v.

MIDDLETON *remainder of money in the funds and all my estates of every MESSENGER. kind or nature whatsoever to be sold by a fair auction, and the sums of money arising therefrom to be equally divided among brothers' and sisters' children (Susan Charlewood excepted) to whom I bequeath one shilling."

[ *137 ]

[ *138 ]

He then gave some mourning rings, and to John Middleton and George Odel ten guineas each; and he appointed them executors.

The testator afterwards made the following codicil :

"As the legatees die the benefit of the interest monies to go into the family of my brothers' and sisters' children then surviving equal share and share alike.”

The testator died upon the 3rd of June, 1786. Besides stock and household furniture he was possessed of leasehold estates. His widow received the interest and dividends of his 3 per cent. Annuities and the profits arising from all his estates, and had the use of all his household furniture, during her life. She died upon the 12th of May, 1795. The annuitants named in the will survived her.

The bill was filed by the executors to have the accounts taken, and the claims of the parties ascertained; and by a decree made at the Rolls upon the 12th of December, 1786, the accounts were directed; and an inquiry, who were the brothers and sisters of the testator; whether they had any and what children living at the time of his death; if any were dead, who were their personal representatives; and whether any of them (except Susan Charlewood), were living at the death of the testator's widow.

The Master's report specified the brothers and three sisters of the testator; and stated, that several of their children were living at the testator's death; and some of them died before the death of his widow. None were born after the testator's death.

By another decree, pronounced upon the 16th of February, 1798, it was directed, that 1,500l. 3 per cent. Consolidated Bank Annuities, part of 3,350l. standing in the name of the testator, should be carried to the account of the defendant Ann Little, and the *interest to be paid to her for her life; and it was declared, that upon her death the said 1,500l. would belong to such of the

v.

children of the testator's brothers and sisters (except Susan MIDDLETON Charlewood) as should be living at the death of Ann Little. The MESSENGER. decree farther directed, that 700l., other part thereof, should be carried over in manner following: viz. 350l. to the account of the testator's sister, the defendant Sarah Clempson (formerly O'Brien); and the interest thereof should be paid to her for life; and 3501., the other moiety, to the account of his sister Anne Charlewood; and the interest thereof be paid to her for life and it was declared, that the said two sums would belong to such of the children of the testator's brothers and sisters (except Susan Charlewood) as should be living at the respective deaths of Sarah Clempson and Anne Charlewood. Some inquiries were directed as to James Messenger, a brother of the testator; who went to sea in 1785; and had not since been heard of. Advertisements were published for his children but none came in.

:

The cause coming on for farther directions, the question was, whether the general residue belonged exclusively to the children of the testator's brothers and sisters (except Susan Charlewood), who were living at the death of the widow; or whether children, who died between the death of the testator and the death of his widow, were entitled with the others. The counsel for the plaintiffs were directed by the Court to support the point in favour of all the children living at the death of the testator.

Mr. Lloyd, Mr. Graham, Mr. Fonblanque, and Mr. Benyon, for the children living at the death of the testator's wife. Upon the will taken without the codicil it would be too clear for argument, upon the authorities, that it would have vested in the children living at the death of the testator, as well as at the death of the wife. But the question arises upon the will coupled with the codicil. The codicil must mean children surviving at the death of the legatee; and the effect of it cannot be restrained to the annuitants only: but it relates to every person taking an interest under the will; the testator's wife as well as the others. There is no ground for confining the operation of the codicil to the annuitants, excluding the widow. It is impossible, that the

v.

MESSENGER. [ *139 ]

MIDDLETON testator could use this language without intending to vary the bequest. The words must have their effect; and they cannot be applied to the contingency of a child dying in the life of the testator. It was unnecessary for him to express, that they should be living at his own death. The law does that.

Dec. 9.

Mr. Richards and Mr. Grimwood, for the representatives of the children, who died between the deaths of the testator and his widow:

This is a gift of the residue to the testator's wife for life; for the old distinction between a gift of the interest or use of a thing and of the thing itself does not now prevail. He gives her the interest of his property of every denomination whatsoever for her life, and the use of his household furniture. Then he distinguishes it into portions; and makes this disposition; the effect of which is, that after her death he takes from the residue certain parts; and the residue of that residue he gives to the children of his brothers and sisters. The expression "interest monies" in the codicil cannot apply to all, that was given to his wife; for he also gave her the use of his furniture and the profits of all the rest of his property. She cannot be considered a legatee in the common acceptation of the word. The word "legatees" in the codicil must apply to those, who only can be properly considered legatees, viz. the annuitants in contradiction to residuary legatees.

