No. 5.

- Earl of Stafford v. Buckley, 2 Ves. Sen. 179, 180.

of a personal thing descendible to the heir. The proper kind of limitation that is capable of it is distinct from mere personal goods and chattels. The testator, having purchased it, was seised in fee of it at the time of making the will; and might direct it to be settled as far as by law allowed to be so; not by way of strict intail; because not within the statute de donis according to Lord COKE. No writ of entry could be brought of it: nor is it real estate and the very statute itself shows it in the beginning of it, nothing being included therein but lands and tenements and what partakes of their nature; and Co. Lit. 20 says, in all these cases grantee has a fee conditional as before the statute. The settlement then to be made of it, supposing the first question that it is included in this power in the will, is in this manner; to the daughter for life and the heirs of her body; which is in her a feesimple conditional. The executors then clearly could not carry it over in remainder to the nephews; for no remainder could be created of any estate not within the statute de donis; for before it was a possibility of reverter, out of which a remainder [* 180] could not be, upon this notion, that being but a *possibility it could not be grantable over; and if before the statute de donis a man had granted lands to another and the heirs of his body, and said in default of such issue over to B. and his heirs, that grant over had been void, and on the having issue the condition had been performed, and the grantee himself might have aliened so as to have barred the possibility of reverter. So here as this annuity is not within the statute de donis, if settled according to this will to her for life and the heirs of her body, if carried over in default of such issue to the nephews, that would have been void: as soon as issue had, the condition is performed; she might have aliened, and barred the possibility of reverter to the donor. Here issue has been had; and consequently an absolute fee must be, if a settlement is made according to this will. This I take to be the legal construction of this devise according to the different nature of these estates: and this (for I would not be misunderstood) will not affect those grants to which this has been compared, which have been frequent, of annuities by the crown of this kind with remainders over; for though a common person cannot grant a possibility, the crown can; as it may grant a chose in

1 As it may be granted in fee, it may, of course, as a qualified or conditional fee, but cannot be entailed. 1 Brown, 325.

No. 5. - Earl of Stafford v. Buckley, 2 Ves. Sen. 180, 181.

action; and according to Miles v. Williams, 1 Wil. 252, (which is truly reported) his grantee may sue for it in his own name; although a common person cannot grant a chose in action so as to enable grantee to bring an action in his own name. I do not take it, that before the statute de donis the possibility of reverter in the crown could be barred; which differs all these grants of the crown from cases of common persons. Therefore on the directions in this clause, if a settlement had been made, the executors must have settled it to the daughter, and the heirs of her body, so as to be a fee conditional with a power after issue had to alien, and to prevent possibility of reverter.

As the residue, which is merely personal, it is different, Prec. Chan. 421. 1 Wms. 290; for according to Forth v. Chapman, a different construction may be put on the same words in respect of estates capable of such a limitation in tail, and of those not capable of it: and I am of opinion, that the limitation contended for by the nephews is not so, nor was that the testator's intent, nor are the words capable of that construction, viz., that the daughter should have an usufructuary interest for life, &c. This must be considered of personal effects merely. The first words, taken with the explanation afterwards made, show "issue" meant in the same sense as "heirs," and has the same construction in wills, according to all the cases, and that of Miss Dormer; in which I held, that even where the first limitation was not for life, but to A. and if A. dies without issue, over to B., that was too remote, because it was a failure of issue in infinitum, 2 Atk. 313, 314, 376,1 and that I could not be warranted to say, these words must be tied up to a dying without such issue or without heirs at time of the death. Here are not any words to change "issue" from the common and legal construction; for I do not see even in the subsequent words, which are insisted on, anything to restrain the failure of issue to the time of her death: but let them fail at any time, the meaning was, it should go over. Here it is expressly given to the daughter for life; which words must be taken into construction of the first part, and explain them. In the former part he has explained his own meaning to be* to make a settlement of [*181] this money to the line of heirs of the body of his daughter

1 In 1 Wms. 198, where a legacy was Wms. 432, 565. 2 Vern. 686, 3 Wms left to one if he died without issue, it was 262. 2 Ves. Sen. 120.

held to mean issue living at his death; 1

in perpetuity; which intent, or of the limitation over afterward, the law will certainly not admit: nor was anything farther from his intent than to confine it to a dying without issue at the time of her death. Consequently it is too remote, and the nephews can take nothing. But though bad as to the nephews, it may be good as to the issue to vest the property in them; but reserve that question (which however does not concern the annuity) till after the report.

The only remaining question is as to the profits contended to be accumulated. I am of opinion, the true construction is, that it is subject to the aforesaid annuities, &c. one of which was in fee. Nor does testator import, that the £200 was all she should have; and there are several instances, where a particular sum is directed for maintenance, and afterward a settlement to be made notwithstanding; the £200 being only directed by her father to restrain what should be for her maintenance. The profits therefore over and above the maintenance, go and belong to the plaintiff.

