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The trusts of the term of 500 years were declared to be first for securing the jointure; and subject thereto in the next place, in case there should be one or more child or children, whether son or sons or daughter or daughters of the intended marriage besides an eldest or only son, then and in such case the said trustees and the survivor of them should after the death of the said John Willis and not before, unless by the express consent of the said John [* 52] Willis testified as therein mentioned, by mortgage of the premises or any part thereof for all or any part of the said term or by any other ways or means, as the said trustees or the survivor should think convenient, raise the several sums of money after mentioned for the portion or portions of such child or children, except as aforesaid, to be paid to such child or children, if more than one besides an eldest or only son, in such shares and proportions and at such times, as the said John Willis and Sarah, his intended wife, should direct or appoint; and for default of such direction or appointment then to be paid as after mentioned: that is to say; if but one such child besides an eldest or only son, then the sum of 50001. for the portion of such only younger child; and if two such children, then the sum of 6000l. for the portions of such children; to be equally divided between them share and share alike; and if three such children, then the sum of 8000l. for the portions of such children, to be equally divided between them share and share alike; and if there should be four or more such children, then the sum of 10,000l. for their portions, to be in like manner divided among them: such portions to be paid to them respectively, if a son or sons, at his or their age or ages of 21 years; and if a daughter or daughters, at her or their respective ages of 21 years or day or days of marriage, which should first happen, so as such marriage should be had after the age of 16 years, in case such respective times of payment should happen after the decease of the said John Willis: but if in his life-time, then within twelve months next after his decease, and not before, unless with such consent and testified as aforesaid : provided, that if any or either of such children, not being an eldest or only son, should happen to die, before his, her, or their, portion or portions should become payable by virtue thereof, so that the number of such younger children should be reduced to less than four, then and in such case no more money should be raised by virtue of the trusts of the said term of 500 years, than what would make the whole sum for the portion of the survivor or survivors of such children, not being an eldest or only son, equal to the sum originally thereby limited to be raised as the portion or portions of such child or children, if one, two, or three, in number, as the case should happen, as therein before was mentioned.

The issue of this marriage were Richard Willis, the eldest son, and eight younger children, namely, Bridget, Isabella, Mary, George, Hester, Catherine, Sarah, and John. Bridget, Isabella, Catherine, Sarah, and John, died in the life

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of their father: but some of them had previously attained the age of

twenty-one. The other three younger children attained that age and survived their father. Mary Willis married Mr. Spencer, under the age of twenty-one, but with her father's consent according to the directions of the settlement; who gave her 2000l. as her share of the portion, there being then five younger children.

The bill was filed by Richard Willis, the eldest son of John and Sarah Willis, for the purpose of raising a sum of 7000l. with interest due upon a mortgage of leasehold estates, which was part of the funds provided by the Bishop of Winchester for the objects of the settlement: and that such money might be applied in part of the sum of 80007. for the younger children under the settlement.

The question was, whether the sum to be raised for the younger children was in the event that had happened 80007 or 10,000l.

Mr. Mansfield, Mr. Hardinge, and Mr. Stanley, for the Plaintiff. By the words of the settlement, which are peculiar, the sum shall be according to the number of children surviving, when the portions shall be raised. The word "survivor" must apply to something: but it cannot properly be applied to children born after the death of others, who attained the age of twenty-one. With respect to them such children born afterwards cannot be called survivors: but that must be argued upon the construction now attempted.

Solicitor General [Sir John Mitford], Mr. Hollist, and Mr. Cooke, for the younger children. It depends on the construction of the word "payable." It does not mean the time, at which the money is to be actually raised; for if so, as the children might all die in the life of their father, they could make no use of it in his life, unless he appointed. If the number had been reduced to one, and that one had died in the life-time of the father, but above twenty-one, the portion must have been raised; and the rule must be the same as to all. Interest must be calculated from the death of the [* 54] father; the twelve months being given only for the * convenience of the estate. This sort of clause arose from the decisions, that charged the reversion with interest from the age of twenty-one. Emperor v. Rolfe, 1 Ves. 208. Cholmondeley v. Meyrick, 3 Bro. C. Č. 252. n. In that the doubt was upon the word "due," not "payable."

