No. 5. Earl of Stafford v. Buckley, 2 Ves. Sen. 171. - Rule. paramount, and we think a present distribution among the residuary legatees can only be ordered when an appropriation is made with the consent and approbation of the annuitant, or upon condition that each residuary legatee shall give security, satisfactory to the Judge of probate, to refund so much of the share he receives as may hereafter be found necessary to make good the annual payment required from the estate." No. 5. EARL OF STAFFORD v. BUCKLEY. RULE. AN annuity, although issuing out of personal estate, may be granted with words of inheritance, and will be descendible accordingly. But such an annuity is not affected by the Statute of Frauds concerning wills of "lands and tenements," nor is it within the Statute De donis: so that if given by will to "A, and the heirs of his body" the gift will operate as creating a fee simple conditional. Earl of Stafford v. Buckley. 2 Ves. Sen. 170-181. Richard Cantillon, in 1734, made his will;1* first, reciting [*171] the provision made for his wife on their marriage, he says, if there should be any deficiency in that, it should be satisfied out of his other effects: then, after giving several annuities and legacies, he says, "I hereby constitute and appoint S. and G. joint executors of this will; praying them to see the said jointure and legacies paid ;" and directs them to take care of the education of his daughter, to whom he gives £200 per annum, until she is married with their consent, or come of age; then directs them to intail on his daughter and her issue all the estate and effects, which should belong to him, after payment of the aforesaid jointure, annuities and legacies: but in case of her death and failure 1 Annuity charged on the Post-office, and as such to pass by grant or transfer. (until a sum should be paid to be laid out 1 Brown, 377. in land) continues a personal annuity, No. 5. Earl of Stafford v. Buckley, 2 Ves. Sen. 171–177. of her issue he desired them to divide moietively between his two nephews: "My intention being that the capital be laid out and secured and the interest be made good to my daughter for life and to her lawful heirs for ever, but in case of her and their failure, the same shall go to my said nephews moietively.” This will was not executed according to the Statute of Frauds: it was made in London, but having gone to the Indies, and sent for back again, it was very much damaged, and several blanks in it. Lord Stafford having married the daughter with the consent of the executors, he and his wife brought this bill for the general purpose of carrying into execution the articles made precedent to their marriage, so far as they relate to the estate of the testator, in which Lady Stafford was interested; to have an account of that estate so far as it came to the hands of any of the defendants; and to have that and the real estate of testator settled, conveyed, and disposed of according to the will and articles, and for that purpose to have several questions, made doubts between the parties, determined. The first question made is whether this annuity is to be considered as in nature of a rent and to partake of the realty1 or as a mere personal thing to a man and his heirs inheritable according to such rules of descent as the law allows to such personal things? And that in order to introduce another question, whether or no it could pass by a will not executed according to the Statute of Frauds? I am clearly of opinion, it is a mere personal annuity, having no relation to lands or tenements, or partaking of the nature of a rent by any means. First, this would be so, if the fact was, as the plaintiff's counsel endeavoured to represent as to this duty of four and a half per cent, but the fact fails them. Suppose it had been in the strongest manner for the plaintiff, viz. that King Charles I. had granted these islands to Lord Carlisle with a reservation of a strict rent of four and a half per cent, in specie on the product of the islands, and afterward King Charles II. had granted £1000 per ann. in money out of the produce of that rent to Lord Kinnoul and his heirs: this would have been 1 Money secured by turnpike tolls is within the Mortmain Act. See Knapp v. Williams, 4 Ves. 430 n., 4 R. R. 252. Also Howse v. Chapman, 4 Ves. 542; 4 R. R. 292. See also Finch v. Squire, 10 Ves. 41; 7 R. R. 337. No. 5.-Earl of Stafford v. Buckley, 2 Ves. Sen. 177, 178. a mere annuity, even supposing that had been the case, because a rent cannot be reserved or granted out of a rent. Part of a rent may be granted indeed but a new rent cannot be reserved or granted thereout, because no distress can be or assize taken of it, as there is nothing to be put in view of recognisors of the assize; which, the rule is, is necessary, and has been so determined. Consequently if the four and a half per cent in specie had been a rent like a corn-rent, this would not have been a rent; for this money to be paid out of that produce is another thing, and cannot be taken to be part of the old original rent, which was reserved in specie: but this is not like it. Consider the laws of Barbadoes (which is the principal, and I believe, the rest of the Leeward Islands fall under the same rule) and, the act of assembly, by which this is granted. It is in the express words of the grant a custom or impost, a duty on exports from the island, and no reservation out of the island, though it arises out of the produce: so that it has no relation to the case endeavoured to be made of it. Consequently this annuity in fee is a personal inheritance, what the law suffers to descend to the heir, but had nothing to do with the realty, as appears from Co. Lit. 20, and so not within the Statute of Frauds; for lands and tenements only are within it. An advowson comes indeed under that description; for it may be held under knight service; and rents partake of the nature of land, following that, and consequently are all within that statute; but nothing is within it which is not a real right or interest, or partaking of the realty; as this