This see Jarman on Wills, vol. i. p. 252. was the foundation of the decision in Boraston's case (1). There the words were "and when H. should come to the age of twenty-one years, then to him, his heirs, and assigns for ever," and it was held an immediate vested interest in H, who died under twenty-one. In Doe d. Wheedon v. Lea (2) there was a devise to trustees and their heirs till A. should attain twentyfour, and a devise to A, his heirs and assigns for ever, when and so soon as he should attain his age of twenty-four, and a direction to the trustees to surrender the premises, which were copyhold; accordingly there it was held an immediate vested interest in A, upon whose death intestate under twenty-four the estate passed to his heirs-at-law. These cases and the following, Manfield v. Dugard(3), Goodtitle v. Whitby (4), Denn d. Satterthwaite v. Satterthwaite (5), proceeded on the ground that the estate given to the devisee, on his attaining twenty-one, was, in fact, only a remainder taking effect in its natural order on the determination of the preceding estates, and that the attaining the prescribed age in such a case no more imported a condition precedent than any other words indicating that a remainderman was not to take till after the determination of the particular estate. There were other cases, namely, Doe d. Hunt v. Moore (6), Bromfield v. Crowder (7) Phipps v. Williams (8), and Phipps v. Ackers (9), which proceeded on the ground that the subsequent gift over in the event of the devisee dying under twentyone, sufficiently pointed out the meaning of the testator to have been that the first devisee should take whatever interest the party claiming under the devise over was not entitled to, which, of course, gave the first devisee the immediate interest, subject only to its being divested on a future contingency. These cases had since been followed by Jackson v. Marjoribanks(10), Mil roy v. Milroy (11), and Farmer v. Francis (12). Having thus shewn that the testator had not postponed the vesting, and that the postponement of the possession did not infringe upon the rule against perpetuities, the second question was, whether the testator had devised to a class any of the objects of which might by possibility come into existence beyond the limits of the rule. It was contended that he had not. It might very well be argued, that the testator had given a meaning himself to the words "present and future," and that the devise was. only to those grandchildren who should be born "during the life of his wife Harriet;" but the only question which could arise upon this would be on the hearing of the cause, as between the different objects of the class; the point now was, whether the devise was altogether void; and taking the words in their broadest sense to signify all and every the grandchildren of the testator, whenever born, it was clear that a man's own grandchildren must come into esse during a life or lives in being at the testator's death, viz., the lives and life of the testator's children and the survivor. The life of the tenant for life had nothing to do with this branch of the question, except in the event of her surviving all the testator's children, and then she would become the life in being, as being the surviving life; consequently the second question would fall to the ground, and this must be held a good devise so far as remoteness was concerned. Mr. Stuart and Mr. Chichester appeared in support of the demurrer. The VICE CHANCELLOR.-It appears to me that this case must be decided on the principle of Leake v. Robinson (13). What the testator meant was, that those grandchildren should take who should attain the age of twenty-five years. Now, though some of the grandchildren born in the life expiration of twenty-one years after her of the wife might attain that age, before the death, yet it is evident that some might not. At the request of counsel the demurrer was re-argued upon a subsequent occasion. Nov. 22. The VICE CHANCELLOR (after taking time to consider his judgment). -- (11) 14 Sim. 52; s. c. 13 Law J. Rep. (N.S.) Chanc. 266. (12) 9 Moore, 310. (13) 2 Mer. 363. In this case I must express my thanks to the gentlemen who have argued it for suggesting the propriety of my reconsidering my opinion. I have read over the will again; and it is nothing more than this: it is a devise by the testator of his freehold and copyhold property to his executors upon trust, to pay the rents, for the support of his wife and his present and future grandchildren during the life of his wife, and after the decease of his wife upon trust, to convey the property to the use of all his present and future grandchildren, as they should respectively attain the age of twenty-five, to hold the same unto his said grandchildren, their heirs and assigns for ever, as tenants in common; and, in case of the death of any such grandchildren under twenty-five, the share of the deceased grandchild to go to the survivors who should attain twentyfive; and the residue of his property the testator gave to his wife. Now, I take the settled rule of law to be, that in an executory devise of this nature it must be in such a form as that, at all events, it must vest in the compass of a life or lives in being and twenty-one years after. Nothing is more obvious than this, that none of the grandchildren who were in esse at the time the testator made his will, might ever have become the objects of the gift, for they might have all died in the lifetime of the tenant for