losses have been incurred, and paid, and a general account is sought, I do not execute the contract against law; but I should do injustice, if I did not give the advantage, if any advantage has arisen, or charge any loss, which has happened. If it was a smuggling business, and they had been settling profit and loss upon a course of smuggling transactions, I should do great injustice, if I did not bring that into the account. So upon stock transactions, though the Court would not execute the contract, yet where the parties have been settling stock dealings, and paying differences, I must bring those into the account.

Direct the account generally (1).

SEE, ante, notes 2, 3, and 4 to Brandon v. Johnson, 2 V. 517, as to demands growing out of illegal transactions.

PHIPPS v. LORD MULGRAVE.

[1798, FEB. 26.]

10,000l. PROVIDED by settlement for one daughter or younger son: 15,000l. if more: there being but one daughter, the father by will under a power reserved to him appoints the time of payment and the application of the interest of the 15,000l. provided for her by settlement, and gives her the farther sum of 50001. She was held entitled to 20,0001.

Charge upon land payable at a future day not vested till the time of payment, (a) [p. 614.]

Bequest of personal estate after a contingent limitation in tail, which did not take effect, established, (b) [p. 614.]

By articles previous to the marriage of Lord Mulgrave, dated the 16th of June, 1787, in consideration of the intended marriage and of the portion of 10,000l. which Lord Mulgrave was to receive with his intended wife, he covenanted to settle a competent part of his real estate in the county of York to the use of himself for life; remainder to the intent, that his intended wife might, in case she should survive him, receive a yearly rent-charge of 15007. for her life; re ́mainder to the use of trustees, their executors, &c. for the term of 500 years; remainder to the use of himself in fee; and it was declared, that the said term * was intended in the first place for better securing the said rent-charge; and without prejudice thereto, by sale or mortgage, and by and with the rents and profits to raise the following portions for the children of the marriage other than an eldest or only son: if there should be but one such child, not being an eldest or only son, the sum of

[614]

(1) The latter decision in this case has been over-ruled. See Ex parte Mather, ante, 373, and the note, 374.

(a) See, ante, p. 135, note (a) to Pearce v. Loman.

(b) As to limitations of chattels, see, ante, note (a) to Douglas v. Chalmer, 2 V. 501; and as to estates tail in chattels, note (a) to Fordyce v. Ford, 1 V. 536.

10,000l. to be paid at such time as Lord Mulgrave should by deed or will appoint; and, in default of such appointment, to be paid to such child, if a son, at twenty-one, if a daughter, at twenty-one or marriage and in case there should be two or more such children, not being an eldest son, to raise the sum of 15,000l. to be divided between them in manner therein mentioned; with power to Lord Mulgrave to provide interest at 5 per cent. and in case of no such provision 4 per cent. to be the rate of interest.

The marriage took place. Lord Mulgrave survived his wife, and died upon the 9th of October, 1792: leaving one daughter, the only issue of the marriage; and having on the 8th of February, 1792, duly executed the following will:

"I Constantine John Lord Mulgrave by this my last will and testament give and bequeath all my estates real and personal whatsoever subject to the limitations restrictions and directions hereinafter mentioned or in any codicils or codicil of the same date hereunto annexed in trust to Thomas Lord Longford Abraham Grimes Esq. and Thomas Goulton Esq. for my first and every other son in tail male failure of such issue to my brother Henry and his first and every other son in tail male failure of such issue to my brother Augustus and his first and every other son in tail male failure of such issue to my daughter Ann Elizabeth Cholmley Phipps and her first and every other son in tail male and in failure of such issue to her daughters respectively in succession failure of such issue to the daughters of the last surviving Lord Mulgrave. In all the foregoing cases without impeachment of waste other than wilful. My will is that my real estate shall be subject in the first instance to the payment of the 15,000l. provided or intended to be provided for my daughter by the settlement or articles on my marriage that is the interest of the marriage portion at 5 per cent. from the time of my death be paid to her guardians without any account whatsoever the whole to be applied by them or any part to the education maintenance or otherwise as they may judge expedient and the further sum of 5000l. on the day of her coming of age or marriage whichsoever first shall happen to be paid chargeable on my freehold estate."

[* 615]

*

The testator gave his daughter the jewels, which were her mother's; and after giving some directions, that are not material, appointed his brother Henry and four other persons executors.

