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father's life: Held; on the death of the father, that the trañsfer was an advancement to the son (Taylor v. Taylor, 1 Atk. 386; Lamplugh v. Lamplugh, 1 P: W. 111): that neither à codicil executed two years after the transfer, nor any other matter er post facto could be allowed to alter what had been done : that the language of the codicil was too vague to raise a case of election between the stock transferred and the benefits
given by the will. --Crabb v. Crabb, M. & K. 511. 3. A father transferred a sum of consols into the names of his illegitimate
daughter and her husband and their two children, declaring the investment to be for the benefit of all his daughter's children who should attain 21. He afterwards transferred a sum of long annuities into his own name jointly with the names of his daughter and her two eldest children, declaring that he did not intend to part with the control over this, and he in part afterwards disposed of it by his will: Held, on the death of the daughter and her husband, and of the two eldest children under 21, that two surviving children, who had attained 21, were entitled to the consols, and that the long annuities passed by the will.-Kilpin v. Kilpin, M. & K. 520. 4. (Implied.) A testator lending a sum of money on mortgage, had the
security made in the name of his brother, for whose benefit he declared that the principal should be. He however had no communication with his brother on the subject, and always received the interest himself, In a suit against the brother, held, that a resulting trust may be rebutted as to part of the land comprised in á deed, and prevail as to the remainder. (Lloyd v. Spillett, 2 Atk. 148; Lane v. Dighton, Amb. 409): that in this case the trust being of personal estate, was not within the statute of frauds, or the doctrine of resulting trusts under that statute; but that the property belonged to the brother by force of the testator's declaration.
Benbow v. Townsend, M. & K. 506.
was not able to make a good title, his bill was dismissed, and he was or-
227. WILL. 1. (Remoteness.) A testator bequeathed his residuary éstate to trustees,
in trust for the support, by sale or otherwise, of his wife for life, and after her decease, to preserve the then remaining part of his estate, or the produce thereof, for the grandchildren of his brother, to be by them received in equal proportions when they should severally attain 26, and when the youngest should have attained that age, and have received his final dividend or share of the estate, the trust should cease. The testator left his widow surviving, who died shortly afterwards. At her death several grandchildren of the brother were in existence, and several were born subsequently: Held, that the will was not void for remote
ness; and that those only of the grandchildren were entitled to take who
were in esse at the death of the widow.-Kevern v. Williams, Sim. 171. 2. (Construction.) A testator gave all his property to trustees, in trust to
invest it in securities at interest for the use of his nephew, to be paid at such time and in such manner as the trustees should think fit; and when the nephew should attain 21, that the trustees should pay him the amount of the interest or proceeds of the money come to their hands, as they might think most for his advantage, in weekly or quarterly payments, for his life: Held, that there being in the first part of the will an absolute bequest, the Court could not cut that down on account of sub
sequent doubtful expressions. Billing v. Billing, Sim. 232. 3. (Same.) Testator gave one-third of his residue to his niece, which he
desired might be settled by his executors on her, for her separate use for her life, but to devolve to her issue at her death, and failing issue, then to revert to his nephew. The Court directed the third to be settled in trust for the niece, for her separate use for life, and after her death in trust for her issue then living, and if there should be no such issue, then
in trust for the nephew.-Stonor v. Curwin, Sim. 264. 4. (Samé.) A., on his marriage, grants a rent-charge to his wife out of his
estates for her jointure, which he secures by a term limited to trustees. By his will he gives his mansion-house and park, being part of the settled estates, to his wife for life, and the rest of his estates to B.; and directs that the repairs, painting, &c. of his mansion-house shall be paid for by sale of timber on the premises devised to B., and then he confirms the settlement: Held, that the jointure was wholly raisable out of these estates. (Knight v. Calthorpe, 1 Vern. 347.) --- Grigby v. Powell,
Sim. 590. 5. (Same.) A bequest of a year's wages to each of the testator's servants,
over and above what might be due to them at the time of his decease, was held to apply only to family servants usually hired by the year.-(Chilcott v. Bromley, 12 Ves. 114; Exp. Craufoot, 1 Mont. 270.)
