1223.-Wigsell v. Smith.

parties; but where no one of the next of kin is in that character a party, nor the claim raised upon the record, there must be a supplemental bill.[1]

*WIGSELL U. SMITH.

1823, 18th and 19th February.-Double Power.-Construction.

[*321]

Settlement of two estates in remainder on A. W. T. for life, with remainder to his sons in strict settlement, and remainder over to M. with power to tenants for life in possession to charge the estates with a jointure of 4001.; and power to the settlor to revoke the uses of the settlement as to one of the estates, and to appoint new uses. By a subsequent deed the settlor exercises the power of revocation as to the remainder to M; in lieu thereof, appoints that estate to S. and repeats several of the powers contained in the first settlement, and gave power to A. W. T. and S. to charge the estate with 4001. by way of jointure. A. W. T., by separate deeds, executes both powers of jointuring.—Held, on a bill by his widow for both jointures, that A. W. T. had no new power to jointure under the second settlement,

THIS was a bill by a widow, praying that she might be declared to be entitled to two several rent-charges of 4001. charged, by way of jointure, under two several powers, created by different settlements of the same estate.

Thomas Wigsell was in 1797 entitled to the St. John estate, as tenant for life in possession, under the will of Henry St. John; and Susannah Wigsell was, under the same will, entitled to a moiety of the same estate in remainder as tenant in tail expectant on the failure of issue of Thomas Wigsell. Thomas Wigsell was at the same time entitled as tenant for life in possession to the Wigsell estate, with remainder to his first and other sons in tail, with remainder to Susannah Wigsell in tail, with reversion to himself in fee, By ̊ a deed, dated the 28th of November 1797, and by a recovery suffered by him and Susannah Wigsel, the estates were settled to the old uses, so far as respected the life estate to Thomas Wigsell, the estate-tail to his first and other sons, and the estate-tail to Susannah Wigsell, with remainder to trustees for a term of 500 years, with remainder to the daughters of Thomas Wigsell, as tenants in common in tail, with cross-remainders with remainder to the use of Attwood Wigsell Taylor for life, with remainder to trustees to preserve contingent remainders, with remainder to the first and other sons of Att- [*322] wood Wigsell Taylor in tail male, with remainder to his daughters, as tenants in common in tail, with cross-remainders; with remainder over to a family of the name of Mercer. This deed reserved a power to Thomas Wigsell and Susannah Wigsell, jointly, or to the survivor of them alone, to revoke the uses thereby limited (except as to the term of 500 years, and the limitation to the daughters of Thomas Wigsell in tail)" and to appoint any new or other use or uses, estate or estates, trusts, powers, provisoes, limitations and

[1] Vide Manning v. Thesiger, ante, 106 and note.

1823. Wigsell v. Smith.

conditions, of or concerning the same premises, or any part thereof." It also contained the usual powers of leasing, and sale and exchange; and a condition, that any person becoming entitled to these estates, "under the limitations. aforesaid," should within six months afterwards assume the name and arms of Wigsell and also a covenant on the part of Susannah Wigsell, that she would not after the death of Thomas Wigsell exercise her power of revocation and appoinment, as to the St. John estate, for any other purpose than that of selling, exchanging, or making partition. And likewise contained a power, authorizing every tenant for life of the estates under the limitations in that deed, to appoint, by deed or will, to the use of any woman with whom he might intermarry, for her life, as her jointure, and in bar of dower, any annual sum not exceeding 400l. to be issuing out of and chargeable upon all or any part of those estates, and also to charge the same to the extent of 2,000. with portions for younger children.

The joint power of revocation and new appointment was never executed. In September 1804 Thomas Wigsell died without issue, leaving Susannah Wigsell surviving.

[*323]

*By deed-poll, dated the 13th of November 1805, and duly executed by Susannah Wigsell pursuant to the power, she revoked the uses, trusts, estates, powers, provisions, conditions, and limitations of the Wigsell estate, subsequent to the limitation to the daughters of Attwood Wigsell Taylor; and in pursuance of the power contained in the deed of 28th November 1797, appointed the Wigsell estate, after failure of issue of the body of Attwood Wigsell Taylor, to the use of R. T. Streatfield, for life, with remainder to his first and other sons in tail, with divers remainders over. This deed-poll also contained a power to Attwood Wigsell Taylor, and R. T. Streatfield, when entitled as tenants for life in possession, " under the limitations aforesaid," to charge the estate with any annual sum not exceeding 4001. by way of jointure to any woman with whom he might intermarry, and with any sum not excceding 3,000. for the portions of younger children.

