specific and pecuniary legacies, and does not charge the real estate generally, or any part of it, with the payment of debts, and the personal estate not specifically bequeathed is insufficient for the payment of the specialty debts; so much of the debts as the personal estate not specifically bequeathed is insufficient to pay, must not be borne wholly by the specific legatees, but by them and the devisees rateably. For, although the personal estate is the primary fund for the payment of the debts, yet this is only a rule of positive law, and not of abstract justice; and the effect of pursuing a branch of law merely positive to its full extent and consequences, without exception or mitigation, must be a departure from natural equity. And it may be stated to be a rule of construction, that every will ought to be read, as in effect embodying a declaration by the testator, that the payment of his debts shall be, as far as possible, so arranged as not to disappoint any of the gifts made by it, unless the instrument discloses a different intention. Tombs v. Roch, 10 Jur. 534-V. C. B.

a

Priority of Annuities over Legacies.]- Although testator directs his trustees to stand possessed of the proceeds of the sale of his residuary real and personal estate, upon trust, in the first place, to pay a certain debt, and then upon trust to set apart and invest a sufficient sum to answer certain annuities; and, in the next place, after making such investments, upon trust to pay the several pecuniary legacies given by his will; the annuities have no priority over the legacies: for the directions may amount to no more than this: first, "I direct so and so; secondly, I direct so and so; next, I direct the payment of legacies." Thwaites v. Foreman, 10 Jur. 483-L. C.

See "Conversion.”

ADMISSION

of a Mortgagee's Title.]-Where a mortgage deed re-
recites that the mortgagor is seised in fee, and another
person indorses on it that he, "the purchaser of the
equity of redemption," has further charged the estate;
such a memorandum, though, perhaps, not strictly an
estoppel, for want of mutuality, is an admission, which
may be used as evidence, that he is in the same position
as the mortgagor; that he has no other title than one
derived from him. And as the mortgagor is estopped
from setting up against the mortgagee that the legal
title in any part of the premises is in any other person;
so, his assignee of the equity of redemption is a
vented from setting up this defence. Doe d. Gunsford
v. Stone, 10 Jur. 480-C. P.

AGREEMENT. -See "Compromise,'

ance.

ALIENATION.

pre

," "Specific Perform

twelve months after the testator's death; and he directs that certain other persons shall have legacies twelve months after his death, and annuities; the annuity to the daughter is deferred until the death of the mother, Roebuck v. Habershon, 10 Jur. 279-V. C. B.

Necessity for Inrolment.]-Where a person is seised of freehold property in fee simple in possession, or is entitled to freehold property under a conveyance to such uses as he shall appoint, and, until appointment, to the use of himself for life, remainder to a trustee for life, in trust for him, and to bar dower, remainder to his heirs and assigns; and he grants an annuity, and the property is of greater annual value than the annuity, beyond any other annuity or the interest of any other principal sum charged thereon; such annuity is within the exceptions in the stat. 53 Geo. 3, c. 141, and does not require inrolment.. Doe d. Butler v. Lord Kensington, 15 Law J. 153-Q. B.

Secured both by Rights of Entry and by a Term.]Where an annuity is secured not only by a right of entry and distress, and by a right of entry and perception of the profits given to the grantee, but also by a term limited by the same deed to a trustee for him to raise arrears by devise, sale, or mortgage; the rights of entry will not destroy the term, nor will the term defeat the right of entry: both kinds of remedies may co-exist. Doe d. Butler v. Lord Kensington, 15 Law J. 153– Q. B.

Whether charged on Rents payable during the Annuitant's Life only, or on the Corpus of the Estate.]-Where a testator gives freehold and leasehold estates to trustees, upon trust to receive the rents when and as the same shall become due and payable, and thereout to pay his wife an annuity during her life, and, after her decease, upon trust to convey the estates to the use of other persons; in such case, the estates not being directed to be conveyed subject to the annuity, the annuity is not charged on the rents generally, whether payable in the vendor's lifetime or after her decease; and, therefore, if the rents received during the widow's lifetime are insufficient to pay the annuity, it must abate. Foster v. Smith, 15 Law J. 183-L. Č.

duction and cohabitation are not a good consideration Consideration-Seduction and Cohabitation.]-Past seto support a grant of an annuity. Beaumont v. Reeve, 15 Law J. 141-Q. B.

Interest to be paid on a Debt not an Annuity.]-Where a bond is given for a previously existing debt, and the condition is, that, if the obligor shall pay interest at 51. per cent. on the debt during the joint lives of the cre ditor and his wife, the bond shall be void; but, in case of failure in paying the interest within the times specified, the debt shall become recoverable by the obligee; this is not a grant of an annuity, of which a memorial Attempt to restrain Alienation.-Alienation by Insol- is required to be inrolled within the stat. 53 Geo. 3, c. vency.]-Where a testator directs an annuity to be paid 141; for, even if an annuity granted for a bygone conto a person until he shall attempt to anticipate or in-sideration is within the statute, in the ordinary case of cumber the same, or until any other person may claim the same; and, from and after such attempt or claim, the testator wills that the same be applied for his personal support, clothing, or maintenance, and for no other purpose whatever; the annuity will pass to his assignee, if he takes the benefit of the Insolvent Debtors

Act.

Younghusband v. Gisborne, 10 Jur. 419-L. C. ALTERNATIVE LIMITATION-See "Remoteness."

ANNUITY.

Postponed Annuity.—Words annexed to a prior gift extending to a subsequent one.]—Where a testator gives all his property to a person, he paying to another a certain annuity for life, and, at her death, to pay one of her sons a certain sum, and another son another sum, and her daughter an annuity for life, and a certain sum

an annuity the money advanced is irrecoverably gone; verable if the interest is not paid. Besides, this case is whereas, in the above case, the debt is still to be recoone of benefit to the party paying the interest; for, by doing so, he is to be excused payment of the principal; whereas the mischief intended to be prevented by the statute, was the making of improvident bargains by needy persons. Marriage v. Marriage, 1 M. & Gr. 761. See" Alienation," "Injunction."

APPORTIONMENT.

Dividends payable to a Person at a given Age not ap portioned.]-Where executors are directed, after a child attains twenty-one, to apply dividends for his support until he attains the age of twenty-five, and he attains twenty-one between the periods of payment of the halfyearly dividends, he is entitled to the whole half-yearly

dividend received after the attainment of his majority, Where a testator devises his real and personal estate, and not to an apportioned part only. Campbell v. Camp-upon trust to lay out the personal estate in the purbell, 7 Beav. 482. chase of real estate, and to pay the rents, interest, and dividends to his wife for life, and directs, that, in case

ASSIGNMENT-See "Statute of Limitations," " Vendor and the sister of his wife shall reside with, or dwell in the

Purchaser."

ATTORNEY.

Mortgagee's Attorney's Claim to a Lien on Deeds against the Mortgagor.]-After a re-conveyance by a mortgagee to the mortgagor, the attorney of the mortgagee cannot retain the deeds against the mortgagor as a security for the expenses of the transaction due from the mortgagee to the attorney. Wakefield v. Newbon, 6 Adol. & Ell. 276.

AWARD

house or place of residence of his wife, or become part of her family, then, for each and every day in which that shall happen, his trustees shall retain, out of the rents, interest, and dividends payable to his wife, a certain sum, and pay the same to a charitable institution; the condition is not illegal, but, being a condition subsequent to divest a vested interest, it ought to be construed strictly; and as the direction to retain, so far as it is intended to operate for the benefit of the charity, is void under the Mortmain Act, it fails altogether. Ridgway v. Woodhouse, 7 Beav. 437.

Whether a Condition annexed to a prior gift extends set aside on the ground of ex parte representations. to a subsequent one.]—Where a testator, in the event of Principles connected with the Administration of Justice.] a person for whose life he was entitled to an annuity -An award will be set aside, where the judgment of dying before another person, gives a certain direction the arbitrator has been influenced by representations to his executors, and then adds, in a distinct sentence, made by one of the parties in the absence of the other, that in the opposite event of the death of such other respecting a question affecting the interest of such other person in the lifetime of the former, for whose life the party, even though the interview took place at the retestator was entitled to such annuity, he gives such anquest of the arbitrator, and in the presence of an ac- nuity to a certain individual, he paying the premiums countant employed by both parties, and even though on a policy of insurance effected on the life of the perthe absent party, seeking to set aside the award on that son for whose life the testator was entitled to such anground, has been guilty of a similar impropriety. For it nuity; and on the death of such last-mentioned peris a plain principle of justice, that a person adjudicating son (the assured) the testator gives the sum insured a matter in litigation, in whatever form it may be li- to the same individual to whom the testator gives the tigated,-whether in the regularly constituted courts annuity, that individual will not be entitled to the or in arbitrations,-whether before lawyers or mer-policy-money in the first-mentioned event; for the gift chants, must never permit one side to use means of influencing his conduct and decisions, which means are not known to the other side; and one party will not be precluded, by a violation of this rule on his own part, from complaining of a similar violation of the rule by the other side; because this is not a matter of mere private consideration between two adverse parties, but a matter concerning the due administration of justice, in which all persons who may ever chance to be litigant, in courts of justice or before arbitrators, have the strongest interest in maintaining that the principles of justice shall be carefully adhered to in every case. Harvey v. Shelton, 7 Beav. 4, 55.