The bill was filed on the part of the infant daughter, praying, that she may be declared entitled under the marriage articles and will to the sum of 15,000l. and under the will to the farther sum of 5000l.; and that the said sums may be declared to have become vested interests on the death of the testator payable at twenty-one or marriage; and that the Plaintiff may be declared entitled to the personal estate of the testator.

Attorney General [Sir John Scott], and Mr. Campbell, for the Plaintiff. The intention was, that the Plaintiff should have 20,000l. charged upon the freehold estate. The question is, whether a mis

take of the event in the mode adopted to give her that sum shall frustrate the clear intention? Milner v. Milner, 1 Ves. 106, which in Amb. 476, appears to have been a very solemn determination, is extremely like this case. Savile v. Blacket, 1 P. Wms. 777, and Williams v. Williams, 2 Bro. C. C. 87, also bear upon it. The intention to give a sum of money shall be executed, though the fund fails or does not exist. Here the fund exists to the amount of

10,000l.

As to the second question, upon the validity of the disposition of the personal estate, Clare v. Clare, For. 21, is in favor of the Plaintiff: but there certainly are many cases against it (1).

Solicitor General [Sir John Mitford], and Mr. Ward, for the Defendant. The cases cited upon the first point do not apply without assuming the real question: viz. as to the intention. In Milner v. Milner there was an express declaration, that the daughter should have 10,000l. Here there is no declaration of a design, that the Plaintiff shall have 20,000l. The question is, what the testator means by the marriage portion? It is the portion, he received upon his own marriage. The words "that is" necessarily govern the whole of the subsequent words. *Upon the other point Clare v. Clare is repeatedly [*616] cited as an authority, and even by Mr. Fearne; it ought therefore to be known, that it has been repeatedly over-ruled; particularly in Sabarton v. Sabarton, For. 245, which Lord Talbot directed to go to the Court of King's Bench; and in his own notebook he prefaces that direction by observing, that there had been a variety of opinions touching the validity of limitations of personal estate after a contingent limitation in tail. In Knight v. Ellis, 2 Bro. C. C. 570, Lord Thurlow was much perplexed between the two cases, Stanley v. Leigh, 2 P. Wms. 685, and Clare v. Clare; as Lord Talbot when he decided the latter, must have had the former fresh in his memory.

Lord CHANCELLOR [LOUGHBOROUGH]. That point is quite clear. I have taken it to be most perfectly understood, that Clare v. Clare was destroyed by Sabarton v. Sabarton. I remember many years ago hearing Mr. Forester speak of it in that manner.

Upon the other point, it is plain beyond a doubt, that Lord Mulgrave at the date of the will, a very little before his death, was speculating, what his daughter would have, not only what she would have ultimately, but what would be the allotment for maintenance and education; which he gives out of the interest of the marriage portion at 5 per cent. to be paid to her guardians without account. He meant, she should have 15,000l.; the interest at 5 per cent. payable for maintenance; eventually and contingently, that 50007. should be added. The mistake, he fell into, was, that he thought, she would have been entitled under his marriage settlement to 15,000l. as a marriage portion. That is what must have been

(1) See Mr. Williams's note in the last edition of Forester.

in his mind. There is great difficulty in construing it the portion, he received upon his marriage. He might forget the portion provided for a daughter: but he could not forget, that he had received 10,000l. upon his marriage. He recollected, that 15,0007. was settled: but he mistook the event. Upon that supposition he thought fit, having dominion over the whole fortune, to give 15,0007. and 5000l. as the fortune, he thought proper for an only child. It is the common case, where the quantum is clear, but there is a mistaken description; and is precisely Milner v. Milner.

*

I do not think the 50007. vested. Declare, that the Plaintiff will be entitled to 15,000l. and 5000l. upon her coming of [*617] age or marrying; with liberty to apply upon either of those events; and in the mean time the interest of the 15,000l. at 5 per cent. to be applied. I must take care to make no declaration, that it is a vested interest (1).

1. A BEQUEST Over, of personal estate, after a contingent limitation in tail, is valid; though, if the contingency happened, the property would be absolute in the first taker. Lyon v. Mitchell, 1 Mad. 479, 486. And a limitation over, of real property, after a devise of a previous estate tail in the same lands, may be good, notwithstanding the preceding estate tail never takes effect. See, ante, note 2 to Holmes v. Cradock, 3 V. 317.

