his faid trustees, or the furvivor of them, then he did authorife and empower his faid trustees to with-hold or deduct from the faid fum of £. 3000 as his faid trustees should in their judgment think proper, according to the nature and degree of said misbehaviour; and he did, thereby, direct that his faid trustees should receive, employ, and apply to the best seeming advantage, all fuch fum or fums of money as fhould be fo with-held and deducted for the fole ufe, benefit, and behoof of his faid wife, with full liberty to difpofe of the fame, either during her life or by will. He then gave, after the decease of his wife, feveral pecuniary Jegacies (24 in number, other than that one legacy of £.100 was given, to the now four children of Archibald and Mary Grant, to be equally divided, fhare and fhare alike, withing that each of them may have the liberty of managing his and her refpe&tive share, as he or she may chuse.)" The teftator then provided that, "if his eftate and effects, after the decease of his faid wife, and after payment of the faid legacy, or fum of £.3000, fhould fall fhort of paying the legacies before given, that the said several legacies (except the faid Henrietta Maria Molefworth's) should abate in proportion to the several legacies given to them refpectively;" and proceeded thus "of the legatees mentioned, 24 in number, it is at leaft poffible that one or more may die before he, she, or they, become intitled to his, her, or their legacy or legacies, and, in that cafe, his will was, that the fum or fums to given should revert and return to the fole ufe, benefit, and behoof of his faid wife." Henrietta Maria Molefworth furvived the teftator, but died in 1784, aged 23 years, unmarried and inteftate; the teftator's widow died in 1785; whereupon the plaintiff, as adminiftrator of his late daughter, H. M. Molefworth, applied to the defendants for payment of £.3000. The question was, Whether the legacy was vefted, or whether it was so affected by any thing as to make it not payable, on account of the death of the legatee in the life-time of the wife? LORD CHANCELLOR.-I think these are four feparate legacies of aliquot parts of the £.100, to each child; and that the teftator has only mifreckoned the number of his legatees, and meant Mifs Molefworth's legacy to be no more vefted during the life of the wife than the others, although indeed, if had it not been for the fuperadded words, it would, by the prior gift, have been a vested legacy; as it is, the le gacy lapfed by her death in the life-time of the wife. READ READ. DEVAYNES. Teftator appointed certain perfons executors, and gave them legacies; which one of them who had not proved the will, or acted as executor, claimed. The MASTER OF THE ROLLS faid, he was not entitled to his legacy, without acting or at leaft proving the will. CASE S In the COURT OF KING'S BENCH, DOE on the Demife of MUSSEL against MORGAN. George Muffell, feifed in fee of the premifes in queftion, on 13th December, 1727, by will devifed them to his wife Elizabeth for life, remainder to his fon Ebenezer Muffell for the term of 99 years, if he should fo long live, and from and after the feveral deceases of his wife and fon to the heirs of the body of Ebenezer: but his will was, that it should not defcend entirely unto Ebenezer's eldeft son, but that he might, by deed or will, devife the fame to and for the benefit of all his children that fhould be living at his deceafe; and if he should make no fuch limitation or appointment, then that the fame fhould be equally divided among all and every the fon and fons as tenants in common, and the feveral heirs of the body and bodies of fuch fon and fons, with benefit of furvivorship among the fons, and if there should be but one fon, to that fon only; in de fault of fuch iffue, to the daughters with like limitations: with divers remainders over. George Muffel died 6th June, 1733. The widow entered and died October, 1741. Ebenezer entered, and in 1752, having then only one daughter, by leafe and releafe conveyed the premifes, in contemplation of a marriage between Morgan and the faid daughter, to the ufe of the hufband for life, remainder to the wife for life, remainder to the iffue of that marriage. Ebenezer afterwards married, and had iffue the leffor of the plaintiff, and died in 1764. The defendant is the furviving issue of the marriage between Morgan and Elizabeth Morgan. The queftion was, Whether the devife to the iffue of Ebenezer was good by way of executory devife, or was a contingent remainder? If the former, the plaintiff was entitled to recover: but, if the latter, it was destroyed on the death of the tenant for life during Ebenezer's life, for want of a particular estate to fupport it. LORD KENYON, Ch. J.