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CASES ARGUED AND DETERMINED

IN THE

Courts of Chancery.

MICHAELMAS TERM, 12 VICTORIÆ.

Nov. 6, 7,

Nov. S. 7, 8.}

MARTIN V. WELSTEAD.

and nieces, and others, continued as follows:

“And as to all my wines, provisions, plate, WillConstructionResiduary Bequest. plated goods, jewels

, linen, china, pictures,

books, household goods and furniture, A testator, after directing his debts, fc. horses, carriages, live and dead farming to be paid, bequeathed to his wife his monies, stock, crops and other effects, and all the plate, gc. (enumerating several particular rest and residue of my monies, stocks, funds, descriptions of personal property), and all and securities for money, goods, chattels, the residue of his personal estate after pay. credits, and personal estate whatsoever and ment of his debts, fc., and he directed his wheresoever, except my leasehold messuage wife to give to his executors a bond for and water-mill, with the machinery, stocksecuring to them the payment of half the in-trade and appurtenances, &c., hereinafter value of the said wines, plate, ģc., enume- specifically bequeathed, I give and bequeath rating several of the above-mentioned de- the same, after and subject to the payment scriptions of personal property, but not men- of my just debts, excepting such as shall tioning the residue of his personal estate. be charged upon any of my freehold, copy

hold, or leasehold estates, as aforesaid, my months from his death, and the plate was to be

, , untomy wife Sophia

Welstead, her executors, on the bond was for the benefit of his nephews administrators, and assigns, for her own aband nieces :-Held, that the bond was to be solute use and benefit, subject nevertheless

and upon condition that she my said wife which was specifically enumerated, and not do and shall, within three calendar months

after my decease, execute and deliver to my

executors hereinafter named a bond in a This suit was instituted for the due ad- payment of one equal half part of the value ministration of the estate of Charles Wel- of the said wines, provisions, plate, and stead. He made his will, dated the 3rd of May

and effects hereinbefore bequeathed to her

, except such debts as were charged upon

such value to be ascertained as hereinafter any of his real or personal estates, to be

mentioned ; and I declare that the sum of paid out of his personal estate, and after

money which shall be ascertained to be one bequeathing several legacies to his nephews equal half part of such valuation as afore

estate.

New

ERIES, XVIII.--CHANC.

B

said, and which shall be secured by the bond in the amount to be received from Mrs. of my said wife, shall be secured to be paid Welstead's estate, under the bond given by to my said executors without interest, within her to her husband's executors. one calendar month after the decease of my Mr. Purvis, Mr. J. Parker, and Mr. said wife, and shall be in trust for all and Glasse appeared for the appellants, and every of my nephews and nieces herein- Mr. Stuart, Mr. Walker, Mr. Elmsley, before named, who shall be living at the and Mr. Heathfield, for the respondents. decease of my said wife, in equal shares and The question was, whether the interest proportions, as tenants in common;" and he of the wife was virtually confined to a life then directed that the valuation thereby estate in one moiety of the residue of the ordered should be made by two persons,

testator's estate: or whether she took an one to be nominated by his wife, and the absolute interest in the residue, with the other by his executors; and the plate was exception of those articles which were spenot to be valued at more than 5s. per ounce. cially enumerated, and was required to give The testator died in March 1832. The a bond for one moiety of the value of those executors had a valuation made in com- specific chattels. pliance with the directions of the will; and Michell v. Michell, 5 Mad. 69, was in February 1833 the executors took a cited. bond from Mrs. Welstead in a penalty of 10,0001., which recited that the valuation Nov. 8, 1848.—The Lord Chancellor. had not been completed in consequence of — The question in this case is as to the conthe whole personal estate of the said testator struction to be put on that part of the tesnot having been fully realized, collected and tator's will in which he directs that his wife, gotten in, and the condition was for the to whom he had given the residue of his payment by Mrs. Welstead, her heirs, exe- property, is to give a security by bond for cutors, or administrators, within one month the benefit of other members of his family. from her decease, of the sum of money The language is certainly very obscure and which should be ascertained to be one equal well calculated to raise difficulties; and it half part of the said wines, provisions, plate, is not easy, upon any construction, to satisfy and other articles of personal estate, and all the words of the will. Now he gives, chattels and effects, which, according to the in terms quite sufficient to pass a general true construction of the will, ought to be residue, all his property to his wife: but he included in the valuation.

