1859. July 29. Rolls Court. ROMILLY, [324] [325] IN RE BROWNE'S WILL. (27 Beav. 324 325.) Bequest of Consols, in trust to purchase a life annuity for a lady, to be held for her separate use without power of anticipation; and in case of her illness or incapacity, the testator gave the trustees a discretionary power as to the application of the annuity, for her maintenance, support or otherwise for her personal benefit. The legatee being unmarried: Held that she was entitled to a transfer of the Consols. THE testator bequeathed to his three trustees, who were also his executors, the sum of 3,000l. 31. per cent. Consolidated Annuities, upon trust to invest the same in the purchase of a Government annuity, or if from any cause a difficulty should arise as to the purchase of a Government annuity, then in an office for the insurance of life, or in some other good security, to be payable during the life of Louisa Harris; and to be held upon trust to pay the same unto Louisa Harris for her sole and separate use, free from the debts or control of any husband, and so that she should not anticipate the same. And he declared that her receipt should be a discharge for the same, but that in case of illness or other incapacity of Louisa Harris to give such receipt, it should be lawful for his trustees, in their discretion and of their uncontrollable authority, to dispense with the same, and to manage the said annuity, and from time to time to apply the same for the maintenance and support, or otherwise for the personal benefit of Louisa Harris, during her life, at such times and in such manner as his trustees should think most conducive to her comfort and convenience. Louisa Harris, who was unmarried, being advised that she was entitled to have the 3,000l. Consols transferred to her, instead of the annuity directed to be purchased therewith, elected to have the sum of Consols transferred to her instead of the annuity, and she gave the executors notice requiring them to transfer it to her. They refused so to do, and paid the amount into Court under the Trustee Relief Act. Louisa Harris now presented a petition, praying a declaration that she was entitled to the 3,000l. Consols, and that it might be transferred to her accordingly. Mr. Selwyn and Mr. Fischer cited Ford v. Batley (1). Mr. Hobhouse for the executors. The MASTER OF THE ROLLS held that the petitioner was entitled to have the Consols transferred to her. (1) 99 K. R. 160 (17 Beav. 303). CAMPBELL v. BOUSKELL. 66 A testatrix gave her real estate in trust for her grandchildren (by name) and their issue, as M. F. should appoint, and in default of such appointment, upon trust for "my aforesaid nephews and nieces and their respective lawful issue, and also the issue (if any) of M. F., and their several and respective heirs and assigns for ever as tenants in common. No nephews or nieces were mentioned in the will. M. F. died without appointing: Held, that there was no gift by implication to the grandchildren and their issue. Secondly, that the words "my aforesaid nephews and nieces" could not be read my aforesaid grandsons and granddaughters." Thirdly, that the gift to the nephews and nieces was not void for uncertainty, and lastly, that they took in tail. THE testatrix died in 1841, she had an illegitimate daughter, Ann Fell, who had seven children, viz. Mary Fell, James Fell, John Fell, Samuel Fell, Ann Campbell, Margaret Ashburner and Eliza Coward. Some of these had children then living. The testatrix at her death had one nephew, James Bouskell, and one niece Margaret Ashburner; and she had had another nephew (James Proctor), who had died in 1825, leaving two children, John Proctor and Ann Ireland. The testatrix, by her will dated in 1837, devised her real estate to two trustees in fee, upon trust for her daughter Ann Fell for life, and afterwards for her "granddaughter" Mary Fell, for life, and then upon *the trusts following: Upon trust "for all and every the lawful issue, if any, of my said granddaughter, and my grandsons, James Fell, John Fell and Samuel Fell, and their respective issue, and my granddaughters, Ann Campbell, Margaret Ashburner and Eliza Coward, and their respective lawful issue, for such estates," &c., &c., "as she, my said. granddaughter Mary Fell," shall by will appoint, "and