life, and it is within the sphere of possibility contemplated by the words of the testator that there might have been none to take, but those who should have been born after the death of the testator himself. My attention was called to the fact, that the persons from whom the grandchildren were to be derived were lives in being, but that very fact might have produced the event that some of the grandchildren born in the life of the tenant for life might not have attained twenty-five until more than twentyone years after her death. My opinion is, on the most deliberate view of the words of this will, that I should be doing violence to that rule which has long been established, if I were to hold that this devise was valid. In the case of Leake v. Robinson, before Sir W. Grant, it was argued, that some of the devisees might attain twenty-five before the expiration of twenty-one years from the death of the tenant for life, but the answer to that was that some of them might not. The demurrer must, therefore, be allowed. Will-Tenant for Life-Conversion. Testator, after certain specific bequests, gave to his wife all his property in the world for her life, and after her decease all his freehold and leasehold estates to his sister B. and her heirs: and the interest of his funded and other property between B. and S. for their respective lives, with remainders over. The testator then declared that his wife should hold peaceable possession of his house, furniture, plate, linen, and glass, and all his property at East House and elsewhere for her life; and that no distribution of any part of his property should take place until after the decease of his wife, except for payment of debts, &c.-Held, that the widow was entitled to the enjoyment in specie of certain long annuities, part of the residue of the testator's estate. The testator, by his will, dated in December 1831, gave and disposed as follows: "I give and bequeath (after all my just debts and funeral expenses have been paid) if so much remains, to my wife Sarah Way, the cottage called Stone Hill Cottage, with the lands and buildings belonging to it, now occupied by S. E. West, together with 2,000l. to and for her use and disposal for ever; and if she should survive me, all the property I possess in this world, of what nature or kind soever, to and for her use during her life; and after her decease, all my freehold and leasehold estates of what nature or kind they may be, to my sister Betsey, the wife of John House, and to her heirs in succession for ever; and the interest of the remainder and residue of my freehold and other property, equally between her and my sister Sarah Davies, the wife of the Rev. David Davies, during the lives of them, and to their respective husbands for life; after which, to the grandchildren of my sister Sarah Davies and to all the children of my sister Betsey House, share and share alike; and my will and intention is, that my wife Sarah Way should hold peaceable possession of my house, furniture, plate, linen, and glass, and all my property at East House and elsewhere, during her life if she do continue a widow, and that no distribution of any part of my property shall take place until after her decease, if she continues a widow (except for the payment of my just debts and funeral expenses as aforesaid), and I make and appoint my wife Sarah Way, my executrix, and John House, my brother-in-law, my executor." The testator died in 1844, and the bill was filed by the parties entitled under the will in remainder after the life estates, for the purpose, amongst other things, of having it declared that certain long annuities, part of the residue, ought to be converted and invested in a permanent fund. Mr. Wood and Mr. Sandys appeared for the plaintiffs; and The Solicitor General and Mr. Anstey, for the defendant, the widow. The following cases were cited :- 512. Milne v. Parker, 17 Law J. Rep. (N.s.) Pickup v. Atkinson, 4 Hare, 626; s. c. 15 Law J. Rep. (N.S.) Chanc. 213. Nov. 18.-WIGRAM, V.C.-The question in this case is, whether certain long annuities, forming part of the residue of the testator's estate, which by the will is given to his wife for her life, with remainders over, ought to be converted during the widow's life or not. I have so often had occasion to express my opinion on cases raising the same question, that it would be useless for me to say much on the general principle by which my judgment must be ruled. Where a testator makes a general, as distinguished from a specific bequest, in terms which shew an intention that the subject of the bequest should be enjoyed by different persons in succession, and the subject of the bequest consists wholly or in part of property which this Court considers perishable, the Court, in order that each legatee in succession may have some benefit from the bequest, converts the perishable part of the property into investments of a permanent character. In applying this rule, it is clear that in a simple bequest of residue to one for life, with remainder over, the Court discovers an intention which requires the application of the rule. The same will be the rule although the residuary clause may contain an enumeration of some of the particulars of which the residue may consist; that is, the rule will apply where the clause is a general clause, though some of the particulars may be described; and even though some of the particulars enumerated may be of a permanent nature, as in Howe v. Lord Dartmouth, though that