The £1000 annuity and the surplus of the personal estate are subject to the power given to the executors; and the annuity, being capable of a limitation to the daughter and the heirs of her body, did by virtue of the will vest in her as a fee simple conditional at common law; and she, having had issue, is capable of aliening or settling the same; and the limitation over is void.

ENGLISH NOTES.

The principal case is cited in the argument in Turner v. Turner (1783), Ambl. 776, 1 Bro. C. C. 315, and followed in the judgment of Lord LOUGHBOROUGH in that case. He deduces the rule (p. 324 of Brown's reports): "An annuity when granted with words of inheritance is descendible, but as to its security is personal only; it may be granted in fee; of course it may as a qualified or conditional fee. But it cannot be entailed."

In Taylor v. Martindale (1841), 12 Sim. 158, a testator gave all his real and personal estate to his wife subject to (inter alia) a bequest to his brother of "£50 a year for ever." The VICE CHANCELLOR (Sir L. Shadwell) decided that the annuity on the death of the brother passed (as a perpetual annuity) to his personal representative. He observes: "There is no doubt that an annuity, though personal in its nature, may be granted to a man and his heirs." He then cites Lord COKE's description of an annuity and the passage of Lord LOUGHBOROUGH's judgment (above cited) in Turner v. Turner, "In this case

No. 6. — Phillips v. Gutteridge, 32 L. J. Ch. 1. — Rule.

however," he says "the testator has not used words of inheritance, and it is not imperative on me to construe the words 'for ever,' when used with reference to an annuity to signify heirs.' In my opinion the question is, which construction is most beneficial to the annuitant; and it seems to me to be most beneficial to him that the gift should be construed as a gift to him and his executors; as he might die without heirs, but might appoint executors. It is by no means a matter of necessity that a gift to A. B. 'for ever' must be construed as a gift to him and his heirs for ever.' 999

AMERICAN NOTES.

If an annuity is given to a man and the heirs of his body, it is in the nature of an estate tail, and to prevent a perpetuity the common law gives him an absolute interest in the annuity. Bradhurst v. Bradhurst, 1 Paige Chancery (New York), 331; 2 Lawy. Co.-Op. ed. 668.

SECTION IV. Whether charged on Corpus or not.

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WHERE an annuity is charged indefinitely on the income of a fund, and the income is insufficient to meet the annuity as it becomes due, the deficiency is charged upon the corpus.

Phillips v. Gutteridge.

32 L. J. Ch. 1-2 (s. c. 3 De G. J. & S. 332-338).

In this, which was a creditors' suit, the question [*1] whether an annuity was to be paid out of corpus or out of income alone, was decided by STUART, V. C., on further consideration, in favour of the annuitant. From this decision the plaintiffs appealed. James Gutteridge, the testator in the cause, by his will, dated in 1827, gave to William Probert certain leasehold land and ground-rents "upon trust to receive and take the rents, issues and profits thereof, and after payment of the ground-rent, &c. and the interest of any money secured or to be secured thereon, to pay the annual sum of £60 to my daughter Harriet for her life,

&c.; and in case of the death of my said daughter, leaving any child, then upon trust to continue the payment of the said annual sum of £60 for the benefit of such child; and upon further trust, in case of the death of my said daughter leaving any child or children, when and so soon as the youngest of such child or children shall attain the age of twenty-one years, to raise out of the land, ground-rents and premises, by sale or mortgage, the sum of £400, and divide the said sum, &c.; and upon further trust, during the lifetime of my said daughter, and until the youngest child (if any) shall attain the age of twenty-one years, to pay the residue of the said rents, issues and profits (after payment thereout of the said ground-rents, interest, &c. and the said annual sum of £60) unto my son, Thomas Gutteridge; and upon further trust, after the decease of my said daughter, in case she shall die without leaving any child, &c., or in case she shall leave any child or children, after the attainment by the youngest of such child or children of the age of twenty-one, and the raising and payment of the said sum of £400, and after the performance of all the beforementioned trusts, upon trust that the said William Probert shall assign the said land, ground-rents and premises, or such part thereof as shall remain undisposed of, unto my said son absolutely." The plaintiffs held a mortgage on the testator's [* 2] *leasehold property; which after the testator's will had

been transferred to them on their making a further advance. The property had been sold, and after paying off the original mortgage a sum of £700 remained; and the income being insufficient to keep down the annuity, the VICE CHANCELLOR declared that the annuitant was entitled to resort to the corpus.

Mr. Malins and Mr. W. Rudall, for the appellants, contended that the annuitant here could not be in a better position than a tenant for life. Foster v. Smith, 1 Ph. 629; 2 You. & Col. C. C. 213.

The LORD CHANCELLOR:

There the testator contemplated the property remaining in its entirety. Here the direction for payment of the residue contemplates the full satisfaction of the annuity.

Mr. Malins. The words "undisposed of" referred to the sum of £400 and the raising of that sum. The testator had as much an intention to benefit the children as his daughter.

The LORD CHANCELLOR: