v.

MERCER.

funds and interest, then he gave the same unto his said daughter, CAVENDISH the defendant Sarah Cavendish, her executors, &c. for ever; and in the mean time and until his said grand-children or some or one of them should become entitled to the said funds by virtue of his will, upon trust to receive all the dividends and interest, which should arise from the funds to be purchased with the residue aforesaid, and invest the same from time to time at interest to accumulate, and stand possessed of the accumulation in trust for the person or persons, who should be entitled to the funds to be purchased with the residue.

The defendant Henry Cavendish, and Sarah his wife, by their answer stated, that the said Henry Cavendish took out administration with the will annexed; that they were desirous, that the whole or part of the interest of the said legacies should be applied in the maintenance of the plaintiffs; inasmuch as the defendants had a large family of children, consisting of the plaintiffs and one other child, born since; for whom no provision was made by the said will; and the net annual income of the defendant's estate was 1,100l. a-year, exclusive of an annuity of 700l. a-year; which his father paid him, so long as his father enjoyed a place under the Crown; and therefore the said defendant could not maintain the plaintiffs in proportion to their fortunes.

The LORD CHANCELLOR made the usual decree for taking the accounts; and ordered, that the Master should, in case the defendant Mrs. Cavendish should appear before him separate from her husband, and consent thereto, inquire into the circumstances of the defendant Henry Cavendish; and whether it was proper to make any and what allowance for the maintenance and education of the plaintiffs, the infants, and state the same with his opinion thereon to the Court.

The Master by his report, dated the 18th of November, 1776, stated, that it would be proper to allow certain sums therein for the maintenance; and that report was afterwards confirmed.

[Note. This case was followed by Lord LoUGHBOROUGH, L.C. in Greenwell v. Greenwell (1800) 5 Ves. 194; no further report of that case appears necessary.]

[ *197n. ]

1799. Dec. 24. 1800. Feb. 4.

Rolls Court. ARDEN, M.R. [207]

HARRISON v. FOREMAN.†

(5 Vesey, 207-210.)

A clear vested interest not devested: the express contingency, upon which it was to be devested, not having happened.

Bequest to A. for life, and after her decease to B. and C. in equal moieties; and in case of the decease of either in the life of A. the whole to the survivor of them living at her decease. B. and C. having both died in A.'s lifetime.

Held, the devesting clause had no operation.

JOHN STALLARD, being possessed among other personal estate of 5661. annuities of 1778, by his will, dated the 13th of August, 1779, gave to Joseph Jennings and John Harrison 40l. per annum, part of the said annuities, in trust to pay the dividends and produce thereof, which should from time to time arise and become payable, to his cousin Mrs. Sarah Barnes during her life, exclusive of her marriage or any future husband, and not to be subject to his or their debts or control; and from and after her decease upon trust to transfer the said sum of 40l. per annum, or the stock or fund, wherein the produce thereof might be invested, to Peter Stallard and Susannah Snell Stallard, children of his (the testator's) cousin William Stallard, in equal moieties; and in case of the decease of either of them in the life-time of the said Sarah Barnes then he gave the whole thereof to the survivor of them living at her decease. He gave all the residue of his estate and effects of every kind to Elizabeth Stallard and Sarah Stallard, the children of his cousin Abraham Stallard, to be equally divided between them, share and share alike; and he appointed Jennings and Harrison his executors.

By a codicil, dated the 2nd of February, 1781, among other things the testator revoked the disposition of the residue, and gave it in the same terms to the said Elizabeth Stallard and Sarah Stallard, and Mary Main, sen. and Mary Main, jun. equally.

By another codicil, dated 9th February, 1782, the testator taking notice of the death of Jennings appointed another jointexecutor with Harrison.

The testator died in March, 1782. Susannah Snell Stallard

+ Marriott v. Abell (1869) L. R. 7 Eq. 478; 38 L. J. Ch. 451.

v.

FOREMAN.

and Peter Stallard died; the former in January, 1784: the HARRISON latter in December in the same year; both intestate. Sarah Barnes died in January, 1797. The bill was filed by the executors of the testator; praying, that it may be declared, who are entitled to the said 401. per annum Annuities, &c. The question was between the defendant Foreman, administratrix of Susannah Snell Stallard and Peter Stallard, and the residuary legatees, claiming it as having fallen into the residue.

Mr. Hood, for the defendant Foreman, contended, that Susannah Snell Stallard and Peter Stallard were joint-tenants of the capital of the fund, subject to the life interest of Sarah Barnes but the MASTER OF THE ROLLS intimated a decided opinion, that they were tenants in common.

It was then contended for the same defendant, that, each of them having a vested interest in a moiety, it passed to their respective personal representatives; the event, upon which the legacy was given over to the survivor of them living at the decease of Sarah Barnes, not having happened; both having died during her life.