Lord CHANCELLOR [LOUGHBOROUGH]. I do not see any such difference between this case and those formerly determined, that should induce the Court to make a different decision. It was clearly stated, that these clauses were framed to obviate the difficulty arising from the determinations, that charged the reversion by permitting interest to be carried on from the age of twenty-one, though there was an estate for life. As soon as these clauses came forward, in Emperor v. Rolfe, Lord Hardwicke put a just construction upon them; and he referred the word "payable" to the time in respect of the quality of the child, distinguishing between that and the time, when ex necessitate the money was to be de facto raised. The only question here is, in what sense I am to understand the words "before his, her, or their, portion or portions should become payable;" whether in

respect of the quality of the person, to whom the payment is to be made, or in respect of the time, when such person could be actually in receipt of the money. It is clear, as it has been stated, that if it does not apply to all the children, it cannot to any. There could be no case, in which, if the number was reduced to one, the portion of that one should not be raised; for the expression in the clause is, "if one, two, or three, in number." If but one had remained, attaining the age of twenty-one, but dying in the life-time of the parent, it is clear, that must have been a vested interest; for there are no words to make it sink for the benefit of the inheritance. Then it cannot apply as to any, be the number what it may, if it cannot as to one. Then consider the power of appointment, and that by an appointment to any child they might have vested the interest of the portion; as in fact was done upon the marriage of Mrs. Spencer under the age of twenty-one, but with consent of the father. The others having attained that age, at which upon Lord Northington's reasoning it became debitum in præsenti solvendum in futuro, as to the capacity of the children, they became clearly capable of receiving payment. I have a very accurate note of the settlement itself in Cholmondeley v. Meyrick. It does seem to differ in any substantial circumstance from this case. The family clearly conceived, that 10,000l. was the sum to be raised; 20007. was given as Mrs. Spencer's share, there being five children. Without any doubt 10,000l. is to be raised (1).

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1. Ir a settlement, clearly and unequivocally make the right of a child to a provision, under that settlement, depend upon the contingency of the child's surviving either, or both, of its parents; a Court of Equity has no authority to control such a disposition. Woodcock v. Duke of Dorset, 3 Brown, 570; Powis v. Burdett, 9 Ves. 435. But if the language of a settlement be at all ambiguous, so as to leave in any degree of uncertainty the period at which, or the contingency on which, the interest shall vest; Courts of Equity have long had a decided leaning, (Hope v. Lord Clifden, 6 Ves. 507,) and seem, now, bound by authority, (Perfect v. Lord Curzon, 5 Mad. 444,) to make such a construction, even by putting a considerable strain upon language, (Powis v. Burdett, 9 Ves. 437; King v. Hake, 9 Ves. 444,) as will give vested interests to the children of the settlor, when they stand in need of a provision; usually, as to sons, at the age of twenty-one; and as to daughters, at that age, or marriage; (Howgrave v. Cartier, 3 V. & B. 86; Hotchkin v. Humphrey, 2 Mad. 74;) though such interests may not be to take effect, in possession, until after the death of both parents. Perfect v. Lord Curzon, ubi supra; Schenck v. Legh, 9 Ves. 310.

2. Where portions have been charged, by settlement, upon a reversionary term, Lord Alvanley declared it to have been the uniform rule of the Lords Cowper and Macclesfield, followed by all their successors in the office of Chancellor, to lay hold of any words from which it could be fairly inferred, that the portions should not be raised by sale of the term, to the prejudice of the life-estate of the father,

(1) In Brown v. Fryer, Chan. June 24, 1799, the Lord Chancellor said, Cholmondeley v. Meyrick established this principle; that, although payment is postponed until after the death of the father, yet, if the circumstance, on which the portion attaches, the age of twenty-one, marriage, &c. has happened, the portion is vested: post, Legh v. Haverfield, vol. v. 452; Bayard v. Smith, xiv. 470; Halifax v. Wilson, xvi. 168; Weedon v. Fell, 2 Atk. 123; Howgrave v. Cartier, 1 Ves. & Bea. 79, Coop. 66; Walker v. Main, 1 Jack. & Walk. Ï; Hotchkin v. Humfrey, 2

Mad. 65.

or other author of the settlement. Lady Clinton v. Lord Robert Seymour, 4 Ves. 460. And see Reynolds v. Meyrick, 1 Eden, 53; Cholmondeley v. Meyrick, ibid. 85; Lyon v. Chandos, 3 Atk. 416. Lord Eldon, however, after a review of all the cases, thought the rule had been most correctly stated by Lord Talbot, (in Hebblethwaite v. Cartwright, Ca. temp. Talb. 32,) and that the question ought not to be determined by any argument ab inconvenienti; but the time for raising the portions must depend upon the particular penning of the trust, and the intention of the instrument; in construing which, the Court ought not to be eager to lay hold of circumstances. Codrington v. Foley, 6 Ves. 380. And see Lyddon v. Lyddon, 14 Ves. 566. This and the preceding note are extracted from 2 Hovenden on Frauds, 114-116.

