cease 2001. thereof to her and T. both die and after her de-paid within three years after my deeeafe, to put the fame out to intereft, and to pay the intereft and profits thereof to my niece Yon T. and the Whalley for her feparate ufe; and after her decease in truft to other 100l. to pay the intereft thereof, &c. I give 2007. thereof to her fon T. her fon C. W. Whalley, and the other 100l. to her fon C. Whalley. The within the three mother Mrs. Whalley and the fon Thomas both died within the years. Sir Joseph three years, and yet the Mafter of the Rolls decreed that the Jekyll decreed whole money fhould be paid. It was charged on both funds, fhould be paid, real estate as well as personal, but it was admitted that the perthough charged fonal eftate was fufficient. the whole money on both funds. and interest in the mean time, is a vefted one; otherwife as to legacies out of real estate, for if Lord Chancellor: The infant dying before the time of payment to the truftee, I am of opinion makes this legacy not raifable for the benefit of the plaintiff her reprefentative. Legacy out of If a legacy is given out of a perfonal eftate payable at a cerperfonal estate payable, or given tain time, or if given at a certain time, and interest in the at a certain time, mean time, it is a vefted legacy; but the rule of this court as to legacies out of real eftates is otherwise, for if given at a certain time, or payable at a certain time, yet if the legatee dies before the time is come, it finks into the inheritance; so when a legacy is given out of a mixed fund of real and personal estate legatee dies be- at a certain time, or to be paid at a certain time, the construction fore the time is is the fame as if given out of a real estate only. There is but into the inherit. a flight difference between the cafes of legacies given at a day, ance. The fame or payable at a day, but the diftinction is adhered to only to give a confentaneous jurifdiction with the ecclefiaftical courts ; where a legacy is given out of a nor is there any cafe, that I know of, to warrant a distinction between legacies given out of a mixed fund of real and perreal and perfonal fonal eftate, and out of real estate only. come, it finks construction mixed fund of eftate at a certain time, or to be paid at a certain time. If the infant had truflee dead be If the infant had furvived the year and half (for the death of furvived the year the trustee makes no diftinction), it would have been extremely and half, though clear fhe would have been intitled to the legacy; or if she had fore, the would died after the time aforefaid, and before eighteen or marriage, have been intitled her reprefentatives would have been intitled: But if this had fo likewife if the been merely perfonal, as the died within the year and half, her had died after reprefentative could not have been intitled, for the whole faid, and before gift is in the direction of the payment, which makes that the 18, or marriage, fubstance. to the legacy; the time afore her reprefenta tive would have been intitled. Where a legacy In the prefent cafe it is not a legacy merely out of a percharged on real fonal eftate, but out of both funds, and the real charged in the estate is clearly intended as a first place by the teftator's exprefs directions, viz. her eftate in portion, the Great Lincoln's-inn Fields. And this conftruction is more agreecourt goes as far able to the intention of the teftatrix, as the fum was intended der the raifing it clearly as a portion for Mary Lewis: And the court always as it can to hin out of land for the benefit of representatives, goes goes as far as it poffibly can to hinder the raifing portions out of land for the benefit of reprefentatives, and the end of this bill is plainly for this purpose. His Lordship difmiffed the bill, but without cofts. Vide title Conditions and Limitations. Vide title Devifes, under the divifion, Where a devife shall or Legacy vetted. Vide title Heir and Ancestor. CA P. LXVIII. Maintenance for Children. Eafter Term, 1737. Edward Jackson, an infant, TH HE fum of 3500l. had been conveyed to trustees for Case 245. the benefit of Mary the plaintiff's mother, during her Where there is a coverture, and for a provifion for children; and if no iffue, falling of flock, then the husband of Mary, if his neceffities required it, with without the nethe approbation of the trustees, might fell the 3500%. glect of the truftee, he is not liable to make good the deficiency, but is answerable only as far as the value, especially where it was fpecifick stock, Anne Jackson, the mother of Mary, and her uncle, were the trustees under the marriage-fettlement, and the 3500l. was paid into their hands. Mary Jackson is, by the truft, allowed to make a will during the coverture, and to difpofe of this money as if the was a feme fole. Mary Jackfon lived but four years; before her death fhe made a will, and devifed the 3500l. in truft for the benefit of her husband as to the intereft thereof, during his life; and for the infant as to the principal; and if the infant dies, the whole for the husband. Anne Jackson, the mother of Mary, paid the intereft for the 3500/. for a confiderable time. Infifted by her counfel, that, as the ftocks are fallen, fhe is only answerable as far as the value of the ftock, especially as it was fpecifick ftock, and the fortune of her daughter lay in this fpecifick stock, and therefore ought not to be confidered as money, especially as ftocks are of such a fluctuating nature, and liable to fuch frequent change, and that the money paid to the daughter was only the dividends of the ftock. LI VOL. I. But cease 2001. thereof to her and T. both die and after her de-paid within three years after my deccaje, to the whole money on both funds. Legacy out of perfonal estate Lord Chancellor: The inf ment to the trustee, I am raifable for the benefit of If a legacy is given ot payable, or given tain time, or if given at a certain time, mean time, it is a veft to legacies out of re.. certain time, or pay.. dies before the time when a legacy is give. at a certain time, or is the fame as if into the inherit. a flight differenc and interest