CHARITY-See

66

66
Condition," Mortmain,"
and Purchaser," Case 5.

"Vendor

CHARTER-PARTY-
-See "Construction," Case 1.
COMPANY-See " Railway, » « Trusts."

of the policy-money was not to take effect on the death of the assured, whensoever it might happen; but the contingency of the event secondly mentioned extends to the gift of the policy-money as well as to the gift of the annuity. Leckie v. Hogben, 7 Beav. 502.

See" Covenant."

CONSTRUCTION.

tions in a Charter-party.]-Where a charter-party Scope of a clause empowering the making of Altera

enables the master of the vessel and the agents of the freighter to make such alterations in the charter-party as they may mutually think proper, without prejudice to that agreement, the meaning of this clause is not merely that they may make some small addition to, or deviation from, the voyage specified, such as that the ship may call at intermediate ports; but they are thereby authorised even to enter into an agreement with other persons for an intermediate voyage from the foreign port and back, prior to the homeward voyage from that port contemplated by the charter-party, although to of a Prosecution for cheating at Cards.] - Promis- the prejudice of the freighter, in consequence of the sory notes, delivered by one person to another, to in- delay occasioned thereby. And the freighter is not enduce the latter to forego prosecuting him for cheat-titled to have the freight earned by the owners on the ing at cards, will be decreed to be delivered up, because it would be extremely dangerous to allow a party to be a judge in his own cause, and to determine in his own favor what amount of penalty ought to be paid for a breach of the law committed by another person, notwithstanding he may have suffered by it. Osbaldiston v. Simpson, 13 Sim. 513.

COMPROMISE

Invalid Consideration.-Compromise of a Prosecution.]-An agreement, founded on the consideration of stifling a prosecution for an offence, is void, if the offence is of a public nature; as, where it is not only a case of an assault, but also of riot and obstruction of a public officer in the execution of his duty. Keir v. Leeman, 6 Adol. & Ell. 308.

intermediate voyage brought into the account. Wiggins v. Johnston, 14 Mee. & W. 609.

Whether a Residue passes, and whether in Trust.]— Where a will contains such a passage as this: "My house I give to my brother, as residuary legatee of my remaining property, for the benefit of his children," he will take the residue as well as the house, in trust for his children. Inderwick v. Inderwick, 13 Sim. 652.

Of the Words" Nearest of Kin."]-Where a testator, after limiting one-half of his property in trust for his daughter and her issue, directs, that, in the event of his daughter pre-deceasing his wife, without marrying or leaving issue, then, during the life of his wife, his trustees shall accumulate the interest of his residue, so far as not directed to be paid to her; and that, on the decease of his wife, the whole residue be divided into Condition subsequent divesting in favor of a Charity two equal parts, one of which shall be divided between -Condition against a Wife's Sister residing with her.]—or amongst his nearest of kin, and the other half among

CONDITION.

the nearest of kin of his wife, who shall have power to his, her, or their shares shall become payable, leaving apportion the division of the said half as she shall issue, then the share or shares of him, her, or them so think proper, by any writing to be executed by her in dying shall be paid to his, her, or their respective her lifetime; the testator is held to mean the nearest of issue; but in case any of the said children shall die bekin at his death, and not at the death of the wife; fore his, her, or their share or shares shall become payand, consequently, if his daughter is his next of kin able, leaving no issue, then the share or shares of him, at the time of his death, and pre-deceases his wife, her, or them so dying shall be paid to the survivors her personal representative will be entitled to the moiety and survivor of them, at such time or times as his, her, of the property: for the words "nearest of kin of the or their original share or shares shall become payable testator," in their ordinary legal sense, unexplained and as aforesaid; but in case the tenant for life shall have uncontrolled by any other expressions, mean the no child or children, or, having such, they shall all die nearest of kin at the time of his death. And in the under age and without issue, then over; the words above case, in which the will is very inaccurately ex-"his, her, or their share or shares shall become paypressed, there is not enough that can safely be relied on able" are equivalent to the words "he, she, or they as shewing that the testator does not mean his nearest shall attain twenty-one;" and, consequently, the reof kin at the time of his death. Urquhart v. Urqu-presentatives of a child of the tenant for life, who dies hart, 13 Sim. 613. in his father's lifetime without issue, after attaining twenty-one, will take a share. Jones v. Jones, 13 Sim. 561.

Whether "Instalments" payable for a term constitute "Rent."]-Where a person, seised in fee of land and mines under it, executes a deed, purporting thereby to Limitation of Personal Estate to the Testator's own well and dispose of, grant and convey, the mines for a right Heirs for ever.]—Where a testator gives his freelong term of years, subject to the payment of a certain hold, copyhold, and leasehold estates, and "estates in sum of money to him, his executors, administrators, and the funds," to a person and his first and other sons in assigns, by large instalments, by which the whole sum tail, and, in default of such issue, to his own right heirs would be paid in a few years; with powers of entry for ever; and empowers his trustees, with the conand distress reserved to him, his executors, admini-sent of the persons in possession and entitled to the strators, and assigns, for securing payment of such in- profits thereof, to invest the residue and surplus of his stalments; and with a proviso, that, in case of any of personal estate in the purchase of land, to be settled to the instalments being in arrear for a certain time, the the uses declared of the lands and premises previously term shall cease, and the owner of the land, his heirs, devised, the heir-at-law, and not the next of kin of executors, administrators, and assigns, shall not be ac- the testator, is entitled to his personal estate; for it is countable or compelled to refund or repay any of the obvious that he intends the different kinds of property instalments paid in part of, or towards the purchase to go to the same person or persons, especially as he money for the minerals or mines; and the deed con- directs that the real property to be purchased shall be tains a covenant enabling the person in whose favor settled to the uses declared concerning his real estate the above term is created to enter upon the lands at a and premises, which shews that the same set of uses future time, for a term of years, under a certain rent, were intended to apply to all the different kinds of prowhich, with a power of entry and distress for the same, perty, freehold, copyhold, leasehold, and funded. De is reserved to the owner of the land, his heirs and as Beauvoir v. De Beauvoir, 10 Jur. 466-V.C. E. signs; the instalments payable for the mines are not rent, and therefore not incident to the reversion, and do not pass under the words, "the reversion, rents, issues, and profits," but are personal debts. Lord Hatherton v. Bradburne, 13 Sim. 599.

Bequest of "all but Cash or Monies so called" to a Person" and his Family."]-A bequest of "all but cash, or monies so called," to a person "and his family," who are spoken of as living at the date of the will, is a bequest to him and his children then living, as joint tenants, and includes promissory notes, annuities, and foreign bonds. Beales v. Crisford, 13 Sim. 592.

Of an Inclosure Act, as to a Right of Way to carry Coals, &c., from Mines.]-See Midgley v. Richardson, 14 Mee. & W. 595.

Whether after-born Children are intended to take under a Separation-deed.]-Where, by a deed of separation, reciting that the husband and wife intended to live separate during the remainder of their lives, and containing a covenant by the husband not to visit his wife, a sum of money is limited, in trust, after their decease, for all and every the children of the husband on the body of the wife lawfully begotten, who, being Bons, shall live to attain twenty-one, or, being daughters, shall attain that age or be married; and there are children living at the date of the deed; a child born after a subsequent reconciliation is not entitled to a share; for it is obvious, from the whole scope of the deed, that the existence of after-born children was not contemplated. Hulme v. Chitty, 10 Jur. 323-M. R.

Meaning of the Word "payable," in a Limitation over.]-Where a testator bequeaths a sum of money in trust for a person for life, and, after his decease, in trust to pay it to his children when and as they shall attain twenty-one; and in case any of them shall die before

Limitation to the Executors, Administrators, and Assigns.]-Under a limitation of a sum of money in the marriage settlement "to the executors, administrators, and assigns" of the wife's mother, the executors of the mother are entitled to take the money and interest as part of her residuary personal estate. Morris v. Howes, 4 Hare, 599.

See "Administration," "Annuity,” “Heir,” “Le gacies."

CONTINGENT INTEREST depending on surviving the prior taker.]-Where a testator gives all his real and personal estate to a person for life, and, after such person's decease, directs his executors to sell and convert the same into money, and to divide and pay the produce to and amongst a class of children; and, in case of the death of any of them in the lifetime of the tenant for life, to pay unto the issue of such child or children, his, her, or their parent's share equally between them; the class to take consists of such children as shall be living at the death of the tenant for life, and the issue of any who shall die in the lifetime of the tenant for life leaving issue, such issue being alive at the death of the tenant for life, and

the children who die in the lifetime of the tenant for life, and their issue who die in the lifetime of the tenant for life, are excluded. Beck v. Barn, 7 Beav, 492. See "Vested," "Heir."

CONTRIBUTION-See “Administration.”

CONVERSION.

Necessity for converting a Residue.]—Where a testator gives the residue of his property to his wife, after payment of debts and legacies, for her use and benefit