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life only, and an annuitant claiming a perpetual annuity must establish an exception in his favour: This the annuitant in the present case has in my opinion failed in doing. On the authority then of the cases which I have mentioned (namely, Blewitt v. Roberts, Hedges v. Harpur, 9 Beav. 479, and Innes v. Mitchell, 6 Ves. 464, 5 R. R. 360; 9 Ves. 212, 7 R. R. 163), and on principle, I am of opinion that the annuity in this case is not perpetual, and is of no longer duration than the life of the annuitant."

The same principle has been followed in the Irish cases of Whitten v. Hanlon (1885), 16 L. R., Ir. 298, and In re Forster's Estate (1889), 23 L. R., Ir. 269, in both of which there was a simple gift of an annual

sum.

The decision in Hedges v. Harpur, referred to by Lord TRURO in Yates v. Maddan, was a decision of Lord LANGDALE, M. R., in 1846, reported in 9 Beav. 479. This was, many years afterwards (in 1858), reversed on appeal by the Lords Justices TURNER and KNIGHT BRUCE, as reported 3 De G. & J. 129, 27 L. J. Ch. 742. The testator in that case had bequeathed as follows: "to each of my five daughters £400 per annum to be payable half-yearly, during the term of their natural lives, and after their respective decease, I give the same to their children respectively, share and share alike, such children not to be entitled to more than their deceased parents' share; and in case any or either of my said daughters shall die without issue, then I direct such annuity to cease and fall into the residue of my estate." The Lords Justices came to the conclusion that the annuities so given were perpetual annuities. Lord Justice TURNER, upon the whole language of the gift, and particularly the clause directing that the annuities should cease in a certain event, came to the conclusion that the primary intention was that they should be perpetual annuities. He concludes: "Upon the whole, therefore, with all possible deference to the judgment of the late Lord LANGDALE, I dissent from the conclusion at which he arrived, and am of opinion that upon the true construction of this will the children of the daughter took perpetual annuities. I have the less hesitation in thus differing from Lord LANGDALE, because I observe that the case of Heron v. Stokes (see No. 3, p. 156, ante) was not cited in the argument before him, and, as the case stood before Lord LANGDALE, Blewitt v. Roberts was the governing authority; but that case, as to the only part of it material to the present, has since been considerably shaken. There may, indeed, be some grounds for supporting even that part of the case, but they were not referred to in the judgment, and certainly the case cannot be considered to have the same authority as it had when this case was decided." Lord Justice KNIGHT BRUCE said: "I agree in my learned brother's conclusion as to the

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effect of the will under consideration, nor perhaps should I have thought the point one of difficulty but for the opinion of Lord LANGDALE expressed in the year 1846. Respectfully dissenting from that opinion, I am not persuaded that his Lordship's determination would have been as it was, if all that has been discussed and decided since had been discussed and decided before that year. I do not however say that in the year 1846 I should not have interpreted the will before us as I now interpret it.'

Upon the whole therefore the former of the two principal cases above given (Blewitt v. Roberts) must be regarded with caution. So far as it supports the general principle stated in the former branch of the rule it appears to be unshaken; and it is directly applied in the Irish cases above cited. But whether Lord COTTENHAM was right in applying the rule and in not finding in the context reasons for making an exception is at least doubtful. And the actual decision in Blewitt v. Roberts must be scrutinised in the light of the principles established by the higher authority of the House of Lords in Stokes v. Heron, and having regard to the comments of the Lords Justices TURNER and KNIGHT BRUCE On the appeal in Hedges v. Harpur.

AMERICAN NOTES.

In Morgan v. Pope, an annuity of $500, to be paid out of the income of the whole estate, for the support of the testator's daughter and her children, was held not to be a perpetual annuity, but an aggregate fund for the support of the daughter and her children "so long as they may live, and in case of the death of one or more, it goes to the survivor or survivors."

But in Hewson's Appeal, 102 Penn. St. 55, where A. by will directed B. to take charge of his children, B. "to receive annually" from his estate, "for her services," $500, it was held that "as the care of the children ceased upon their attaining majority," the annuity then also ceased.

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WHERE a testator's estate is insufficient for payment of legacies and annuities, the practice of the Court is to value the annuities, and direct that legacies and annuities abate proportionately. If, after such order, one of the annuit

No. 4.- Long v. Hughes, 1 De. G. & Sm. 364, 365.

ants dies, his personal representatives receive the whole of the estimated value of the annuity subject to the abate

ment.

Long v. Hughes.

1 De G. & Sm. 364-365 (there placed as an appendix to Wroughton v. Colquhoun, 1847, 1 De G. & Sm. 357).

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*In this case the testatrix Sarah Evans, by her will, dated the 3rd of April, 1822, after giving several pecuniary legacies, bequeathed unto William Messiter and his assigns, during his life, an annuity of £30, and unto Mr. James Draper and his assigns, during his life, an annuity of £20, and bequeathed several other annuities in the same form, all which said therein before mentioned annuities she directed should be paid to the respective annuitants thereof by equal half-yearly payments, without deduction for taxes or otherwise; and that the first half-yearly payment of the said annuities respectively should be made at the end of six months next after her decease.