annuity is not, though granted in fee. The first remaining consideration is whether this which appears to be a personal annuity in fee, and consequently a personal inheritance descendible to the heir, is concluded or comprised in the will so that the executors have an interest in or power over it; for it may be either way. The second consideration is as to the limitations to be made: how far by this will they may take effect, or are too remote. As to the first, I think, it is a question of some doubt: and yet I do not know that it will be of consequence between the parties. *There are to be sure no words describing or [*178] giving it nor has testator given any part of the real estate; nor could it be devised, if named; because not executed according to the Statute of Frauds. As to his personal estate, he has made no particular legacy of the residue of the personal so as to include No. 5. : personal things which would go to the executors: much less personal things which would not go to executors, but are descendible to heirs according to a course of descent the law allows of as to that but here are words that point that way, viz. estate and effects, which are made use of more than once in the will. Where he intends to make a satisfaction to his wife for the deficiency of her provision on her marriage, he does it out of all his other effects; which words would have been sufficient to have charged any estate of his, that could pass by this will; whether such as is strictly personal and assets in the executors, or such personal as was descendible to the heir; therefore sufficient to have charged this annuity to have made satisfaction to the wife, if occasion to resort thereto; because there was a clear intent to provide a fund for that purpose, and that annuity would have passed by this will, if especially named. This is only an observation, not conclusive, on the nature of the will and use of the word "effects." In the clause creating the present question he has given nothing to the executors, nor made them residuary legatees in trust: and therefore nothing vests in them but what properly does so by naming them executors. All the rest of the personal estate that could pass to executors, would go to them: but this is a kind of personalty, which according to Doctor and Student would not be assets in executors, and consequently will not go to them by being named executors. The question is, whether on these words "to entail on her," &c. compared with the former part, there is sufficient to pass by words or implication this annuity to the executors, or whether there are not words sufficient to give them power to convey. See Williams v. Jekyll, 2 Ves. Sen 681, 683, &c. It is too much perhaps to say, that these latter words are sufficient to pass any interest to them, provided that did not pass by naming them executors; which it did not: but why should it not give them a power to convey? For one may give a naked power to executors to sell or convey, &c. without giving anything to them. Consider the words. The word "estate" is the most general that can be used; and according to all the cases sufficiently comprised all kind of estates, 2 Ves. Sen. 48; especially when by saying "estate and effects" he points at both real and personal; and therefore I do not see in point of law or reason, why, if this will had been executed according to the Statute of Frauds, these words would not have enabled these executors to have settled his lands in England; for No. 5.- Earl of Stafford v. Buckley, 2 Ves. Sen. 178, 179. it was his intent, these executors should be his trustees for that, and make a settlement of his whole estate; especially when it is said, after payment of the aforesaid jointure, &c. which carries me back to the observation of the direction to make good the jointure; and therefore this direction to the executors is as large as that charge before. If then, within this power lands would have been included, provided the will had been executed according to the statute (for at this day a man cannot give a power to his executors to sell his lands by a will not executed [* 179] according to the statute) I see no reason why this annuity is not comprised; the words being general enough to take it in; and nothing in the nature of the estate preventing its operating upon it. I incline therefore, that the executors have power to settle this annuity. Which leads to the next question: supposing this annuity is included, and it is not doubted but the residue vests in the executors eo nomine, in what manner that is to be settled, and how far the limitation is to take effect? I will consider this in two lights: first, as to the annuity, which is not a personal thing to vest in executors eo nomine; next as to the surplus, which is merely personal, and would vest in them by virtue of making them executors. As to the annuity, I think, it will fall under a different consideration from the rest of the personal estate. If estates of a different nature are comprised in this clause, Forth v. Chapman, 1 Will. 663, is an express authority for me, that the words shall receive a different construction according to the nature of these estates. Supposing therefore land was comprised in the direction of the trust, and the will so executed as to have affected lands, the Court could not possibly have directed any other settlement of the land but to the daughter in tail. Undoubtedly so, if it had stood on the first words to entail on her, &c., 3 Atk. 288. How is it explained by the subsequent clause, wherein the testator has declared his own intent, and made the construction himself? There it would have been a direction the settlement should be on her for life: but saying her lawful heirs forever will be construed by the preceding word issue, which will make an estate tail in her. So it would be as to land: the question then arises as to this particular instance of annuity; which is not real, but an inheritance 1 An annuity, when granted with words of inheritance, is descendible, but as to its security is personal only. 1 Brown, 325. VOL. III. 13 |