whole interest, dividends and produce, to Joseph Sparkes for life; and after his decease, in case his wife should survive, to her for life; and after their several deceases upon the same trust for the children, as aforesaid; and if there should be no issue, or all should die in the life of the wife under twenty-one and without issue, upon trust for Joseph Sparkes, his executors, &c.

The marriage took place, and the bonds were executed.

Joseph Sparkes by his will, dated the 17th of May, 1786, gave to his son John 800l. to be paid at twenty-one; "which with 7007. which I advanced for him as an apprentice fee makes his legacy equal to those hereafter given to my three other sons." He gave his daughter Harriet 2000l. to be paid at twenty-one, or marriage with the consent of his wife, if living, or his executors, if she was dead, or of such as should be appointed by her agreeably to a power afterwards vested in her. He gave his three sons George, Joseph,

and Henry 1500l. a-piece, to be paid at twenty-one res[*532] pectively: *but declared, that what sums should be advanced in the mean time by him, his wife, his executors, or such person as should be appointed by her under the power, for apprentice fees or other purposes beyond those of maintenance and clothing and education should be deemed and taken as part of the said legacies; and the sum so advanced for each son should be deducted from his legacy: "What sums I shall advance will appear by my books wherein the same shall be charged to separate accounts as is already done in the case of my son John;" and he directed, that if any of his children should die before the time of payment of their legacies respectively, such legacy or legacies should be divided among the survivors, payable as the original legacies. He gave the annuities for lives, which he should die possessed of, and all the rents, issues and profits, of all other his estate and effects real or personal of whatever nature, to his wife, to be received, managed, possessed and enjoyed, by her, she continuing a widow, without control from his executors, subject to an annuity of 10l. to his sister, until the legacies aforesaid should become payable; relying upon her judgment to appropriate in the mean time such part of his principal moneys, which she is hereby empowered to do, or the income, dividends and profits, as they shall be requisite for the maintenance, education, and uses, of their children, or for apprentice fees or other purposes toward promoting the interest of their sons; and after payment of the said legacies then he gave all the income of the annuities as might be in being, and all the rents, dividends and profits, of such part of his real and personal estate as should be then remaining, to his wife, to be used, managed, possessed and enjoyed, for her life without control from his executors, she continuing a widow. He gave his four sons the farther sum of 1000l. a-piece, payable after the death of his wife and within three months afterwards to such of them as should be twenty-one, and to the others, when they should attain that age. He gave his daughter Harriet the farther sum of 2000l., to be paid her within three months after his wife's death, provided

:

she should then be twenty-one, or married with his wife's consent; if neither, then to be paid to her when twenty-one, or married with consent of his executors or the executors under his wife's power or the major part of them; and if either of his said children should die before his wife, leaving no lawful issue, the legacy or legacies of the child or children so dying to be divided equally among the survivors, payable at the same time as the original legacies; Provided, if any of the children die, their issue shall be entitled to the legacies of their parents, to be paid at twenty-one. All the remainder of his estate and effects, except what he might by his will give to the child, his wife was then encient with or might be encient with at his death, he gave the same both real and personal to his wife, to dispose thereof, she being a widow, to and among all or such of their children or their issue, in such manner and proportions as she should think proper during her life or by will; in default thereof the said remainder or so much as should be unappropriated at her death to be divided in equal shares among such of their children as might be then living, and the issue, if any, of such as might have died during her life the issue of each deceased to have an equal share with those, who may have survived his wife; such shares to be paid at the same times as the original shares. Then, in case his wife should marry again, he directs, that instead of the benefits thereby given or intended for her she should receive and be entitled to such only as were provided for her by the marriage settlement: and that immediately upon her marriage her power as executrix should cease; and the possession and management of his affairs and effects should be carried on by his executors; and as to the moneys given in legacies, payable after her death, the same must after her marriage be considered as making part of his estate and effects, to be disposed of as follows: as to all such parts, as shall be unappropriated at her marriage, to be applied in the first place to the payment of the legacies hereinbefore first given; namely, the 2000l. to his daughter Harriet, the 8007. to his son John, and the 1500l. a-piece to his other three sons, after deducting from his said three sons' legacies whatever sums shall have been advanced respectively for apprentice fees or other purposes beyond those of education, clothing and maintenance; in the second place, to the payment of 2000l. more to his daughter Harriet and 1000l. a-piece to his four sons; and the remainder to be divided among all his children, share and share alike, payable at such times and under such conditions as they would have been entitled to receive the legacies given, in case his wife died unmarried. He appointed his wife * executrix during her [* 534] widowhood subject to no control from his executors or either