This power to jointure was in the following words:

"Provided always, and the said Susannah Wigsell doth hereby further limit and appoint that it shall be lawful for each of them the said Attwood Wigsell Taylor, and Richard Thomas Streatfield, when entitled as tenants for life in possession to the said manors, hereditaments, and premises, under the limitations aforesaid, either before or after his intermarriage with any woman or women, from time to time and at any times, by any deed or deeds, instrument or instruments in writing, to be sealed and delivered in the presence of, &c.or by his last will, &c. to grant, limit, or appoint, to or for the use of any woman or women with whom he shall intermarry or take to wife, for the life [324] or lives of such woman or women, for her and their jointure and #jointures, and in bar of her or their dower, any annual sum or sums of money, or yearly rent-charge or rent-charges, not exceeding in the whole the yearly sum of 4007, to be tax-free, and without any deduction, and to be issu

1823.-Wigsell v. Smith.

ing out of, and chargeable upon, all or any part of the said manors, hereditaments, and premises, with such powers and remedies for recovering such annual sum or sums, yearly rent-charge or rent-charges, when in arrears, and such term or terms of years for better securing the due payment thereof, as to the said Attwood Wigsell Taylor, and Richard Thomas Streatfield, shall seem proper; so that there never be more than the said yearly sum of 400l. payable out of all or any of the premises, as a jointure or jointures at one time."

In this deed poll the powers of leasing, and the condition to take the names and arms of Wigsell, were repeated in the same form as the power to jointure.

On the 25th of December 1806, Susannah Wigsell died, and Attwood Wig sell Taylor thereupon became entitled to the estates as tenant for life in possession; and he assumed the name and arms of Wigsell, pursuant to the condition. In 1814 he married; and by indenture dated the 1st of November 1816, in execution of the power reserved in the deed of Nov. 1797, and of all other powers enabling him in that behalf, he charged the estates over which the power extended with a jointure of 400l. a year to his wife, in bar of dower, to commence on his decease. By another indenture of the 7th November 1816, reciting the settlement of the 28th of November 1797, the deed of revo. cation and new appointment of the 13th of November 1805, and the power to jointure contained in the last-mentioned deed, and that he was desirous of exercising this second power of jointuring in favor of his wife, he, [*325] in pursuance of the second power, charged the estates over which it extended with a further jointure of 400l. a year, in bar of dower, and to commence on his decease. In 1821 he died, leaving issue by his wife; and soon after his death his widow filed this bill against her eldest son and the trustees, praying that it might be declared that she was entitled to both these jointures.

Mr. Preston, and Mr. S. Cullen, for the plaintiff :-The question is; Whether the power to jointure contained in the settlement of Nov. 1797, was revoked by the deed of revocation and new appointment in Nov. 1805. If not revoked, it must be held that the powers in each of these deeds were co-existent, and being co-existent, that they were both duly executed, and that the plaintiff is entitled to the two jointures. It was decided in Freke v. Lord Barrington(a) that a power cannot be constructively revoked, but must be expressly named, in order to make the revocation valid. But whether this power was or was not revoked does not much affect the case of the plaintiff; for if there was not a double power to jointure over one of the estates, there must have been one power over each of the two estates. In the deed of November, 1805, which extended only to the Wigsell estate, Attwood Wigsell Taylor is expressly named in the power to jointure, and it is plain that there was an intention on the part of Susannah Wigsell to confer additional benefits on him and the other parties claiming under her appointment. The fact, that

(a) 3 Bro. C. C. 274.

1823.-Wigsell v. Smith.

the power to raise portions for younger children, which, in the deed of 1797, extends only to the sum of 2,000l. is increased by the deed of 1805 [*326] to *3,000l. shows an intention to extend the powers. The claim

of the plaintiff, though not consistent with the probable intention of the parties, is clearly consistent with the express terms of the deed.

