GULLAN v. GROVE. [65] [66] the term of her life, to commence from the day of his decease, or failure of issue to take as aforesaid (as the case might be), and the testator directed and required his trustees and executors to pay the same accordingly. The testator died in 1841; his brother Thomas Gullan died in 1857, without ever having had any child, leaving the plaintiff his widow. Shortly after Thomas Gullan's death the plaintiff and her sister found in the library or parlour of his house, in which he usually kept his deeds, securities and other valuables, à paper writing in two sheets, manifestly forming the third and fourth sheets of a will made by him, and relating (amongst other things) to the power or authority given him to give to his wife *an annuity of 100l. a year for her life. They were wholly in the handwriting of Thomas Gullan, with the exception of the names of the witnesses, and were as follows: "of Mr. William Sopwith, in trust to my executors for my dear wife Lucy. In my late brother's will, on pages seven and eight, I may leave 100l. to my dear wife Lucy during her life: it's my particular wish the said 100l. to be paid out of the rent of house in Piccadilly, now in the occupation of Mr. James Clarke, No. 225; should the said house in Piccadilly be unoccupied, then in the houses in Store Street. I also leave the six houses and small stable in Southville in the parish of Lambeth, in the county of Surrey; also bequeath twenty shares in the Romford Gas Company, in the county "THOMAS GULLAN. "HENRY POOLE. "W. C. POOLE." "of Essex, also fifty shares in the Guarantee Society, Birchin Lane, City; also four shares in the Guardian Fire Office, Lombard Street, City. It's my particular wish and desire that the children of Mrs. John King Eager shall have the half part of Bower's Farm, after my dear wife's decease, when the youngest child attains the age twenty-one years. It's also my particular desire to be buried in St. Margaret's Churchyard, Westminster; should it not be allowed, then my remains to be entered in Ripley Churchyard, the other side of the remains of "THOMAS GULLAN. "HENRY POOLE. "W. C. POOLE." The house in Piccadilly was part of the first testator's estate. Diligent search was made, but no other will or codicil could be found. His widow applied to the Court of Probate for probate of these testamentary documents, which was refused. The widow then instituted this suit, praying a declaration that the above testamentary paper, signed by the testator and attested, was a good and valid execution of the power in her favour, and for consequential directions. Mr. Beales, for the plaintiff, contended that this was a valid execution of the power, being "a writing in the nature of and purporting to be his will." That it did not the less "purport" to be his will because it could not be proved in the Probate Court; and that this document, so far as related to the execution of the power, was complete in itself. He cited Duke of Marlborough v. Lord Godolphin (1). THE MASTER OF THE ROLLS: The question is, whether I can treat a part of an instrument as a writing purporting to be a will. If this had been the whole instrument, I should have had no doubt; but here he has cancelled half the instrument. I express no opinion as to whether a person can partially cancel his will; but it seems to me that the point now before the Court is exactly the same as that which was before the Court of Probate, viz. whether a part only of will can be treated either as a will or as writing purporting to be a will. Mr. Follett and Mr. J. H. Taylor [cited Longford v. Eyre (2), where the power was to be executed by will, "or by any writing in the nature of a will," and the LORD CHANCELLOR thought that the words "in the nature of a will" meant the same as a will. THE MASTER OF THE ROLLS: GULLAN ". GROVE. [67] The bill must be dismissed with costs. ROWLAND v. TAWNEY. 1858. July 27. (26 Beav. 67-71.) Bequest to a living person for life, and afterwards to his children, Rolls Court. followed by a declaration that these interests should be considered a vested interest at the age of twenty-five, and a gift over to the issue of any dying under twenty-five: Held, too remote. THE testator gave 4,000l. to his executors in trust for his nephew James Whiteaves Rowland for his life, "and after his decease, to divide the same amongst his children, and if he shall leave no issue, amongst the children of his brothers John and Joseph; and if they shall leave no issue, I direct the same to sink into and become part of the residue of my personal estate." He gave the residue to his six nephews and nieces for life, as tenants in common, with power to appoint their shares to their children. (2) 1 P. Wms. 741 (1) 2 Ves. Sen. 61. ROMILLY, M.R. [67 1 ROWLAND የ. TAWNEY. [ *68 ] [69] He then proceeded as follows: "And it is my will that the legacy, share or pecuniary interest which any person (meaning thereby any of my said nephews and nieces, or their issue, limited to them) shall take, under this my will, shall be considered as a vested interest at the age of twenty-five years; and if any such person shall die before the same shall become so vested, then such legacy, share or pecuniary interest, as well original as accrued, shall go and accrue to the brothers or sisters, or brother or sister, of such person, in like manner as their original shares; but in case any such persons shall have left issue, then such issue shall have the share or shares, both original and accrued, to which their deceased parent or parents would have been entitled, such share or shares to be vested and payable, at the like time and subject to the same contingencies, as directed concerning the share or shares of their parents. "And also that all interest or other proceeds of personal estate, and also all rents and proceeds of freehold and leasehold estates (except where herein otherwise directed), shall be received by my executors, and accumulated and be invested, in manner aforesaid, for the benefit of the person or persons presumptively entitled to the enjoyment of such estates for life, in tail, or otherwise. Nevertheless, I give my executors full power to apply, for the maintenance, education or advancement in the