"Eldest" and "first-born" are synonymous terms (k). "First born." elder son. A younger son, becoming an eldest son and succeeding to the Younger son estate, is excluded from a portion (1), though the portion may have becoming an already vested in him (m); and this rule will hold good, although there is a gift over on a younger son becoming an eldest son before he attain twenty-one (n). A younger son becoming an elder son and so taking the estate does not thereby lose his portion, where there are no words in the will or settlement to exclude him; as where the exclusion was only of the eldest son by name (o); nor does a younger son lose his portion as Younger son such by becoming the eldest son, if he does not thereby get the not taking estate (p); as, where his father and elder brother had executed a disentailing deed (2); nor where he succeeds to the estate, not under the settlement, but by descent (r). The word "younger" includes all the children except the one who succeeds to the estate (s); and the representatives of a younger child dying in infancy will not take, as the portion never was wanted (t). Where there is a limitation over in the event of a younger son becoming an eldest, or only son, it will not, without more, be construed to mean a child becoming actually entitled under the limitations, but simply an eldest son. Thus, a younger son becoming an eldest son loses his portion, although he is wholly unprovided for, if the will expressly excludes him on his becoming an eldest son (u). The words, "if younger son become the eldest son," mean the eldest surviving son in the lifetime of the father (x). A gift over of this kind, as a general rule, takes effect at any time before the time of payment, though the portion be vested (y). But Peacocke v. Pares, 2 Keen, 689. (r) Sing v. Leslie, 2 H. & M. 68; 10 Jur. N. S. 794. (s) Scarisbrick v. Lord Skelmersdale, 4 Y. & C. 78. (t) Davies v. Huguenin, sup. (u) Livesey v. L. 13 Sim. 33; 6 Jur. N. S. 752, V. C. E.; 2 H. L. 419. See Matthews v. Paul, 3 Sw. 323; Domvile v. Winnington, 26 Ch. D. 382; 32 W. R. 699, Kay, J. (x) Harvey-Bathurst v. Stanley, 4 Ch. D. 251, C. A.; 2 App. C. 699. (y) Chadwick v. Doleman, sup.; Savage v. Carrol, 1 Ba. & Be. 265; Teynham v. Webb, 2 Ves. S. 198; Matthews v. Paul, sup. X estate. Shifting of estates construed strictly. Legacy duty on portions. Succession duty. Power to raise succession duty by mortgage. if the gift over be limited, in the event of a younger son becoming an elder son before he attains twenty-one, or other period, any other event will be excluded, and he will not lose his portion by subsequently becoming an eldest son before the time of payment, and additional portions will follow the nature of the original portions, though the limitation may not be clearly expressed (). A settlement of an estate with shifting clauses ought not to contain a clause postponing the vesting of portions until the death of the person creating them (a); nor should it contain a clause, avoiding the portions on the estate shifting (a). Where there is a limitation of two estates, the one of which is to shift in the event of the other being held by the same member of the family who first takes the secondary estate, that limitation is a condition which must be performed strictly; and if it cannot be performed strictly, the shifting clause fails to take effect (c). (6.) Legacy and succession duty. In raising portions by mortgage, the trustees should take care that the legacy duty either be paid by the portionist, or deducted in ascertaining the amount secured by the mortgage, as the trustees are liable for the duty (d), as well as the devisees of the estate subject to the portions whether in fee or for life (e). But the trustee or devisee paying the duty can recover it from the portionist (ƒ), unless the portions were devised clear of all deductions (g). The same observations will apply to succession duty, on portions raiseable under a settlement of real estate, under 16 & 17 Vict. c. 51 (h). S. 44 of the Succession Duty Act (16 & 17 Vict. c. 51), enacts that, besides the successor, the following persons shall be personally accountable for the duty to the extent of the property received by them, namely, "every trustee, guardian, committee, tutor, or curator, or husband, in whom respectively any property, or the management of any property, subject to such duty shall be vested, and every person in whom the