3. In Hope v. Lord Clifden, 6 Ves. 509, it was observed by Lord Eldon, that the principal case was a very strong one; and that if it had been treated as a matter of ordinary contract, without considering the relation of the parties, the decision could not have been what it was, upon the words of this settlement.

HARTGA v. THE BANK OF ENGLAND.
[1796, Feb. 26.]

BANK stock specifically bequeathed to A. in trust to pay a bond debt to himself; and as to the rest for B. for life; remainder over: the trustee, being also executor, transferred to persons not entitled under the will: the Bank is not chargeable.

ELIZABETH STEVENS by her will, dated the 27th of August, 1778, reciting, that there was then standing in her name in the books of the Bank of England the sum of 8001. 3 per cent. consolidated Bank annuities, and that she stood indebted to John Stonehouse in the sum of 1201.; for which she had given her bond, declared her will to be, that the said bond should in the first place be paid out of the said stock; and the rest and residue of the said stock, after payment of the said bond, she gave and bequeathed to the said John Stonehouse, his executors or administrators, in trust to permit or suffer Anne Bean to receive to her own use, independent of any husband she should marry, the dividends and interest, that should from time to time grow due thereon; and after the decease of Anne Bean she gave and bequeathed the stock to the said John Stonehouse, his executors and administrators, in trust to divide the same among the children of the said Anne Bean lawfully to be begotten, share and share alike; and in case the said Anne Bean should die without leaving issue of her body lawfully begotten, then in trust to pay the sum of 1007., part of the said stock, to her nephew Gerrard Lamb, and the residue of the said stock to her next relations in equal degree, share and share alike. The testatrix, after giving some small legacies, gave the residue of her estate and effects to Anne Bean, and appointed John Stonehouse executor. The testatrix died in November, 1778. The executor proved the will; and upon the 26th of February, 1779, he transferred the sum of 600l., part of the 8001. Bank annuities mentioned in the will, to Mary and Elizabeth Culme. Anne Bean

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married Daniel Hartga. John Stonehouse died in 1790. In February 1793, the bill was filed by Hartga and his wife and their infant children against the sister of Stonehouse, who was his administratrix, for an account of his personal estate and of the money arising from the sale of the 600l. Bank annuities, and of the other money due to the Plaintiffs in respect of the dividends and interest of the said stock received by John Stonehouse; that the stock sold might be replaced; and if the assets of Stonehouse should not be sufficient, then that the Bank might be decreed to replace the deficiency; and that the 8001. stock, when made good, might be transferred to the Accountant General in trust in the cause upon the trusts of the will.

The Bank by their answer admitted the entry in their books of so much of the will of Elizabeth Stevens as related to the said 8007. stock, and the transfer by Stonehouse to Mary and Elizabeth Culme; and stated, that the dividend due upon the whole stock upon the 1st of January, 1779, was received by Stonehouse; that the 2007. stock remaining after the said transfer was standing in the name of the testatrix Elizabeth Stevens; and the dividend, which became duc upon the said 2001. upon the 5th of January, 1786, and all dividends accrued since that time had been received by the Plaintiff Anne Hartga by virtue of a letter of attorney from Stonehouse, dated the 28th of July, 1785; except two dividends due the 5th of July, 1786, and the 5th of January, 1787, received by John Henry, Attorney to Anna Hartga; and the last dividend due upon the said 2007. upon the 5th of July, 1794, was received by her and her husband.

The administratrix of Stonehouse by her answer stated, that he died insolvent. The cause came on upon bill and answer.

Attorney General [Sir John Scott], for the Plaintiffs. In The Bank of England v. Moffatt, 3 Bro. C. C. 260, there was no bequest of stock upon particular trusts: but the general residue was blended into one common mass; and the will itself gave the trustees an express power to transfer and alter the funds: the Bank insisted, that it was specific; and therefore no action ought to lie against them. This is a specific bequest; and yet they have permitted it, contrary to their practice then stated, to be transferred, not to the legatee nor the trustee, but to other persons.

Mr. Piggott and Mr. Wooddeson, for the Bank. It appears from the answer, that the Plaintiffs knew the fact of the transfer four years before the death of the executor: and a considerable time after his death, he having died insolvent, and no person existing to account, the bill is filed to charge the Bank. But for the

acts of Parliament the executor would have to deal with [* 57] this property as any other personal property of the testator. The acts (1) permit the devise of stock; and direct, that no payment shall be made upon such devise till entry in the books of the Bank of so much of the will, as relates to the stock; and that in

(1) 1 Geo. I. st. 2, c. 19, s. 12; 30 Geo. II. c. 19, s. 49.

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