2. It is a maxim, adopted by our own Courts of Equity from the Civil Code, falsa demonstratione legatum non perimi; Whitfield v. Clement, 1 Meriv. 404; and as a mistaken description of the subject of gift will not invalidate a legacy where the intent is clear; (Clark v. Guise, 2 Ves. Sen. 618;) so, a mistake in computation will be rectified. Milner v. Milner, 1 Ves. Sen. 107; Danvers v. Manning, 2 Brown, 22.

3. That a portion charged upon land, and payable at a future day, does not vest till the time of actual payment comes; see, ante, note 4 to Stackpole v. Beaumont, 3 V. 89.

PRINGLE v. HODGSON.

[1798, FEB. 27.]

SETTLEMENT after marriage of stock standing in the name of the wife, the husband being insolvent, and soon after a bankrupt, set aside upon the bill of the assignees after the death of the husband; the stock did not survive; but was decreed to the assignees, subject to a provision for the widow. (a)

Assignees of a bankrupt recovered in an action against the Bank, stock standing in the name of the wife, [p. 620.]

ELIZABETH BELL, being entitled to the sum of 8501. 4 per cent. Consolidated Bank Annuities standing in her name, in July 1796,

(1) See Mr. Cox's note to The Duke of Chandos v. Talbot, 2 P. Wms. 612; and Pearce v. Loman, ante, 135.

(a) Assignees take the property subject to all the equities, which affect the bankrupt and so, would be bound to make a settlement upon the wife out of her choses in action and equitable interests assigned to them, as the husband would be bound to make one. See 2 Story, Eq. Jur. § 1411, and cases cited; Mumford v. Murray, 1 Paige, 620; Smith v. Kane, 2 Paige, 303; Van Epps v. Van Deuser, 4 Paige, 64. See, ante, note (d) to Ball v. Montgomery, 2 V. 607.

married William Hodgson. No settlement was made: nor was any agreement for a settlement entered into. In August 1796, William Hodgson being insolvent and very much distressed, and being actually arrested, prevailed on his wife to join him in selling out 4001. part of the said 8501. Bank Annuities: and the money produced by the sale was applied in discharging the debt, for which Hodgson was arrested, and other debts due by him. In the same month Hodgson and his wife joined in a transfer of the remaining sum of 4501. Bank Annuities, then standing in the maiden name of Elizabeth Hodgson, into the joint names of John Nanson and Samuel Rochat; and by indentures of settlement executed upon that occasion, dated the 6th of August, 1796, it was declared, that the said 450l. 4 per cent. Consolidated Bank Annuities had been transferred into the names of John Nanson and Samuel Rochat upon trust to pay the interest and dividends thereof, as the same should become due and payable and be received during the life of said William Hodgson, unto such person or persons and for such purposes only as Elizabeth Hodgson should or might by any writing or writings under her hand from time to time notwithstanding her coverture appoint; and for want of and until appointment, into her proper hands for her sole and separate use exclusive of her husband, who was not to intermeddle therewith; nor were the same or any parts thereof to be subject to his control, debts, contracts or engagements; with the usual clause, that the receipt of her, or the persons, she should appoint to receive the same, should be a sufficient discharge; and after the decease of William Hodgson, leaving his wife surviving, upon trust to transfer the said 450l. Bank Annuities

to Elizabeth Hodgson, her executors, * administrators and [*618] assigns. By this settlement also a legacy of 400l. the

property of William Hodgson, was assigned upon similar trusts for the benefit of his wife.

William Hodgson was before and at the time of executing the said indenture in distressed and insolvent circumstances; and upon the 10th of January, 1797, a commission of bankruptcy issued against him. In March 1797 the bankrupt died; having appointed George Pringle, the assignee under the commission, his executor.

The bill was filed under the assignee to have the settlement set aside, as fraudulent and void as against the creditors of the bankrupt. The Defendant Elizabeth Hodgson gave up the legacy; but insisted, that she was entitled to the 4501. stock absolutely, or in all events to a proper provision thereout. By her answer she stated, that at the time of her marriage she was ignorant, that William Hodgson was insolvent or distressed; and that the transfer of the 450l. stock took place without any solicitation on her part: but she admitted, she knew his situation at the time of executing the settlement.

Attorney General, [Sir John Scott], and Mr. Piggott, for the Plaintiff. It is contended, that the stock, not being reduced into possession by the husband, survived to the wife; but the question turns upon this: what power the assignees had to dispose of the