Mr. Bickersteth, for the defendants :-It is expressly provided, in the powers of jointuring, in each of the deeds, that no more than one jointure should be payable out of the estate at one time. The sole object of the deed of 1805 was to revoke the uses limited in the deed of 1797, to the family of Mercer, and to substitute new uses in favor of Mr. Streatfield and his family. It must be admitted that the power to jointure in the deed of 1805, extends to Attwood Wigsell Taylor, because he is expressly named in it. But as to him it was unnecessary, as he was then invested with a similar power under the deed of 1797. The question is merely whether the powers are cumulative; because it must be admitted that the power in the deed of 1797 was not revoked. The insertion of the name of Atwood Wigsell Taylor in the power in the deed of 1805, was merely an uunecessary repetition, and conferred no new power.

The VICE CHANCELLOR :-The argument of the plaintiff supposes, that as to those persons who continued to take under the first settlement, the conditions and powers of the second settlement were meant to be accumulative. The condition to take the arms and name, the power to lease, the powers of sale and exchange by the trustees, could not in their nature be accumulative. No additional force was given to these powers and conditions by the second set

tlement; and the names of the persons taking under the first settle[*327] ment could only be *there introduced into the second settlement for

the purpose of manifesting the intention of the settlor, that these conditions, powers, and provisoes, should equally affect all persons who took by the first or second settlement.

The inference is, therefore, that the names of the persons taking under the first settlement were introduced into the power of jointuring only for the purpose of manifesting the same intention of the settlor. According to the language of this power of jointuring in the second settlement, it is to be exercised by Attwood Wigsell Taylor, when he should be in possession under the second settlement. But he took nothing by the second settlement, and never could be in possession under it; and the inaccuracy of this language strongly manifests that the settlor had only one common intention, as applied to the objects of both settlements.

Declare, therefore, that Attwood Wigsell Taylor had no power of jointuring under the second settlement.

"This court doth declare, that the plaintiff Juliana Wigsell is entitled only to the rent charge, or sum of 400l. a year secured to her by the indenture in the pleadings mentioned, dated the 1st day of November 1816; and doth order

1823. Ford v. Rawlins.

that it be referred to Mr. Courtenay, one of the masters of this court, to take an account of what is due to the said plaintiff Juliana Wigsell, in respect of her said rent charge or sum of 400l. a year. It is ordered, that what the said master, on taking the said account, shall find due to the said plaintiff Juliana Wigsell, be paid to her by the said defendant Richard *Smith; [*328] (the trustee ;) and for the better taking the said accounts, &c. And this court doth not think fit to give any costs on either side; and any of the parties are to be at liberty to apply to this court," &c.

Reg. Lib. B. 1822, vol. 604, 6.

FORD V. RAWLINS.

1823, 11th and 21st February; 9th April.-Will.--Construction.

Testator bequeathed to his wife the use of his furniture, &c. which he desired to be distributed among his children when the youngest attained 21, at her and his executors' discretion; such part to be reserved for her use as might be thought reasonable, and at her death to be distributed as above directed.--Held that those children who died before the youngest attained 21, did not take vested interests.

THE question in this cause was, whether those children of the testator who died infants took vested interests under the following clause in his will:

"I further leave to the use of my said dear wife, my furniture, plate, jewels, books and pictures, which I desire may be distributed amongst our children on the youngest attaining twenty-one years, at her and my executors' discretion; such part being nevertheless reserved for her use as may be thought convenient; and, at her death to be distributed as above directed."

The testator left a widow and six children; three of whom died infants, and the other three attained the age of twenty-one.

Mr. Horne, and Mr. Combe, for the children who attained twentyone-I. It is decided, that a legacy to a particular class of persons, at a particular time, vests exclusively in those persons who constitute the class at the time fixed by the will. Godfrey v. Davis. (a) In the present case there was a direction to distribute certain articles among a cer- [*329] tain class of persons, at a certain time; therefore those who died before that time arrived must be held to take no interest.

II. This is not within that class of cases where the legacy is given to one for life, with remainder to the children; and where it might therefore be considered that the gift to the children was postponed merely for the purpose of giving a life interest to the wife. The wife here takes a qualified interest, determinable when the youngest child attains twenty-one. Batsford v. Kebble ;(b) Hughes v. Hughes ; (c) Crone v. Oddell. (d)

III. The nature of the property in this case makes no difference.

(a) 6 Ves, 43. VOL I.

(b) 3 Ves. 363.

(c) 14 Ves, 256.

25

(d) 1 B. & B. 449.