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1842.

LANGTON

v.

HORTON.

be considered as part of, or as an incident to the ship itself.

I am therefore of opinion, that it does not pass by an assignment of the ship and its appurtenances without any specification or allusion to the cargo. And that the Plaintiffs are entitled to the account which they ask of the moiety of the cargo.

Mr. Turner asked that an allowance might be made to the Defendant for the use of the ship during the whaling expedition.

The MASTER of the ROLLS. That claim would depend on the transaction being a sale. I am of opinion that it was a mortgage. If it becomes necessary, I

must so decide it.

Feb. 26. March 3.

A sum of money directed to be

THE

COOKSON v. REAY.

HE question in this case was, whether a sum of money ought, in equity, to be considered as real or invested by an personal estate; in other words, whether it belonged to the heir or personal representatives of Isaac Cookson.

executrix" in

land or some other securities," for the benefit of one for life, with remainder to his children,

" but in

The testator John Cookson the elder by his will dated in 1774, after giving to his eldest son and his heirs a

real

failure of these, to A. and his heirs for ever," and which had not been invested in land, held to have been originally impressed with the character of real estate; but by the subsequent dealing therewith by the parties beneficially interested, to have acquired the quality of personalty.

real estate, gave his residuary real and personal estate to his wife; and he appointed her sole executrix "with the tuition and education of all and every such younger children, and to provide for them with regard to their fortunes as they might deserve and merit."

He executed another testamentary paper which was as follows:-"Instructions or advice to my wife with regard to my younger children. As to my son John, who intends for the law, I would have 250l. per annum paid him until a sum of 10,000l. can be invested in land or some other securities, which is to be invested in trustees for his use, as to the interest of such money or produce of such lands for his natural life, and if he marries with your consent and approbation first obtained in writing, and not otherwise, that he make such settlement on such wife as he may marry as you judge proper, and that the remainder shall go to such child or children he may have lawfully begotten; but in failure of these, to my eldest son Isaac and his heirs for ever. As to my son Thomas, I propose that he should have the same sum, but with the same limitations as my son John. As to Joseph, I would have him brought up to business, and to give the amount in some business I am concerned, in the like manner, to prevent its being spent, to fix the like 10,000l. in the same manner above mentioned," &c.

In 1784 the testator's son John married with the consent of the widow; and by the settlement made on his marriage, dated in February 1784, to which the widow was a party, after reciting his father's will, John Cookson the younger covenanted that he would procure the 10,000l. to be raised out of the assets of his father, and paid to the trustees of the settlement, on trust that they should, with the approbation of himself and wife or the survivor of them, testified in writing, when

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1842.

COOKSON

บ.

REAY.

1842.

COOKSON

v.

REAY.

and so soon as a convenient purchase could be found, lay out the 10,000l. in the purchase of lands, to be conveyed to the trustees, to the use of John Cookson for life, with remainder to trustees to preserve contingent remainders, with remainder to the use of the intended wife for life in lieu of dower, and after her decease, "to the use of such child or children as the said John Cookson the younger might have lawfully begotten, for such estate and in such manner as the said testamentary paper so signed by the said testator John Cookson, in its true construction, directed, with such limitation over as in the said testamentary paper was mentioned." The settlement contained a power for the trustees, with the approbation of John Cookson the younger and his intended wife," in the meantime and until the purchase should be made, or in case, by the true construction of the will and testamentary paper, the sum of 10,0007. ought not to be laid out or invested in the purchase of lands," to invest the same on public or private securities; and a declaration, that the interest should belong to the person who would be entitled to the rent of the land, if purchased, by virtue of the settlement and the testamentary paper so made by the testator John Cookson.”

John Cookson paid the sum of 10,000l. pursuant to the covenant contained in the settlement, and 5000l. part thereof was lent to him on mortgage; and by the mortgage deed, dated in February 1785, it was recited, "that no convenient purchase had yet been found whereon to lay out and invest the said sum of 10,000l." The further sum of 1000l. was afterwards lent to him on the same security.

In 1792 new trustees were appointed, and the trust funds were transferred to them. By the deed of appointment the mortgage for 6000l. was recited, and

"that

"that the sum of 4000l., the residue of the sum of 10,000l. so paid by John Cookson, to the trustees had been, by them, laid out in the purchase of 5325l. 19s. 8d. 4 per cent. annuities until a proper purchase of messuages, lands, tenements, and hereditaments could be found, whereon to invest the same, upon the trusts of the will of the said John Cookson, the testator, and of the settlement made previous to the marriage of John Cookson the younger." The new trustees were to hold the trust property "to and for the several intents and purposes, and subject to the several provisoes and agreements mentioned, expressed, and declared of and concerning the sum of 10,000l. in the recited indenture of settlement of the 23d day of February 1784, and to or for no other use, intent, or purpose whatsoever."

There was no child of the marriage. John Cookson the younger died without issue in the year 1802, and there being no child, Isaac Cookson and the widow of John were then the only persons interested in the property.

New trustees were afterwards appointed by Isaac Cookson and Hannah Jane, the widow of John Cookson the younger, by a deed dated in July 1804. The deed recited the will and codicil of John the father, the settlement and the various investments of parts of the 10,000l. It then recited as follows:-"And whereas the said John Cookson the younger, some time ago, departed this life without leaving lawful issue, by reason whereof the said Isaac Cookson, or his representatives will, upon the death of the said Hannah Jane Cookson, become entitled to the actual receipt of the said sum of 10,000l. trust monies. And whereas the said Charles Wren" (who was a former trustee) "some time ago departed this life, leaving the said Samuel Castell” (his co-trustee) "him surviving. And whereas the said Samuel Castell

hath

1842.

COOKSON

v.

REAY.

1842.

COOKSON

v.

REAY.

And

hath received payment of the said two several sums of 5000l. and 1000l. secured on mortgage of the hereditaments and premises hereinbefore described and before mentioned and recited, which he doth hereby acknowledge and declare, and doth now admit the same to be in his hands, testified by his sealing and delivering these presents. And whereas the said sum of 5325l. 19s. 8d. 4 per cent. annuities are now standing in the books of the Governor and Company of the Bank of England, in the sole name of him the said Samuel Castell. whereas the said Hannah Jane Cookson and Isaac Cookson, being the only persons at the time of the execution of these presents interested in the said sum of 10,000l. trust monies, have, with the concurrence and approbation of the said Samuel Castell, testified as aforesaid, agreed and determined to nominate and appoint two other persons, to act in conjunction with the said Samuel Castell in the several trusts now remaining unexecuted and capable of taking effect, relative to the said sum of 10,000., which are in and by the said hereinbefore recited indenture of settlement of the 23d of February 1784 mentioned, expressed, and declared of and concerning the same; and they the said Hannah Jane Cookson and Isaac Cookson have in consequence requested" two other persons "to accept the same trusts and to act therein in conjunction with the said Samuel Castell, which they have respectively agreed to do," it was witnessed that Isaac Cookson and Hannah Jane Cookson directed the surviving trustee to transfer the 53257.19s. 8d. into his name jointly with the new trustees; and they did also thereby further direct and appoint the said Samuel Castell, his executors or administrators, forthwith and as soon as conveniently might be, to place out and invest upon real or government securities the said sum of 6000l., so lately received by him, and then in his hands, in the joint names of them the said Samuel Castell, Joseph

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