circumstance, according to modern decisions, may be material where other circumstances, combined with it, raise an inference against conversion; as in the case of Bethune v. Kennedy. And the rule is the same in all the particular cases where the will contains a direct bequest to the legatees in succession, as where it is given to trustees in trust to pay the income of the property in the manner pointed out. In the case of Pickup v. Atkinson I stated my opinion as to what the rule of the Court was. I have noticed these points because each of them enters more or less into the consideration of the present case. In this case there is a bequest of residue in the first instance, as follows. After giving to his wife absolutely a cottage and a legacy of 2,000l., the testator gives all the property he is possessed of in this world to and for his wife's use during her life. And if the case stopped there, that is to say, if the same property had been simply given over to the legatees, no doubt, I apprehend, could have existed that the rule which requires conversion would apply. The question is whether anything in the subsequent part of the will shews an intention that the widow should enjoy the long annuities in specie. Now the subsequent bequest after the estate to the widow for life is this:"And after her decease, all my freehold and leasehold estates, of what nature or kind they may be, to my sister Betsey and her heirs, &c., and the interest of the remainder and residue of my funded and other property equally between her and my sister Sarah, during the lives of them," &c., with remainders over. Now the first observation arises on the bequest to the testator's sister Betsey. The testator gives her his leasehold and freehold estates after his wife's death. But the leaseholds are included in the general residuary bequest which I before read, and would, from their nature, have been convertible if the rule of Howe v. Lord Dartmouth applied. But the testator plainly discloses an intention that the leaseholds should go in specie to Betsey, thereby plainly shewing that his wife is to enjoy them in specie during her life. In the next clause, which relates to the gift over, he says "the interest of the residue of my funded and other property" is to go to his sister and other parties mentioned in remainder, in the way which I have mentioned. Now the words, it was said, assume that the long annuities should remain in specie until the death of the tenant for life; but on the general principles of construction it would, I think, be difficult to maintain that conclusion if the clause had nothing else in the will to support it. The words would be satisfied by applying them to any funded property the testator might have at his death, and cannot be read as applying specifically to the particular fund. The argument must be that the mere mention of funded property, as subsisting at the death of the tenant for life, is conclusive against conversion. The same argument would apply against converting any species of property, even promissory notes, which the testator might enumerate as in part composing his residuary estate, if in addition to that he repeated and referred to the description of the residue, in expressing the gift over: a conclusion which I am satisfied could not be supported. Then follows a direction that the widow shall enjoy peaceable possession of the property in East House during widowhood. This is conclusive for the purpose of shewing that this part of the property is not to be converted during the life of the widow. But if the description in the last-mentioned clause did not include the long annuities, it furnishes a twofold argument in favour of the conversion of the residue of the property; for, if by the general gift it was intended, why should the testator have given such special directions as to that part of the particular property? The argument is in favour of conversion of that which he had given before; and, secondly, as he has thought it right to express particular directions as to this part of the property, the inference would be that he had not the same intention as to the other property. Now it is quite clear that the long annuities are not included in this bequest, unless they are included under the words "and elsewhere;" and I think those words clearly mean things ejusdem generis with those before mentioned. The last point relied on in the argument was the direction at the end of the will, as to there being no distribution of any part of his property during the life of the wife, except for the purpose of paying debts. This, however, I take to be a direction ex abundanti cautelá, and nothing more. I have noticed these particular points separately, in order that the ground I proceed upon may not be mistaken. Standing alone, I should not think the clause respecting funded property insufficient to take the case out of the general rule; but, combined with other circumstances, and with reference to the modern decisions, I feel bound to decide against the conversion of the property, though the leaning of my mind at the close of the argument was certainly the other way. Looking at the terms of the will, that which strikes one is, that the testator has given in the most general terms all his property to his wife for life, except what he had already given to her absolutely. He then takes up the disposition of the same property at her death. He gives the freehold and leasehold property, the leasehold being prima facie convertible, to his sister