in the mean time, is a vested one; otherwife as to legacies out of real estate, for if legatee dies before the time is come, it finks ance. The fame or payable at a construction where a legacy give a confenta is given out of a nor is there any between lega mixed fund of real and perfonal fonal estate, eftate at a certain time, or to be paid at a certain time. ceipts from the nerally, and noThe settlement too 2. principal money gof ftock without nder the laft clause demnity of guardians f there be a diminuefault of the trustees, cks fell, the trustees paid zuch more than the proDerefore to a demonstration using the golden dream, people a imaginary wealth as equally After the falling of the ftock, ued paying the same interest. wer either way, for it does not f intereft, and yet is more than ock; and to compel trustees to wing to their wilful default, is ... Je made in a court of equity. rent to the marriage, it was agreed .. tock at seven hundred and fifty, muingly; yet this court will never ce under so hard and unreasonable vil recites the deed of fettlement, and eaintiff infift the devife to the huf and not pursuant to the power, and new, from the whole tenor of the mare power of difpofing of any part of elevest of her husband, to the prejudice of and rely principally upon the follow es that no part of the principal mothe ufe of the faid Edward Jackfon, sent of the truftees under hand and feal, msn may be kept intire for the advan amat Mrs. Mary Jackson had no power to the prejudice of the infant, but in te; therefore the difpofition fhe has the power. that the defendant Anne Jackson should ware of the 3500/. ftock from the The he plaintiff appearing to be fufficiently com- Where a father 5, under the divifion, At what Time they shall be Vide title Cuflom of London. regard to an in. nance. С А Р. LXIX. Darriare. (A) Where it is clandeftine. December the 20th, 1737. Hill v. Turner. See ftat. 26 G.z. 2 Bürr. 898, 11 had been brought against an executor for an account Cafe 246. of a teftator's eftate, and alfo prayed that there might guardian affigned, and maintenance for an infant; the er was appointed guardian, and 100l. per ann. allowed is maintenance. he infant being made drunk at an alehouse near the Fleet fon, was drawn in to marry a woman in mean circumnces and of bad character; and upon an application to this ourt, the wife was committed to the Fleet. The infant's nother, as he had no eftate fufficient to maintain a wife till of age, has put him out an apprentice to a merchant in Hole land, upon which the wife immediately inftituted a fuit in the ecclefiaftical court, for alimony and for reftitution of conjugal rights; a fentence there that the husband should cohabit, and if not, that he should pay alimony; and an order made likewife by that court, upon the guardian, to pay the fum of 10l. to the wife towards alimony, and afterwards a monition to the guardian to pay a further fum as an increase of alimony, and a fentence of excommunication pronounced against her for not obeying the monition, and alfo against the infant, the husband, for not receiving his wife. Mary Stewart, the mother of the plaintiff, petitioned the court that a prohibition might be granted to stay the proceed ings upon the decree, and excommunication against her in the r: I have no doubt at all as to the propriety his court, but the misfortune is, the want of w to reftrain fuch clandeftine marriages, which Productive of great mifchiefs, but put courts of L12 judi But it appeared in the caufe, that the receipts from the daughter to the mother were for intereft generally, and nothing was mentioned in them of stock. The fettlement too recites the daughter to be poffeffed of 3500% principal money in her own right. Lord Chancellor: This is a mere falling of stock without the trustees neglect, and therefore comes under the laft clause of the statute of Geo. 1. made for the indemnity of guardians and trustees, which provides, "That if there be a diminu"tion of the principal, without the default of the trustees, "they fhall not be liable." It has been faid, that after the stocks fell, the trustees paid intereft for 3500/, amounting to much more than the produce from the dividends, and therefore to a demonftration it appears to be a trust for money. But it is well known, that, during the golden dream, people were fo infatuated as to look upon imaginary wealth as equally valuable with fo much money. It has been faid, that long after the falling of the stock, the defendant Anne Jackfon continued paying the fame interest. But ftill it does not answer either way, for it does not amount to the common rate of interest, and yet is more than the dividends of the fallen ftock; and to compel trustees to make up a deficiency, not owing to their wilful default, is the harshest demand that can be made in a court of equity. Notwithstanding, antecedent to the marriage, it was agreed by the defendant to take the stock at feven hundred and fifty, and a transfer made accordingly; yet this court will never oblige a trustee to acquiefce under fo hard and unreasonable a contract. Mary Jackfon in her will recites the deed of fettlement, and her power of devising. The counsel for the plaintiff infift the devife to the hufband is illegally made, and not pursuant to the power, and have endeavoured to fhew, from the whole tenor of the marriage-articles, fhe had no power of difpofing of any part of the money for the benefit of her husband, to the prejudice of the infant the plaintiff, and rely principally upon the following provifo : Provided nevertheless that no part of the principal mo"ney fhall be applied to the ufe of the faid Edward Jackson, without the confent of the trustees under hand and feal, "to the end that this fum may be kept intire for the advantage of the infant." I am of opinion that Mrs. Mary Jackfon had no power to difpofe of the principal, to the prejudice of the infant, but in one particular circumftance; therefore the difpofition fhe has made is not pursuant to the power. His Lordship directed, that the defendant Anne Jackson should account for the whole intereft of the 3500/. ftock from the death of Mary Jackson. |