in default. of " any such appointment, then upon trust that the trustees should "stand and be possessed thereof, for the use and benefit of my aforesaid nephews and nieces and their respective lawful issue, and also the issue (if any) of my said granddaughter Mary Fell, and their several and respective heirs and assigns for ever, nevertheless not as joint tenants, but as tenants in common." The testatrix had not named any nephew or niece in her will. The testatrix died in 1841; Mary Fell died unmarried in September, 1857, and without having executed her power; and Ann Fell died in October in the same year, and thereupon diffi culties arose as to who were entitled to the real estate. Of the seven grandchildren, Ann Campbell died in 1848, leaving issue, but the other five grandchildren survived the tenants for life, and four of them had children. The nephew, James Bouskell, died in 1852, and his son, James Bouskell, was heir to the testatrix. 1859. July 20, 21. Rolls Court. [ 325] [ *326 ] 788 at pa se mad "my aforesand grand Was 10 To 21 ENTITY, A lastly, that they took in tail, at the gift to the nophow and atrix dc, she had an illegitimate daughter, who had sever den, vis. Mary Fell, James Foll, Samuel Fell, Ann Campbell, Margaret Ashburner Coward. Sme of these had children then living atrix at her death had one nephew, James Bousholl, iece Margaret Ashburner; and she had had another Mames Proctor, who had died in 1825, leaving two John Proctor and Ann Ireland. atrix, by her will dated in 1837, devised her od wo trustees in fee, upon trust for her daughter Ann fe, and afterwards for her "granddaughter" Mary fe, and then upon the trusts following: Upon frud nd every the lawful issue, if any, of my rad grund and my grandsons, James Fell, Join fel and Samu their respective issue, and my granddagsson, Fun Margaret Ashburner and Eliza Cowd, * 4 *** wful issue, for such estates," &,, hter Mary Fell," shall by w such appointment, then apo ( A 4, stand and be pod torent, for d foresaid nephews and me and nd also the issue of and l and their set Axt 331] The niece, Margaret Ashburner, had died in 1852 without issue. The great-nephew, John Proctor, and the great-niece, Ann Ireland (the children of James Proctor, who had died in 1825), were still living. The bill prayed that the rights of the parties might be declared. The cause now came on for hearing. Mr. W. Fearson, for the plaintiffs, [argued, that the power to appoint in favour of the grandchildren and their issue created an implied gift to them under the doctrine of Brown v. Higgs (1), and that they might even take under the description of nephews, the word "nephew" being derived from nepos, a grandson. Mr. Fitzhugh, in the same interest]. The MASTER OF THE ROLLS [was of opinion that it was impossible to read "nephews and nieces" as "grandsons and granddaughters," and that the bill ought to be dismissed, as they had no interest in the estate]. Mr. C. Hall, for the defendant James Bouskell, asked the Court to put a construction on the will, [and argued, first, that the gift was void for uncertainty. Secondly, that if the Court decided in favour of the nephews and nieces, then that they took estates tail; and that if Margaret, one of the objects of the gift, took in tail, the other, James, must necessarily take the same estate]. Mr. Dewsnap for the younger children of James Bouskell, and for John Proctor and Ann Ireland. THE MASTER OF THE ROlls: This will is very obscure; but I think, in the first place, that the words "my aforesaid nephews and nieces" must mean "all my nephews and nieces." Suppose a testator had used these words alone in his will, viz.: "I give all my real estate to my aforesaid nephews or nieces," would it be possible for this Court to hold that the testator died intestate? On the construction I put on this sentence yesterday, the word "aforesaid" has no meaning, and, in my opinion, it would be a strong thing to say that, because the testatrix has not specified the whole class, none are entitled. I think the whole of the nephews and nieces take. The class is to be ascertained at death of testatrix, and can only include persons who survived her and their lawful issue, and would exclude those who had predeceased her. (1) 4 R. R. 323 (4 Ves. 708; 5 Ves. 495; 8 Ves. 561). |