of them; and he appointed his brother and brother-in-law executors upon her marriage, or death without appointing executors under the power given to her. Then reciting, that she had been brought to bed of a daughter, since he began to write the foregoing, he bequeathed to his said daughter the like legacies as hereinbefore given to his sons that is to say, 1500l. and 1000l. and that she should have a

share equally with his sons in his estate and effects in the event of his wife's marriage, or her dying without a will, as before set forth, and an equal benefit of survivorship with his other children; such legacies and shares to be paid at such times and under such limitations respecting marriage as his daughter Harriet's shares and legacies.

By a codicil executed in 1789 the testator hoping, his daughter Harriet, while single, would continue to live with her mother, and being unwilling to lessen his wife's income unnecessarily, gave his said daughter 1000l. only at twenty-one instead of 2000l. the said 1000l. to be paid her on her marriage, or if she remains single after his wife's death, in the same manner as her other legacy of 20007. "thinking it right to make the fortunes of my two daughters more nearly equal, instead of the legacies hereinbefore given to my youngest daughter Juliana Caroline Joan," he bequeathed her 2000l. upon her day of marriage, provided she should be then twenty-one; if younger, then 10007. upon her day of marriage, and the other, when she should arrive at that age; and he also bequeathed to her the sum of 1500l. payable after his wife's death; and declared the said legacies payable under the same limitations as those of his daughter Harriet and that his said youngest daughter should have the same benefit of survivorship as his other children, and come in for an equal share with them of his estate and effects, in case of his wife's dying without a will or marrying again.

By another codicil, executed in 1790, reciting, that he had lately advanced 1000l. for his son John as a premium for being admitted into a partnership, the testator revoked the legacy of 8001. made payable to him at twenty-one.

The testator died in 1790. She died in 1794; leaving the

[* 535]

His widow did not marry again. six children mentioned in her husband's will surviving. By her will she gave all the money * arising, after all her debts paid and the legacies under the will of her husband, to be divided share and share alike between her three sons and youngest daughter, George, Joseph, and Henry Sparkes, and Juliana Caroline Joan Sparkes. John and Harriet Sparkes received their legacies. Harriet married Heapy.

The bill was filed by George, Joseph, Henry, and Juliana Caroline Joan praying an account of the personal estate, and a declaration, that the legacies given by their father's will to Harriet, and the sums advanced by the testator in his life to John, together with the legacy given to him, should be taken as a full discharge and satisfaction of what they would be entitled to under the marriage settlement.

The cause came on for farther directions; and stood some time for judgment.

MASTER OF THE ROLLS, [Sir RICHARD PEPPER ARDEN]. This is exactly upon the same ground as Hinchcliffe v. Hinchcliffe (1), and (1) The preceding case. See ante, Ellison v. Cookson, vol. i. 100; and the notes, pages 112, 259.

is a stronger case. I consider that case in a great measure as a case of covenant; for the testator was indebted for all, he put in his own pocket; and it is hardly possible to suppose, being accountable for this money to his children, he should mean them to have both. That case would not have created so much difficulty, if it had been upon covenant; for then he would beyond all question have satisfied that covenant. The question is, whether there are any circumstances in the provision made by the will different from that by the settlement, to show, the one is not intended to be in lieu and satisfaction for the other. It falls within the principle of Lee v. D'Aranda, 3 Atk. 419; 1 Ves. 1, and those cases, where a man. has covenanted to do a thing, and has done something tantamount to it (1). When it comes to be a question between parent and child, small circumstances are not sufficient to repel the presumption, which with regard to third persons would be sufficient. Here there is nothing but the circumstance of making the payment three months after the death of his wife instead of at her death. The provisions by the will are much greater than by the settlement. Upon the will there are many circumstances to show, the testator could not have intended them to have both. From *the [*536] directions as to maintenance and education he evidently means portions: and I cannot collect any one circumstance from the will to show, that he had not in contemplation any provision, he had made by covenant or otherwise upon his marriage, and intended a satisfaction. The slight difference of being payable within three months after the death of his wife instead of immediately upon her death cannot make a difference, to show, he did not mean a satisfaction of a covenant, which is literally fulfilled, and more. The principles of Haynes v. Mico, 1 Bro. C. C. 129, cannot be considered as applicable. Therefore this is a satisfaction.