MASTER OF THE ROLLS:

I have looked over this will with much attention; and I do not say, I have not some doubt upon it; and that I have not in some degree changed my opinion in the consideration of the question. But upon the whole will taken together with the codicil I am of opinion, the codicil upon the true construction is not explanatory, but restrictive; a distribution only of so much as had by the will been appropriated; the interest of which he had given in different proportions to Ann Little, Sarah Clempson, and Anne Charlewood. By the will making no farther disposition of the 1,500l. and 700l. so appropriated, which are still

v.

[ *140 ]

to stand in his name, he proceeds to dispose of the remainder of MIDDLETON his money in the funds and all his other property after those MESSENGER. appropriations. I understand, he had several leasehold estates. It appears to me upon the face of the will, and according to the construction put upon words of division at the deaths of tenants for life and the authority of De Visme v. Mello,† that the remainder of his money in the funds and the produce of all his other estates, when sold, were divisible among all the children of his brothers and sisters, except Susan Charlewood, living at his own death, and such, if any, as might be born before the death of his wife, and the representatives of such as should be dead in the life of his wife. That is fully established in that case; in which every circumstance contained in this occurs. It is clear upon that case, to which I perfectly subscribe, that under such a disposition the fund is divisible among such of the objects, as are living at the testator's death, and such as shall be born, before the fund is distributable; and that they are vested interests. If that is the true construction of this will, and it is clearly so, if De Visme v. Mello is right, the question is, to what the codicil relates; and it was contended, that it related, not only to the sums appropriated to the annuitants, but that it was explanatory of the words the testator used, when speaking of the remainder of his money in the funds, after that appropriation, and all his other estates; to restrain the disposition, as it does, as far as it relates to the subject of it, to children then surviving. But upon the true construction of this codicil I am of opinion, it was not to relate to anything but the interest undisposed of by the will; and that the testator did not mean to disturb what was given by the will, but to dispose of what had been left undisposed of, the sums of 1,500l. and 700l. after the deaths of the annuitants.

Declare, that the residue of the testator's personal estate, after the appropriation of 1,500l. and 700l. 3 per cent., &c. for satisfaction of the annuities given by the will to Ann Little, Sarah Clempson, and Anne Charlewood, is distributable among the children of the testator's brothers and sisters (except Susan Charlewood) living at his decease, and the representatives of such as died in the life of his wife.

+1 Br. C. C. 537.

1799. Dec. 13, 23.

Rolls Court. ARDEN, M.R. [149]

[150]

NISBETT v. MURRAY.*

MURRAY v. NISBETT.

(5 Vesey, 149–158.)

Residuary disposition of all the testator's real and personal estate in Jamaica, in trust to be remitted to England, was held specific, and not to include a debt, originally upon bond and judgment in Jamaica, and afterwards farther secured by bond and judgment in England, under which it was received, and being considered undisposed of was applied in the first instance to the debts, &c. Executors having legacies of 201. a-piece to buy mourning rings and equal specific legacies were upon the former held trustees of the undisposed of residue for the next of kin.

ROBERT NISBETT of the parish of Westmorland in Jamaica, planter, by his will, dated the 7th June, 1787, and executed in that island, after directing, that all his debts and funeral expenses should in the first place be paid off and satisfied, to the payment of which he subjected all his estates both real and personal, gave and bequeathed to David Murray and John Graham the sum of 201. apiece, to buy mourning rings; and he gave, devised, and bequeathed, to a free mulatto woman, named Anney Gordon, some negroes and slaves, with fifteen acres of land in the said parish, upon which, he ordered, that a house might be built by his executors; to hold the slaves with their issue and the said fifteen acres, with such house, unto Anney Gordon and her assigns during her life; and immediately after her decease he declared it to be his will and desire, that the said slaves with their increase and the said house and land should revert to and become part of the residuum of his estate; and he thereby gave, devised, and bequeathed, the same in the same manner, and for the like purposes, as he thereby gave and devised the rest and residue of his estate. And [after certain other specific bequests of property in Jamaica] as to all the rest and residue of his estate both real and personal of what nature or kind soever in the said island of Jamaica, his household furniture and wearing apparel excepted, which he thereby gave to the said Anney Gordon, he gave, devised, and bequeathed, the same unto David Murray and

• Guthrie v. Walrond (1883) 22 Ch. D. 573, 575.