enumerates certain descriptions of property ; By the decree of the Vice Chancellor it for after giving her a leasehold estate absowas declared, that by the will the monies, lutely, he gives to her all his "wines, prostocks, funds, securities for money, credits, visions, plate, plated goods, jewels, linen, and other articles of a like nature belonging china, pictures, books, household goods, and to the testator, were bequeathed to his wife furniture, horses, carriages, live and dead absolutely ; that the property on account farming stock, crops, and other effects.” So of which the wife was to give a bond, con

far he has enumerated certain specific porsisted of the testator's wines, provisions, tions of the personal estate. Then come plate, plated goods, jewels, linen, china, these words: "and all the rest and residue pictures, books, household goods, and fur- of my monies, stocks, funds, and securities niture, horses, carriages, live and dead farm- for money, goods, chattels, credits, and pering stock, crops, and other effects of a similar sonal estate whatsoever and wheresoever." nature: and the valuation which had been If the question had been whether that altomade was confirmed: and it was ordered gether amounts to a residuary clause, there that the bond which had been given by Mrs. can be no doubt in the world it would. It Welstead should stand as a security for half is very unnecessarily elaborating the resithe amount of the valuation, namely, 2,0531. duary clause, but it comes to this: he gives 18s.

all his personal estate, partly enumerating Mrs. Welstead died in May 1847, and a and describing it, and then using general bill of revivor was afterwards filed, and a words sufficient to comprehend everything petition of appeal was presented by some of not before enumerated or described. The the parties who were beneficially interested result, therefore, will be a general gift of the residue: of that there can be no doubt. Then residuary legatee. It is not so much amcomes the exception as to the leasehold estate plified as the first gift, still it is a gift in terms which he excepts from the general gift; and which, no doubt, would amount to a resithen as to all these things which he has de- duary clause. There are, consequently, two scribed, he says, “I give and bequeath the residuary clauses, that is, two clauses which, same, after and subject to the payment of my taken by themselves, would be sufficient just debts, except such as shall be charged to pass the whole residue of personal estate : upon any of my copyhold, freehold, or lease- by one of which clauses the whole is given hold estates as aforesaid," (which he has spe- to the wife ; and by the other of which she cifically charged upon and directed to be paid is called on, after the value of the things so out of those estates so charged), “my lega- given shall be ascertained, to give a bond cies, funeral and testamentary expenses,

for one half of such valuation : and that unto my wife Sophia Welstead, her executors, bond is to secure money, and the amount is administrators and assigns, for her own ab- to be payable to nephews and nieces. solute use and benefit, subject nevertheless Now, there are three ways, and only three and upon condition that she, my said wife, possible ways, in which a construction can do and shall within three calendar months be put on this clause. One cannot possibly after my decease execute and deliver to my be contended for, because it would amount executors hereinafter named a bond in a to an absurdity, but still it would be most sufficient penalty for securing to them the consistent with the terms actually used, payment of one equal half part of the value namely, that the first gift is of the whole of the said wines, provisions, plate, and personal estate, and that the articles enuother articles of personal estate and chattels merated shew that the testator intended that and effects hereinbefore bequeathed to her, the estate should go as it existed at the time such value to be ascertained as hereinafter of his death. But let us look at the valumentioned. And I declare that the sum ation clause, which, although it is in terms of money which shall be ascertained to be not so ample, yet is equivalent in point of one equal half part of such valuation as legal effect : and the words might admit of aforesaid, and which shall be secured by the a construction, which, however, has not been bond of my said wife, shall be secured to contended for, and which could not be be paid to my said executors, without in- according to the testator's intention, that terest, within one calendar month after the all that remained was to be valued, without decease of my said wife, and shall be in trust reference to what was payable out of the for all and every of my nephews and nieces personal estate which was the subject of herein before named who shall be living valuation ; that valuation was to take place at the decease of my said wife in equal three months after his death, and he directed shares.” Then comes a provision as to the not that the value shall be put on the plate shares which they are to hold, and then as part of the residue, and that it was therecomes this direction as to the valuation : fore to be converted and applicable as part “And my will is, that the valuation herein- of the residue, but he directed that the plate before mentioned shall be made by two was to exist in specie, because it is to be persons, one to be chosen by my said wife, valued at a certain rate not to exceed 5s. and the other by my executors : and in the per ounce. This is wrought plate, and event of such two persons not agreeing, they therefore more valuable than the mere mint shall be at liberty to appoint a third person, price of the silver which may be in that whose valuation shall be final and conclu- plate : but he fixes himself a maximum of sive on all parties interested therein : the value to be put on the plate. It is imposplate” (this seems to be a very important sible to suppose that he intended the whole provision) “not to be valued at more than property to be considered as residue, be58. per ounce."