The cases cited were Barnes v. Allen; ‡ Monkhouse v. Holme; § Benyon v. Maddison; || and Scurfield v. Howes. T

Mr. Stanley, for the residuary legatees:

Those cases do not apply; and there is no case like this. Taking the whole sentence in the will, relating to this legacy, together, it is clear, the testator intended a personal benefit to Susannah Snell Stallard and Peter Stallard; and that neither should take any benefit, unless surviving Sarah Barnes; during whose life nothing vested, but their right was merely contingent. As she survived them both, the legacy upon her death lapsed, and fell into the general residue.

MASTER OF THE ROLLS:

The only question upon this will is, whether by the event that

+ The arguments ex relatione.

1 Br. C. C. 181.

§ 1 Br. C. C. 298.

2 Br. C. C. 75.

3 Br. C. C. 91.

[208]

HARRISON

V.

FOREMAN.

[*209]

has happened, the deaths of Susannah Snell Stallard and Peter Stallard in the lifetime of Sarah Barnes, this sum of 40l. per annum annuities given after her death in their favour is undisposed of; or in other words whether the bequest is by these means put an end to and become absolutely void. Upon the first part of the will, if it stood without the condition annexed in case of the death of either of them in the lifetime of Sarah Barnes, there could be no doubt, I suppose, that it would have been a vested interest in those two persons; for it is a bequest of these annuities to a person during her life; and after her decease to two given persons in equal moieties. If it rested upon those words, there could be no *doubt it would upon the death of that person have been a vested interest in them as tenants in common, transmissible to their representatives, whether they survived the person entitled for life, or died before her. Then comes the condition annexed; making a disposition in a given event different from that, which would have been the effect of the first words. The contingency described in that part of the will never took place; there being no survivor of those two persons at that time. The question is then, whether this makes the whole void; as if it never vested at all.

It is perfectly clear, that where there are clear words of gift, giving a vested interest to parties, the Court will never permit that absolute gift to be defeated, unless it is perfectly clear, that the very case has happened, in which it is declared, that interest shall not arise. The case of Mackell v. Wintert is most analogous to this. I held the interest absolutely vested in the surviving grandson. My decree was reversed: the LORD CHANCELLOR holding two things; in both of which I had given an opinion; first, that it never did vest in the two grandsons or the survivor of them: 2dly, If it did vest, yet it sufficiently appeared upon will, that the testator intended a survivorship to take place between all three, the grandsons and the grand-daughter, though it was not expressed. As to the first point, it does not bear upon this case. The LORD CHANCELLOR was of opinion, the words were not sufficient to give a vested interest to the two grandsons for this reason; that nothing was given to them till their ages of twenty-one but the capital and the accumulation are directed to

† See the note at the end of this case.

the

v.

FOREMAN.

be paid to them at that time and no other. His Lordship's HARRISON opinion is expressly founded upon that. My opinion rested entirely upon the first point. I admit the absurdity of the intention but that is no reason, why it should not prevail. I am very glad, the decree took the turn it did; for unquestionably it effected the real intention of the testatrix.

But without entering into that question, or commenting farther upon that case, to which it is my duty to submit, it is sufficient to say, that it is impossible any doubt can be entertained upon the words of this will. Upon the principle of the LORD CHANCELLOR's opinion, that the words in that will were not sufficient to give any vested interest till the attainment of majority, my decree undoubtedly was wrong. But upon the doctrine held both by his Lordship and by me it must be determined, that upon the words of this will there was a vested interest, that was to be devested only upon a given contingency, and the question only is, whether that contingency has happened. No words can be more clear for a vested interest. Then the rule, that I applied in Mackell v. Winter, and that was admitted by the LORD CHANCELLOR, takes place; that if there is a clear vested interest, the Court is only to see, what there is to take it away; and the only contingency is, that in case of the decease of either of them in the life of Mrs. Barnes the whole is to go to the survivor. Neither of them was living at her death. That rule, therefore, that I applied in Mackell v. Winter, and that I still think binding upon a court of equity, applies. There is a vested interest; and the contingency, upon which it is to be devested, never happened: the vested interest therefore remains; as if that contingency had never been annexed to it. Upon the principles laid down by the LORD CHANCELLOR in Mackell v. Winter I am perfectly clear, his Lordship would have agreed with me in this case. I could illustrate the principle by putting the case of a real estate, instead of these annuities, given after the death of the tenant for life to these two persons and their heirs, as tenants in common; but, if either of them dies before the death of the tenant for life, then to the survivor and his heirs. Putting it so, there is no possibility of doubt, it would have been a vested interest in them, to be devested upon a contingency, which did not take place.

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