accrued subsequently to the death of her husband. Fitzgerald v. Fitzgerald, 5 Moore P. C. 180; 37 L. J., P. C. 44; L. R. 2

A proviso annexed to the grant of an Securities granted for an annuity set aside six annuity for its cessor on the annuitant, a married years after. Williams v. Hockin, 8 Taunt. 435. man, living apart from his wife, is void. Nicholl v. Jones, 36 L. J., Ch. 554.

Voluntary Covenant.]- Where a testator entered into a voluntary covenant to pay an annuity, the annuitant is a specialty creditor on his real estates, although the annuity did not become in arrear till after the testator's death. Jenkins v. Briant, 6 Sim. 603; 3 L. J., Ch. 169.

Covenant to Charge after-acquired Property.] —A. granted an annuity to B., and covenanted to charge it upon all such property as, in the event of C. dying before him, he might become possessed of at C.'s death. C. died, having bequeathed an annuity in trust for A.:-Held, that B. was entitled to a decree specifically charging his annuity bequeathed in trust for A. An agreement, of which the subject is an expectancy contingent upon the will of a living person, will be enforced in equity. Lyde v. Mynn, 1 Myl. & K. 683; Coop. temp. Brough.

123.

Award-Penalty.]-An arbitrator awarded an annuity of 1,2007. to be paid by A. to B., to be secured by the purchase of a government annuity; and in case it should not be secured within two months, a further sum to be paid monthly until it was secured, as a penalty. A. paid the annuity and penalty until his death. He died insolvent: -Held, that the annuitant could prove for the annuity and the penalty until the annuity should be secured. Parfit v. Chambre, 42 L. J., Ch. 6; L. R. 15 Eq. 36; 27 L. T. 750; 21 W. R. 50.

Purchase by Lunatic.]-Where a lunatic purchased of an insurance society two annuities for his life, the society at the time having no knowledge of his lunacy, and the purchase being fair and of good faith, and in the usual course of their business-Held, that the purchase money could not be recovered by the personal relatives of the deceased lunatic. Molton v. Camroux, 4 Ex. 17; 18 L. J., Ex. 356.

Registration-Incumbrancer with Notice.]A landowner, by deed, charged his land with two life annuities. He subsequently made several mortgages of the property by deeds, some of which recited the annuity deed. The annuity deed had not been registered as required by 18 & 19 Vict. c. 15, s. 12-Held, that as s. 12 was in similar terms to the clauses in the Registry Acts, which had been decided not to make an unregistered conveyance void as against a subsequent purchaser who had notice of it, the annuities were valid as against all the subsequent incumbrancers who took with notice, and against the trustee in bankruptcy of the grantor. Greaves v. Tofield, 14 Ch. D. 563; 43 L. T. 100; 28 W. R. 840-C. A.

Setting Aside.]- Cancellation not ordered though annuity void under 17 Geo. 3, c. 26, but warrant of attorney and judgment thereon set aside. Storton v. Tomlins, 3 L. J., C. P. 101.

Lapse of Time.]-Annuity set aside on merits, after lapse of time. Cole v. Gardner or Finlay v. Gardner, 6 B. & C. 105; 5 L. J. (0.8.) K. B. 79.

2. CONSIDERATION.

When Inadequate.]-Mere inadequacy of price (unless very gross) not sufficient ground to set aside the sale of an annuity. Vernor v. Winstanley, West, 395.

Mere inadequacy of value is not a sufficient ground to set aside an annuity. Speed v. Phillips, 3 Anstr. 732.

An annuity cannot be set aside upon mere inadequacy of price, which can be applied only as evidence of fraud. The notion of a market price ascertained in the usual way upon the principle of calculation at an insurance office is not a just criterion of the value. Low v. Barchard, 8 Ves. 133; 7 R. R. 4. Agreement for an annuity the court will not set aside, though sold too cheap, if there is no imposition. Floyer v. Shearard, Ambl. 18.

An annuity purchased for four years' purchase on a life of thirty set aside for inadequacy of price. Heathcote v. Paignon, 2 Bro. C. č. 167.

Purchase by Executor.]-The purchase by an executor of his co-executor's legacy in consideration of a life annuity set aside, on the ground of insufficiency of price. Gray v. Warner, Biel, In re, 42 L. J., Ch. 556; L. R. 16 Eq. 577; 28 L. T. 835; 21 W. R. 808.

When a trustee purchases of his cestui que trust, the onus of proving the fairness of the transaction is not shifted by the fact that the vendor is a co-trustee. Ib.

Encouragement of Learning-Forbearing to Sue.]-An annuity in consideration "that the public good is advanced by the encouragement of learning, and in consideration likewise of the love he bore towards him"; this is not a legal consideration, nor a valuable one in law. Stiles v. Att.-Gen., 2 Atk. 152.

Giving up a pecuniary advantage at the time an annuity is granted amounts to a valuable consideration. Ib.

There being arrears due on the first annuity, the promising not to sue for them was a good consideration, and from that time it ceased to be a voluntary grant. Ib.

The expense a person was put to in standing for member of parliament is not a valuable consideration to support a bond given for that purpose. Ib.

Covenant by Husband-Annuity by Father.]— A covenant by a husband to secure his wife an annuity during her life, in case she should survive him, is a sufficient consideration for a grant of an annuity from her father. Draycott, Ex parte, 2 Glyn & J. 283.

Maintenance.]-Money lent and paid at different times for the education and advancement of the defendant is a good consideration for the grant of an annuity. Kelf v. Ambrose, 7 Term Rep. 551.

Release of Marital Rights.]-In a separation deed the wife charged her separate property in the settlements with the payment of an annuity to the husband, and the husband released his marital rights in respect of all future property

acquired by the wife. This is a good considera- | having full notice of C.'s rights :-Held, that the tion for the grant of the annuity. Logan v. Birkett, 1 Myl. & K. 220; 2 L. J., Ch. 52.