Booth v. Dean, M. & K. 560. 6. (Trust.) A testator gave his residuary personal estate to two trustees,
their executors, administrators, and assigns, upon trust to apply the same as he should appoint; and in default of appointment, he left it to his said trustees to settle such part thereof, either to charitable purposes at their discretion or otherwise, for the separate benefit of his sister and her children. The surviving trustee having died, leaving a portion of the fund unapplied: Held, that there having been no disposition in favour of charity as to the unappointed part, the Court would not interferé; and that the trustees having had a personal discretion as to the application of the fund, which they had died without exercising, that part was’undisposed of by the testator, and belonged to the next of kin.
Down v. Worrall, M. & K, 561. 7. (Construction.) A testator having freehold and leasehold property in the
same place, by a devise of his lands, tenements, and hereditaments. in that place, or, of his messuages, lands, tenements, and hereditaments in that place, to uses applicable only to freehold property, passes only the freeholds. (Rose v. Bartlett, Cro Car. 292; Thompson v. Lanby, 2 B. & P. 303.) But if a different intention on the part of the testator can be collected, either from words in the will, or from the circumstance of the leasehold property being blended in enjoyment with the freehold, that leasehold will pass, notwithstanding the limitations be to uses strictly applicable to freehold property only.—Hobson v. Blackburn, M. & K.
571. 8. (Same.) When a grant is general of ten acres of land adjoining or sur
rounding a house, part of a larger quantity, the choice of such ten acres adjoining or surrounding is in the grantor, and a devise is to be con
sidered as a grant.-S.C. 9. (Legacy.) In deciding whether a legacy is accumulative or substitu
tional, the Court can only proceed upon what appears to have been the testator's intention as collected from a close examination of his language. Guy v. Sharpe, M. & K. 589. 10. (Construction.) A testator directed his property to be settled on his
daughter in such manner, that, in case of his death, it should devolve on her children if she should have any; and if she should not have any, then that she should bequeath it to any person she might think fit : Held, that the word devolve meant to pass from a person dying to a person living, and that the representative of a child, who died before the mother, took no interest on the death of the latter.—Parr v. Parr, M. &
K. 647. 11. (Conversion-- Lapse.) In general, where a testator mixes the produce
of his real estate to be sold after his death with his personal estate as a common fund, out of which he gives pecuniary or residuary legacies, the heir, in case of lapse or failure, shall have the benefit thereof so far as the legacy would have been payable out of the real estate (Cruise v. Bailey, 3 P. N. 20; Ackroyd v. Smithson, 1 Bro. C. C. 503); but where an intention on the part of the testator, that the produce of the real estate shall for all purposes have the same quality as if it had been part of his personal estate at the time of his death, may be collected from the tenor of the will, then the heir will not be entitled to any proportion of a lapsed or failing legacy. (Mallabar v. Mallabar, Ca. temp. Talb. 78; Dusom
v. Motteux, 1 Sim. & Stu. 292.)— Phillips v. Phillips, M. & K. 649. 12. (Conversion-Partners.) Real estate purchased with partnership
capital for the purposes of partnership trade, is personal estate to every intent, and retains that character as between the real and personal representatives of a deceased partner. (Townsend v. Devaynes, 1 Mont.