cause he directs one half of the residue to There is here a clause which, standing by be divided, clearly shewing he intended the itself, would amount to a residuary clause. valuation to apply to property which was If the will had been made containing that found to exist, and which was to be valued clause and giving property by that descrip- three months after his death (a period tion to any person, that party would be a much too early for the conversion of the

as

into money.

whole property into money), but shewing, for the money to be distributed after payfrom the mode of valuation, that the plate ing all the charges upon it. The objection was to be valued as plate, and not is, that the Vice Chancellor has decided that constituting part of the residue.

that is not the true construction. It appears Then, under these circumstances, there are to me, that certainly many of the objections three constructions that might possibly be that apply to the first construction would considered as arising out of these words. One apply to that construction also; because, if would be that you are to take the property this is to apply in the way described, it as it was found; that whatever the testator would be treating the whole property, not had in his possession was to be subject to wanted for the purpose of paying the debts, valuation within three months, and a bond as part of the residue to be dealt with as was to be given for half that amount. That is residue, which, for the purpose of the valu. quite impossible, and nobody has contended ation, was to be considered to be converted for it; but still it is a construction more

It is quite clear the testator consistent perhaps with the words used than did not mean that. How are you to ascer. any other. But that would lead to this tain a residue thirteen weeks after his death? absurdity: there being no deduction of debts Or if you are to value property for the pur. and other expenses of administration, the pose of the residue, for what reason does widow might be called on to give a bond, for the testator limit the scale on which the the benefit of collateral members of the plate is to be valued ? Why, if he confamily, for a higher amount than the pro- sidered it all as residue, and meant to divide perty itself would produce. That could the residue between the two parties for the not be thought reasonable: therefore that benefit of his wife and the other collateral has been rejected, and has not been con- members of the family, for whom she was tended for. But, still, looking at the words, to be trustee to the amount for which the and seeing how far they are applicable bond was to be given (and what does it to any other construction, it is not imma- signify whether the plate was to be conterial to observe, that the construction most verted into money, or to be considered as consistent with the words used is one that part of the general residue ?), how could it cannot possibly be adopted.

be considered that it was with that object Then we have to deal with the other two, that he fixed the maximum price for the one of which is, that it was intended that plate ? If, on the other hand, he meant the the proper residue should be ascertained, property should exist in specie, to be enjoyed and that the bond should be given for half by the wife, then he might very well say, “ I the amount of the residue—the residue of give you these particular articles of personal course meaning technically, as it does mean, estate, but I mean to a certain extent, which not the property as it was found to exist, I now fix quoad the plate, you shall be but what should remain disposable after the accountable for one moiety to the other payment of debts and other charges upon it. members of the family.” It was for the