On the cause coming on to be heard on this day (Feb. 26th 1829) for further directions on the Master's report,

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It was ordered, that the other legacies bequeathed by the said testatrix were not entitled to any preference over the annuities. bequeathed by her, and that the said other legacies and the said annuities ought to abate proportionably; and for the purpose of such proportional abatement, it was ordered, that it should be referred to the Master to ascertain the value of the said annuities respectively, as at the death of the testatrix; and in so doing he was to have regard to the circumstance that the said annuities were given free from legacy duty; and he was to compute inter[*365] est, at the rate of £4 * per cent per annum on such estimated value of the said annuities respectively from the death of the testatrix down to the time to which interest should be computed on the legacies. And it was ordered, that it should be referred to the Master to compute subsequent interest on the legacies bequeathed by the will of the said testatrix from the foot of his said Report.

The cause coming on again on this day (Dec. 9th, 1831) for further directions,

It was ordered, that the Master should apportion the remainder of the said several sums of £2674 1s. 5d. and £85 13s. 11d. cash

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and the said residue of the said balance, after payment of costs, as among the annuitants and legatees rateably; and in so doing, the Master was to take the annuities at the value mentioned in his Report, dated the 12th of August, 1829, and to add to the apportionment of each annuitant the legacy duty that would be payable in respect of the sum so apportioned.

And it was ordered, that the Master should compute interest at the rate of £4 per cent per annum on the balance remaining due on such estimated value of the annuities respectively, and on the balance remaining due in respect of the legacies from the foot of his last Report.

And if the said Master, in making such apportionment, should find that any of the annuitants or legatees had not received the sums apportioned to them by his said Report he was to add the same to the sums to be apportioned to them respectively.

And it was ordered, that what should be so apportioned to the said legatees and annuitants respectively, should be paid by the said Accountant-General, out of the funds therein mentioned, to the several persons to whom the said Master should report the same to be due, or to their respective legal personal representatives, in case any of them were or should be dead before the same was paid, except in respect of certain pecuniary legacies therein mentioned.

ENGLISH NOTES.

The precedent laid down in the principal case was acted on by Vice Chancellor KNIGHT BRUCE in the case of Wroughton v. Colquhoun (1847), 1 De G. & Sm. 357. It was there stated to the Court that an annuitant whose annuity had been valued under the order made in the principal case having died, the whole fund was transferred to the annuitant's personal representatives. And the Registrar concurred in representing this to be the usual course in such a case. The VICE CHANCELLOR, in giving his decision, said: "I understand the course to be settled; and that it is to give the annuitant the benefit of the chance of dying before the payment of the annuity in full has exhausted the fund set apart at its reduced value. Nothing could try the question better than the case mentioned by Mr. Russell (viz. the principal case above), where the annuitant had died, and her representatives were allowed the full value of the annuity."

Where a testator, who was under a covenant to pay an annuity, had left the annuity in arrear, and his assets were insufficient for the payment of this and other debts, on an application by the executor for directions

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Mr. Justice PEARSON directed that, in the apportionment of assets, the value of the annuity should be taken as the amount of the arrears plus the present value (as at the date of the order) of the annuity according to the government tables. Delves v. Newington (1885), 52 L. T. 512. This is consistent in principle with the decision of the same Judge in Re Wilkins, Wilkins v. Rotherham (1884), 27 Ch. D. 703, 54 L. J. Ch. 188; and the decision of Lord ROMILLY in Heath v. Nugent (1860), 29 Beav. 226.

The principle underlying the latter part of the rule is similar to that on which Palmer v. Craufurd (1819), 2 Wils. 79, was decided by Sir T. PLUMER, M. R. The testator had directed his trustees to invest £3000 in the purchase of a government life annuity which they were to pay to C. during his life. C. having died without the investment having been made, his executors were held entitled to the £3000. For C. might have elected to take the money.

AMERICAN NOTES.

"An annuity charged on the personal estate is a general legacy, and in cases of deficiency, all annuities and legacies abate ratably, for since they cannot all be paid in full, they shall all abate ratably, on the principle of the maxim, 'equality is equity,' or 'equity delighteth in equality.' This rule is subject to some exceptions, for there are cases where some annuities and legacies are to be paid in priority to others; but the onus lies on the party seeking priority to make out that such priority was intended, by clear and conclusive proof." Appeal of Trustees, 97 Penn. St. 200.

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It is always a question of intention, and the relations of the several legatees, in respect to their legal claims upon the testator for support, should be taken into account in determining whether the general rule of abatement should be departed from. As between legacies which are in their nature mere bounties, the presumption of intended equality will prevail unless there is unequivocal evidence to the contrary." In this case a legacy of the income of $10,000 to the widow for life was preferred. Towle v. Swasey, 106 Massachusetts, 100.

"The object of inquiry in all the cases is the same. It is to ascertain and fulfil the wish and intention of the testator. In view of the condition and parties and estates in this country, we are satisfied that this is best done in cases like Orr v. Moses, 52 Maine, 287, where the testator has evidently contemplated the setting apart of a sum sufficient to provide for the annuity, by following the rule laid down in that case, subjecting the estate once for all to the appropriation of a sum apparently sufficient to meet all, except remote and unforeseen contingencies, and holding the annuitant to abide the result. . . . But when as in the will under consideration there is nothing to indicate that the testator contemplates any such appropriation or segregation of a part of the property to provide for the annuity, and only a naked remainder is given to collateral kindred as residuary legatees, the right of the annuitant is clearly

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