same shall be vested by () Windham v. Graham, 1 Russ. 331. (a) Viscount Holmesdale v. West, 12 Eq. 280, V. C. Bacon. (c) Fazakerly v. Ford, 4 Sim. 390; Taylor v. Earl of Harewood, 3 Ha. 372; Harrison v. Round, 3 De G. M. & G. 190; 17 Jur. 763; Meyrick v. Laws, 6 Ch. 237. (d) 45 Geo. III. c. 28, s. 5. (e) Att. Gen. v. Jackson, 1 C. & J. 101. (f) Hales v. Freeman, 1 Br. & B. 391. (g) Stow v. Davenport, 5 B. & Ad. 359. (h) See 2 Dav. Conv. 1012, ed. 3; 463, ed. 4. succession alienation or other derivative title at the time of the succession Mortgage for becoming an interest in possession;" and all those persons are duty. authorised to compound, or pay in advance, or commute, the duty, and retain the amount thereof out of the property subject thereto, "or to raise such amount and the expenses incident thereto, at interest on the security of such property, with power to give effectual discharges for the same;" and such security is to have priority over any charge or incumbrance created by the successor. 308 CHAPTER XXIX. MORTGAGES BY EXECUTORS, BY TRUSTEES FOR SALE, AND FOR PAY- 5. What words authorise a mortgage or sale 6. Mortgage or sale by executors of realty under a charge Page. 308 311 313 315 316 317 320 8. Insertion of a power of sale in a mortgage by trustees General powers of executors. (1.) Mortgages by executors. THE whole personal estate of the testator vests in the executor, who, from the duties of his office and the nature of his trusts, must necessarily have an absolute power over it (a), whether specifically bequeathed (U), or limited in trust (c), or neither. The executor's (a) See Nugent v. Gifford, 1 Atk. 463. But see Wilson v. Moore, 1 My. & K. 356; M'Leod v. Drummond, 17 Ves. 161. (b) Ewer v. Corbet, 2 P. Wms. 149; Burting v. Stonard, ib. 150; Langley v. (c) M'Leod v. Drummond, sup. powers. first duty is to provide for payment of debts; and, if the general General undisposed of property or the fund expressly provided by the testator is not sufficient for such purpose, the property specifically bequeathed or given in trust must be resorted to. Nor can a testator, by any testamentary disposition of his personal estate, frustrate or delay the claims of his creditors (d). We accordingly find the adjudged cases and text books, when speaking of the powers vested in the executors, using strong expressions and we also find the judges showing great reluctance to fetter the executors in the exercise of their functions. Notwithstanding this great discretionary authority, numerous cases are to be found in the books, arising from the circumstances attending the disposition by executors of their testator's assets; and on some of the points a considerable difference of opinion has existed. The power of the executors to dispose of a specific legacy seems Power over a specific to have been formerly questioned. An early case (e) was considered legacy. as militating against this power; but it has been since observed (ƒ) that that was not, in fact, the case of a specific bequest, it being a charge on a particular part of the assets, and there were supposed to be strong circumstances of fraud in the conduct of the parties. Succeeding cases have established this power of disposition by the executors beyond question. Sir Edward Sugden, in his Treatise on Vendors and Purchasers, raised a doubt whether it is safe to take an assignment of a specific legacy from the executor without the concurrence of the specific legatee, lest the executor should have assented to the bequest, and he cited Thomlinson v. Smith (Finch, 378). It is submitted this was a case of gross fraud. If a purchaser or mortgagee bonâ fide deals with an executor within a reasonable time after the testator's death, and obtains possession of the muniments of title, a specific legatee would never be permitted to set up the executor's assent against the sale or mortgage, for, by sale and delivery, the title of the purchaser or mortgagee is complete (g). As to set off of a debt due by the specific legatee to the estate against the specific legacy after appropriation (h). As the executor may absolutely dispose of the testator's assets Mortgage of for the general purposes of the will, there seems no good reason why, in the exercise of a sound discretion, and presuming the lan (d) Andrew v. Wrigley, sup. (g) See Scott v. Tyler, 2 Dick. 725; 17 Ves. 166. (h) Ballard v. Marsden, 14 Ch. D. 374, Fry, J. assets by executor. |