The other is that which the Vice Chan- protection and benefit of the wife that he cellor has adopted, namely, that there was fixed the maximum price at which the plate an intention, notwithstanding the general should be valued. If he intended the other terms used in these two clauses, and although members of the family should have half of they would constitute residuary clauses as the residue, it would be immaterial what between a residuary legatee and parties constituted the residue. The object would claiming against the interest of the residuary be attained by looking to the value of the legatee, yet as between the parties who are residue, as it might ultimately have to be now raising the question under these two divided. These two circumstances, thereclauses, the intention was not to interfere fore, the period at which the valuation was with the proper residue of money or any to be made, and the rule laid down as to other description of property, after deduct- the maximum price fixed on the plate, seem ing those articles specifically described. to me to put it beyond all question, that he

Now it is contended by this appeal, that did not mean, in directing the sum for which the Vice Chancellor was wrong, and that the bond was to be given, that the bond the bond was to be for the proper residue, should be for the half of the residue to be ascertained in the ordinary way after dis- the Vice Chancellor, and which is the subcharging the prior obligations on it.

ject of appeal. I must, therefore, dismiss If that be so, there is nothing left, but this appeal, and certainly with costs. the construction adopted by the Vice Chancellor, and which I think is more consistent with the language used than either of those M.R. which I have been considering. Because

July 19;

GORDON V. WHIELDON.* it is clear that in giving to the wife he does Aug. 3. use expressions much more ample-much

Legacy-Construction. more descriptive of the intention he seems to have entertained-than he does when he A legacy was bequeathed to A. B, his comes to describe the property, the value of wife and children :--Held, that the parents which is the subject of the bond. He gives and children took together as joint tenants, specifically a long enumeration of particular and that A. B. and his wife were to be descriptions of property, and then he gives reckoned as one person, and took only one the residue of the estate. When he comes share. to describe the property, for the value of which the bond is to be given, he goes over Elizabeth Bree, the testatrix in this again part of the enumeration of the par- cause, by a codicil dated the 31st of August ticular articles, but says nothing in words 1841, gave the following legacies :-" To as to the residue of the estate. It is true Robert Shank Atcheson, his wife and that he uses words which, if found in a children, 14,0001. This legacy is in conwill, amount to a residuary bequest. That sequence of the unremitting care and is perfectly true, if you are looking to see attention with counsel of the said Robert whether the words amount to a residuary Shank Atcheson during the trials and bequest or not, as between a residuary troubles of my blessed child after her marlegatee and other persons. But as between riage. To Captain Robert Gordon, his wife different parties interested in the residuary and children, 3,0001. To William Salt. bequest, it is clear the first gift was a resi- well, his wife and children, 3,000l.” duary gift. From that residuary gift, he The testatrix died on the 15th of March intends to secure, by means of this bond, 1845. certain provisions for other parties. Then, A suit (Whieldon v. Spode) having been why did he not repeat the same words, or instituted by the executors for the adminisrepeat the only words that would be clearly tration of the estate of the testatrix, and operative to that effect? If he intended to sums on account of the second of the above give half the residue why did he not in legacies having been carried over to the terms say, the amount of half the residue, account of Capt. Robert Gordon, his wife when ascertained, is to be secured by the and children,” a petition in that suit was wife’s bond for other members of the family? presented by Captain and Mrs. Gordon and Instead of that, he has enumerated to a their two children, both of whom were certain extent the particular articles spe- living at the date of the codicil, and also at cified in the first gift, and then that is to the time of the decease of the testatrix, and be the amount for which the bond is to be one of whom was an infant, stating that given three months after the testator's they were advised that on the construction death ; and he lays down a particular rule of the above bequest, they became entitled by which the value of one specific article to the legacy as joint tenants, the parents is to be ascertained.

being together entitled to a third, and each Without, therefore, saying that there is of the two children to a third, and accord. not considerable doubt on the language ingly praying payment to the parents of used in the testator's will, I think, looking one-third of the fund in court, and to the at the three constructions which it is pos- adult child of another third, and that the sible to put, that two are necessarily ex- remaining third might be carried to the cluded; and that the only one consistent separate account of the infant. with the language which the testator has The Master of the Rolls, however, one used is the one that has been adopted by

* Ex relatione.

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