world of such persons respectively, until they shall attain the age of twenty-five years, such part of the said interest or rents as my said executors shall think fit. And in particular, that in case any such person or persons, being a female or females, shall marry under the said age of twenty-five years, with the consent of my executors, then my executors shall be at liberty, if they think proper, to pay to such female or females the whole or any part of such interest or rents, or to settle any principal monies or estates, or any part thereof, to the separate use of the said female or females, or otherwise as my said trustees shall think proper, and at their sole discretion, so far as the same can be done consistently with the provisions of this my will, and the contingencies herein provided for." The testator died in 1835, his nephew James Whiteaves *Rowland died in 1857, without having been married. The 4,000l., which was in Court, was now claimed by the children of John and Joseph Rowland. Mr. Hadden in support of the petition. Mr. Toller and Mr. Eddis, for the children of John and Joseph, argued, first, that the vesting clause only affected the residue; and, secondly, that the meaning of vesting was "in defeasibly vested": Howgrave v. Cartier (1), Poole v. Bott (2), Taylor v. Frobisher (3), Berkeley v. Swinburne (4). Mr. Lloyd, Mr. Drewry and Mr. Giffard, for the widow's representatives and persons in the same interest, argued that the gift to the children at twenty-five was too remote and void: Griffith v. Pownall (5), In re Morse's Settlement (6); and that the contingency on which this fund was directed to fall into the residue not having happened, it was undisposed of. Mr. Follett and Mr. Torriano for other parties. THE MASTER OF THE ROLLS: Although the Court has, always, every disposition to treat an interest as vested, still I cannot get over the words of this will. The first gift, to James Whiteaves Rowland for his life and afterwards to his children, and, if he shall have no issue, amongst the children of his brothers John and Joseph, and if they shall have no issue then to fall into the residue, is perfectly good; and if the testator had given it over by a subsequent clause, " if they died under twenty-five," I should still have held it a vested interest to be divested on death under twenty-five and indefeasibly vested at twenty-five. My difficulty arises from this express direction in the subsequent clause, that the shares of the nephews and nieces "shall be considered as a vested interest at the age of twenty-five years, and if any such person shall die before the same shall become so vested, then such legacy" &c. shall accrue to the "brother or sister of such person in like manner as their original shares.” If it had stopped there, I should have been disposed to think that it meant indefeasibly vested at twenty-five, because it does not provide for the case of a person dying leaving issue. But here the testator says, "in case any such person shall have left issue, then such issue shall have the share or shares, both original and accrued, to which their deceased parent or parents would have been entitled, such share or shares to be vested and payable at the like time and subject to the same contingencies as directed concerning the shares of their parents." I think it impossible to get over those words. He provides for everything that is to occur, there is nothing to become vested until they attain twenty-five, and he attempts to give a vested interest to unborn issue at twenty-five, which he clearly cannot do. (1) 13 R. R. 142 (3 V. & B. 79). (4) 80 R. R. 64 (16 Sim. 275). ROWLAND r. TAWNEY. [ 70 ] If I found anything in the cases in any way to control the construction of the will, I should be glad to adopt it. Taylor v. Frobisher (1) does not apply to this case. He has drawn this will as if he had read that case, and excluded the very ground upon which the VICE-CHANCELLOR decided it. In Berkeley v. Swinburne (2), a good deal turned upon the clause for maintenance and advancement, it being given out of the share to which they were entitled. Here the testator merely gives to the executors a power of maintenance and advancement out of the income. When a daughter marries under twenty-five with consent, he gives his executors power to pay such daughter the whole or any part of such interest or rents, or to settle any principal moneys or estates, or any part thereof, to the separate use of such female, or otherwise as they shall think proper and at their sole discretion, "so far as the same can be done consistently with the provisions of this my will and the contingencies herein provided for." The testator, therefore, guards against and prevents it becoming vested. I see no mode by which I can get over the words. Upon the other point I entertain no doubt: the bequest does not take effect, and it falls into the residue. The testator's saying, that it is to fall into the residue in a particular event, does not prevent its falling into the residue in another event, which he did not anticipate. Therefore, it must go and be divided as a share of the residue. TOWNSHEND v. MOSTYN. (26 Beav. 72-77.) Previously to Locke King's Act (17 & 18 Vict. c. 113), an express devise of real estate subject to the mortgages affecting the same did not exonerate the testator's personal estate from its primary liability to satisfy all mortgage debts which were secured by the testator's personal covenant to pay the same, even though the debts were incumbrances originally created by the testator's father. PHILLIPS v. BRYDON. (26 Beav. 77-81.) A power to appoint the "interest" of a fund, held to authorize the appointment of the capital, notwithstanding subsequent powers over and limitation of the said trust moneys and the interest." 66 By a voluntary settlement, dated in February, 1848, Miss Brydon assigned a sum of 650l. to two trustees, upon trust to invest, and pay the "interest, dividends and annual produce of the trust moneys "to her for life, for her separate use; and after her decease "to pay and apply the interest, dividends or annual proceeds" of the sum of 650l., or other the said trust (1) 90 R. R. 54 (5 De G & Sm. 191). (2) 80 R. R. 64 (16 Sim. 275). |