1. As to the doctrine of satisfaction in a case between parent and child, see the note to Ellison v. Cookson, 1 V. 100, referred to in the last preceding note. 2. That a covenant may, in certain cases, be considered as performed when a tantamount effect has been produced, see note 3, to Wilson v. Piggot, 2 V. 351; but (although Lord Alvanley (ARDEN], in the principal case, thought the questions, when growing out of marriage settlements, and arising with reference to parent and child, were, "in a great measure," similar) Lord Eldon in Trimmer v. Bayne, 7 Ves. 515, observed, there is this distinction between cases of double portions and covenants, namely, that in considering whether the obligations can be held to have been complied with, slight circumstances of difference are overlooked with regard to double portions; whilst a stricter rule must be applied as to the satisfaction of a covenant. The same distinction had been previously recognized by Lord Hardwicke in Clark v. Sewell, 3 Atk. 98, as it has since been by Lord Manners in Monck v. Lord Monck, 1 Ball & Bea. 304.

(1) See Richardson v. Elphinstone, ante, vol. ii. 463. Personal estate, taken under an intestacy, no satisfaction. Twisden v. Twisden, post, ix. 413.

MACKELL v. WINTER.

[1797, AUGUST 1, 4, 14.]

VESTING of a legacy postponed to the time of payment, and a limitation over in nature of a cross-remainder implied from the general intention; reversing a decree that it vested at twenty-one. (a)

The distinction between a legacy given at twenty-one and payable at twenty-one is a positive rule of the Ecclesiastical Court, adopted as to personal legacies, but not as to real estate: and not approved, or to be extended, (b) [p. 543.)

In this cause the decree, pronounced at the Rolls (ante, 236), declared the Plaintiff entitled to two thirds, and Catherine Winter to one third. Catherine Winter married James Bolger; and they appealed from the decree.

Attorney General [Sir John Scott], Mr. Lloyd, and Mr. Campbell, for the Appellants. 1st. The interest, the grandsons took during their minority, was not a vested interest: 2dly, If it was, it was capable of

being devested: 3dly, If so, attending to the gift of the whole [* 538] over to Bundy, a gift to the grand-daughter arises by * implication upon the principles of cross-remainders. The testatrix did not mean, that this property should ever be separated. The two grandsons might have died very young, and the grand-daughter might have survived them, and yet have died under twenty-one: it would be a singular intention to impute, that in that interval the two thirds should be considered as belonging to the representative of the survivor of the grandsons, but in the event of her death under twenty-one and unmarried, that vested interest should be devested, and attracted by her share should go over to Bundy. A much stronger implication has been made by enlarging an estate upon the general intention against express words, that no larger estate should be taken; as in Robinson v. Robinson, 3 Atk. 736. 2 Ves. 225. 1 Bur. 38. The Master of the Rolls wished to decide in favor of the grand-daughter; but thought, that in order to do so, he must add a term to the will: but that is not necessary. There is a sufficient ground for implication: 3 Leon. 55. Com. Dig. 3. Devise, N. 12. Doe v. Summurset, 2 Black. 692. Stanton v. Peck, before Lord Kenyon at the Rolls, as to cross-remainders.

Solicitor General [Sir John Mitford], and Mr. Graham, in support of the Decree. The Court is called upon to insert words in the will by means of what they call implication. A will is never construed to give property by implication, unless that, which is clear and plain upon the will, cannot have effect, if that implication is not made. In the case in Leonard of a devise to A. till the testator's daughter should attain twenty-one, and if she died, to B. the daughter being heir, to whom the estate would have descended, and there being therefore no other person, who by possibility could take,

(a) See ante, p. 236, note (a) to S. C.

(b) See 2 Williams, Exec. 881.