Law of Partn. App. 97 ; 1 Roper's H. & W. 346, edit. Jac.)—S. C. 13. (Copyholds.) Where a testator at the making of his will has legal seisin
of a copyhold, his devisee has an inchoate legal title, to be perfected by admittance; and he not having been admitted at the date of his will, nothing passes by his will, though he be subsequently admitted. But
where a testator has never been admitted, and has therefore no legal, but an equitable title, that equitable title vests in his devisee, and will pass
by his will, though he never was admitted.-S. C. 14. (Conversion.- Lapse.) A testator directed a residuary fund, com
posed of the produce of his real and personal estate, to be divided among all and every his children and child, if sons, at 21, and if daughters, at 21 or marriage; and in case there should be no child, to be paid to such person or persons as he should thereafter, by any codicilor writing, direct or appoint, his or their executors or administrators. The testator died without having made any appointment, leaving an only child, a daughter, born after the date of his will, and who afterwards died under 21 intestate, and without having been married : Held, that so much of the residuary fund as was composed of real estate descended to the daughter as heir at law (Ackroyd v. Smithson, 1 Bro. C. C. 503), but in the character of personal estate (Smith v. Claxton, 4 Mad. 484); and so much as was composed of personal property was to be considered as personal property of the testator undisposed of by his will, and divisible under the statute of distributions.-Jessop v. Walson,
M. & K. 665. 15. (Distribution.- Half-blood.) By the statute 1 Jac. 2, c. 17, s. 7, bro
thers and sisters of the half-blood of an intestate share with the mother after the death of the father of the intestate, in the personal property of the intestate dying without wife or children. (Burnet v. Mann, 1 Ves.
sen. 156.)-S. C. 16. (Republication.) Testator having estates in Jamaica and England, by his will, duly executed, directed his English estates to he sold, and £10,000 to be paid out of the produce to the plaintiff. He afterwards sold his English estates, and by an unattested codicil recited that he had so done, and directed that, notwithstanding, the £10,000 should be paid to the plaintiff, and charged all his estates with the payment thereof. He then made another codicil, which was duly attested, and in which he referred to his will, and ratified all the provisions and bequests, which he had thereby made in the plaintiff's favour: Held, that the first codicil was part of the will, and the second codicil, by referring to the will, ratified aud confirmed every thing that was part of it; and, therefore, that the Jamaica estates were liable to the payment of the £10,000.
--Gordon v. Lord Reay, Sim. 274. And see SOLICITOR AND CLIENT, 3.
[Containing 3 Deacon & Chitty, Part 2.]
ACT OF BANKRUPTCY.
the payment of all his debts. Two years afterwards one of the creditors, whose debt was left unprovided for, issues a fiat against him, which the bankrupt, by his agent in this country, after the forty-second day, petitions to supersede: Held, (dissent. Sir J, Cross,) that the fiat could not be superseded without the previous surrender of the bankrupt : Held also, that the continued absence of the bankrupt, under these circumstances, amounted
to an act of bankruptcy.-Exp. Kirkman, 450. APPEAL. The Court will not order a petitioner residing out of its jurisdiction to give
security for, or pay into Court, a sum of money which he had been declared entitled to by a previous order, merely because the respondent intends to appeal against the order, if there is no probability of a different
decision on the appeal.- Exp. Davidson, 447. ASSIGNEES. 1. (Reserved Bidding.) A reserved bidding was allowed to assignees, on the
sale of an estate which had been mortgaged by the bankrupt, the assignees undertaking to pay the mortgagee his principal, interest and costs.-Exp.
Ellis, 297. 2. (Discretion.) The Court will not interfere, on the application of the
assignees, to sanction an arrangement made by them for the satisfaction of a claim of the bankrupt's wife. The assignees must use their own discre
tion.-Exp. James, 290. 3. (Purchase by.) An assignee, who was also a mortgagee of the bankrupt's
freehold property, having purchased it for himself when it was put up for sale, the estate was ordered to be re-sold, subject to any claims of the
assignee, by virtue of his mortgage. Exp. Turville, 346. 4. (Evidence.) The examination of the assignee before the commissioner, as · to the sale of the property, was permitted to be read as evidence of the assignees' misconduct; the petition praying to discharge him for misconduct, although it did not pray a re-sale...S.C.