-No arguments tend so much to feduce our judgments as those which are addressed to our paffions; and therefore they ought to be difcouraged in the Courts of Law.. I verily believe that it would have been better for the public if the fame rules of construction, which hold in the cafes of deeds, had always been applied to wills. For we find that very few questions arife on the limitations. of eftates in deeds compared to thofe which arife on wills. Certain technical expreffions were formerly adapted for the creation of particular eftates; and, thofe being well underftood, it feldom happens that others lefs definite are fubftituted in their room. Soon after the Statute of Ules, an attempt was made to introduce a different construction on deeds to ufes from that which was put on common law conveyances; but that attempt failed of fuccefs, and the fame rule, of construction applies to both. However, it is now too late to apply it to wills: but, notwithstanding greater indulgence is fhewn to wills than to deeds, we must take care not to depart from thofe rules which have been long established in the conftruction of wills. It was fome time before executory devifes were admitted by the Courts of Law; but being found of general utility, they were established in the time of Charles the Firit; and therefore it would be dangerous now to overturn them. But if ever there existed a rule respecting executory devifes, which has uniformly prevailed without any exception to the contrary, it is that which was laid down by Lord Hale in the cafe of Purefoy v. Rogers, that " where "where a contingency is limited to depend on an estate of freehold, which is capable of fupporting a remainder, it shall never be construed to be an executory devife, but a contingent remainder only, and not otherwife." Now that rule applies to, and muft govern, the prefent cafe. In Hopkins V. Hopkins, where there was a devife to trustees in trust for S. Hopkins the fon of John Hopkins for life, remainder to his first and other fons in tail male, remainder to the other fons of John Hopkins fucceffively, with like remainders to their first and other fons, &c. remainder to the first and every other fon to his daughter Sarah; remainder to the first and every other fon of Anne Dare in tail male, remainder to his own right heirs; and S. Hopkins died in the devifor's lifetime, without iffue; John Hopkins had no other fon; and no other remainder was in effe at the time of the devifor's death but a fon of A. Dare; the question was, Whether by Sa muel's death in the devifor's life-time the feveral limitations between him and Dare were not become void? or, Whether the intermediate limitations fhould not enure by way cutory devife to any other fon he might thereafter have? Lord Chancellor Hardwicke faid, "It feems to be allowed that if things had stood at the devifor's death as they did at the time of making the will, the limitation in question would have been a remainder, by reafon of Samuels eftate, which would have fupported it: fo is the cafe of Purefoy v. Rogers and limitations of this kind are never conftrued to be execu tory devifes, but where they cannot take effect as remainders." And in that cafe it was exprefsly decided to be an executory devife on the ground of Samuel's death in the lifetime of the devifor. This point therefore has been too long fettled to be now over-ruled. Per Curiam, of exe Poftea to the defendant. TRINITY TRINITY HOUSE v. SORBIERE. The statute 4 Anne, cap. 20, for rebuilding the EdystoneLight-House, recites the danger to which fhips are liable in paffing the Edystone-Rock, and that in confequence of an agreement entered into between the Trinity-House and the masters and owners of shipping, the former, in confideration of receiving 1d. per ton outwards, and the like inwards, for all fhips and veffels which fhould pafs by fuch light-houfe, (coafters excepted, which fhould pay 12d. only for each voyage,) had in 1696 erected a light-house on the rock, to the fatisfaction of the officers of fhips of war, and of all others concerned in trade and navigation, and that it was preferved till 1703, when it was blown down. The preamble then states the neceffity of rebuilding it; and, in order to encourage the Trinity-Houfe fo to do, the ftatute enacts that after the building, &c. and placing a light, &c. there shall be paid to the faid mafter, &c. by the mafters and owners of all English fhips, hoys, and barks, which fhall pass by the faid light-houfe, fo intended to be erected (except coafters,) the duty of Id. per ton outward-bound, and alfo Id. per ton inward-bound; that is to fay, of the merchant one moiety, and of the owner of the ship the other moiety; and for all ftranger's, or aliens', fhips 2d. for every ton; and for coafters 25. for each time they fhall pafs; the faid feveral duties to be collected and received by fuch perfon as the master, &c. shall appoint in that behalf, in fuch port of place where fuch fhip, &c. fhall fet forth, or where fuch fhip, &c. fhall arrive before they load or unload the goods therein. An action having been brought by the Trinity-Houfe against the owner of a British fhip, for the Light-House duties impofed by this Act, and by the Charters of other Light-Houfes, the fhip having paffed the Edyltone and other Light-Houfes, but not touching at any British port; The question now upon a fpecial verdict was, Whether this fhip failing from foreign port to foreign port, and not touching in Great Britain or Ireland, was liable to these duties? LORD |