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charity, yet quod voluit non dixit, and he has failed to give effect to his intention, the next of kin will be entitled ; and, as there are here no next of kin, the Crown has the beneficial interest in the fund. James v. Allen (a), Fowler v. Garlike. (6)
The Earl of
Mr. Bickersteth, in reply.
The MASTER of the Rolls.
This case appears to me not distinguishable from Waldo y. Caley.(c) In that case Sir William Grant, considering that the widow had an absolute discretion as to the disposition of the fund, made a declaration accordingly; and thinking a scheme unnecessary, he directed that any of the parties should be at liberty to apply as there might be occasion. This case was afterwards appealed to Lord Eldon, and application was made to him to stay any distribution of the fund until the appeal should be determined. This application was refused, and the appeal was afterwards abandoned. I shall follow a precedent so entirely in point, and declaring that the distribution of the several charitable bequests under the will is left to the absolute discretion of the several legatees, I decline directing any scheme, leaving to any party liberty to apply as there may be occasion.
JAQUES v. JOHNSON.
A testator di- THOMAS ROBERTS by his will directed his exerects the pro.
cutors, within six months after his decease, to sell duce of his real estate to his freehold estate at London Colney, and out of the be invested by his executors money ansing "o
money arising from such sale to pay the legacies therein in their own mentioned. The testator then proceeded in these names in 4 per
So words :- I will, that after deducting the several aboveHe then die mentioned sums, and my debts and funeral expenses, rects them to transfer the from the produce of the said sale, they buy the re4 per cent.
mainder or balance into the 4 per cent. consols in
moinder consols and 3 per cent. their own names, but for the uses and trusts hereafter to consols, then
be named. And I also desire they will at the same time, name, to the or sooner if more convenient to themselves, transfer the said account in their own several 4 per cent. consols and 3 per cent. consols, now names, and standing in my
standing in my name, as of Milbank Street Westminster, afterwards disposes of " the to the said account in their own names, and for the said 4 per
uses and trusts thereby intended; that is to say, that stock.”. This they do within fourteen days after receiving the halfdisposition,
rthe'spea yearly dividends at the Bank, pay one half thereof to cial provisions my sister Ann Jaques, for her own use, benefit, and of the will, includes the advantage, and not subject to the debts or engagements, 3 per cent... or liable to the control of her present or any future were standing husband, and her receipt only to be a discharge for in his name at he
the same; and to pay the other half of the said divithe will. dends unto my dear wife Elizabeth Roberts, formerly
Elizabeth Jones widow. And at and after the death of my said sister, I direct that the one half of the said 4 per cent. trust stock be sold and disposed of as follows:To Emma Johnson the daughter of one of my executors, or her representative, the sum of 6001. of lawful money, to Anna Scott the daughter of my other executor, the
the making of
sum of 4001., and the remainder to be disposed of agreeably to the will of my said sister. And on the death of my dear wife, her half of the stock to be disposed of as follows :— 1001. thereof to be transferred to the use of her nephew Charles Jaffrey, wire-worker; 500l. thereof to be transferred to the use of her niece Sophia Watson, and 2001. to be transferred to the use of her nephew George Jaffrey, and whatever surplus there may remain to be disposed of as she may please to will the same. And, lastly, I give and bequeath unto my dear wife aforesaid all my plate, linen, china, household furniture, books, horses, cows, and all other effects of what kind or nature soever not before disposed of, and for her own use, benefit, and advantage, and to dispose of the same as she thinks proper, without molestation or interruption."
On the death of the testator, a bill was filed to have his estate administered according to the trusts of the will. The will was not duly executed so as to operate upon his real estates, which therefore descended upon his sister Ann Jaques, as his heiress at law. Under an order made in the progress of the suit, two sums of stock, one of 33 per cent. consols into which the testator's 4 per cent. consols had been converted by act of parliament, and the other, being his 3 per cent. consols, were transferred by his executors into Court: and at the hearing of the cause it was declared that the testator's sister Ann Jaques, and the husband of his widow Elizabeth (who had subsequently married a person of the name of Grey), were entitled to the dividends of both the sums of stock in equal moieties during the respective lives of the legatees; and on the death of either, liberty was reserved to any person interested to apply.
Ann Jaques died in April 1833, having previously appointed all her personal estate which under her brother's will she had power to dispose of, unto her husband John Jaques. On the death of Ann Jaques a petition was presented by the husband and personal representative of Elizabeth Grey, formerly Elizabeth Roberts (now also deceased), praying that the moiety of the 3 per cent. consols, the dividends whereof had been received by Ann Jaques during her life, might be declared not to have passed under her will, but to have vested in the petitioner in right of his late wife Elizabeth, as the residuary legatee of her former husband Thomas Roberts. A cross petition was at the same time presented by John Jaques, claiming the stock in question by virtue of the appointment in his wife's will.
The single question raised on the two petitions was, whether under the bequest over, in the will of Thomas Roberts, of “the one half of the said 4 per cent. trust stock,” his 3 per cent. consols were to be considered as included ?
The argument on both sides consisted entirely of verbal criticism on the peculiar form and language of the different clauses in the will, and an examination of the general scope and purpose of its provisions.
Mr. Pemberton and Mr. Jacob, for the representative of Elizabeth Grey.
Mr. James Russell, for John Jaques.
The Master of the Rolls.
In collecting the intention of the testator upon this point, the will is to be considered as if it were duly exe
cuted, so as to pass real estate. The testator first directs the residue of the produce of the sale of his leasehold estate to be invested by his executors in the 4 per cent. consols in their own names, but for the uses and trusts thereafter to be named. He then directs his executors to transfer the several 4 per cent. consols and 3 per cent. consols then standing in his name to the said account in their own names, and for the uses and trusts thereby intended.
The question is, what the testator means “by the said account in their own names and for the uses and trusts thereby intended ?” Does he or not mean that the 3 per cents. are to be converted into 4 per cents., so as in that sense to form but one account, to be applied to the uses and intents expressed ?
In the first place he directs the trustees to pay one half of the half-yearly dividends to his sister and the other half to his wife. It is plain he means the dividends of the whole trust fund constituted by the produce of his freehold estate and the transfer of the 4. per cents. and 3 per cents. It is a circumstance to be remarked, though but a slight one, that he speaks of the dividends as one half-yearly payment, although, if the trust fund consisted of 4 per cents, and 3 per cents., the dividends of which are payable at different times, that would be two half-yearly payments. Then after the death of his sister he directs that one half of the said 4 per cent. trust stock shall be sold, and he says nothing of the 3 per cent. stock. Is it not to be intended that he means the half of that trust stock, the dividends of which were to be paid by the trustees to his sister during her life, and which he thus describes as “ the said 4 per cent. stock?” On the death of his wife he directs the other F 2