Betsey. The interest of his funded and other property he gives to the persons before mentioned; and the terms of this bequest do certainly apply to long annuities, as well as to any other funded property he might have. This he follows up by a provision that his wife should enjoy certain specific property in specie, and a direction that his wife should have the enjoyment of all except what the payment of his debts and funeral expenses required. Admitting that the word "funded" would be satisfied without applying it to the long annuities, can I, in the face of the modern decisions, say that is necessarily the meaning of the word, when the passage of the will in which it occurs is placed between two clauses, one of which, without express words, shews that the widow should enjoy the property in specie, and the other of which in express terms indicates the same intention? I feel bound, upon the terms of this will, to give the word "funded" its full meaning; and, therefore, to hold that the testator intended to say, with respect to the long annuities, that which in express terms, or by necessary implication, he had directed as to the other part of his property. A testator who was carrying on the business of a brewer, in partnership with two other persons, made his will in 1802, and thereby gave all his real and personal estate to his son J. K. and three other persons, upon trust to allow his wife, during her life, to have the use of his furniture, plate, &c., of which an inventory was to be taken, and then upon trust, either out of the income or by sale or mortgage or other disposition of his real or personal estate, to raise, in the first place, 8,000l. for his younger children, and then to pay his wife an annuity of 3651. per annum during her life, and subject thereto, the testator directed his trustees to permit his son J. K. to take the annual produce and profits of his real and personal estate during his life, and after his decease it was given to the children of J. K. The testator then directed that in case his son should punctually pay the sum of 8,000l. as it became due, and also the annuity of 3651., the trustees should permit him during his life, to receive the annual produce and income of the testator's real and personal estate for his own use. The testator also appointed his four trustees and his wife his executors and executrix. The testator afterwards purchased the shares of his partners, and carried on the business in partnership with his son. He died on the 14th of September 1803. All the executors proved the will. J. K, the son and last surviving executor, died in the year 1831, having become a bankrupt in the year 1816, up to which time he carried on the business. The executors took no precaution to preserve the brewery property for the benefit of the children of J. K; and from the time of the bankruptcy of J. K. the brewery continued in the possession of his assignees until 1824, when the equity of redemption therein was released to the mortgagee. In 1815 J. K. made an absolute assignment of certain leasehold houses in consideration of 450l. No inventory had ever been taken of the furniture, &c. bequeathed to the widow for her life, who NEW SERIES, XVIII.-CHANC. died in the year 1824, and no part thereof, or of the proceeds thereof, was forthcoming. A debt of 2,9901. due from the testator's estate to one of his late partners had been converted into a debt of 5,000l., three per cent. consols. A part of the testator's personal estate, at his death, consisted of canal shares, some of which the executors neglected to realize until the year 1810, and one of the executors had received several hundred pounds by way of commission for business done by him on account of the testator's estate :-Held, on bill filed in the year 1845, by three of the children of J. K, deceased, against the personal representatives of the deceased executors, that the plaintiffswere entitled to an account and inquiry as to all the property which the testator possessed at his death, and what had become thereof, and what steps the executors took for the purpose of recovering or receiving any part of the property which without their wilful default they might have received. Held, also, that, as to the furniture and converted debt, the Master ought to have liberty to state special circumstances, and that there ought to be a direction that if the Master could not satisfactorily take the inquiry, he should be at liberty to state the circumstances that created the difficulty. To authorize executors to carry on or to permit to be carried on a trade, the property of a testator, which they hold in trust, there ought to be the most distinct and positive authority and direction given by the will for that purpose. Joseph Kirkman, by his will, dated the 20th of April 1802, bequeathed (inter alia) as follows: viz. "I give and devise all that my freehold messuage, known by the name of Pilkington, and all my estate and lands thereunto belonging, situate at Berkhampstead, in the county of Hertford, unto my wife, for the term of her natural life; and, after her death, I devise the same messuage, estate, and lands at Berkhampstead; and after my decease, I devise all my freehold and copyhold, or customary and leasehold messuages and hereditaments, whatsoever and wheresoever, and all my equitable and other estate and interest in the contracts which I have entered into for the purchase of the land-tax, charged upon and payable for my said real estate, but subject to and E |