in grant. (a) 1 Pres. Shep. T. 94, 213, 228, n. (1); Co. Litt. 332 a, 334 b. PART I TIT. 2, CH. 1. Tithes. CHAPTER II. OF CERTAIN KINDS OF INCORPOREAL HEREDITAMENTS. SECTION I. Of Annuities. PART I. T. 2, AN annuity, in the widest sense of the term, is a right to CH. 2, s. 1. An annuity defined and distinguished from a charge. Ways of creating a yearly sum not payable as interest, and chargeable both upon real and personal estate, or either upon real or personal estate of the grantor or testator who created the annuity, or upon his person only (a). But an annuity specifically so called, as distinguished from a rent charge, is a right to a yearly sum not payable as interest, and chargeable only upon the person or personal estate of the grantor or testator by whom it is created; as, if a grant is made of the sum of 20l. a year, without expressing out of what it shall issue, no land at all shall be charged with it, but it is a mere personal annuity (b). And a rent charge, as distinguished from an annuity, is a right to a yearly sum not payable as interest, and chargeable only on the real estate of the grantor or testator. If the person or the personal estate, as well as the real estate, is made liable, as both most commonly are, then the annual payment is frequently, if not generally, called an annuity, and is personal estate. In such a case the grantee must elect between his remedies (c). 15. There are several ways of giving annuities by will. Thus, (a) See 2 Bl. Com. 40, 41; 2 Jarm. & Byth. by Sweet, 1, 2, 3, 5. (b) 2 Bl. Com. 40; 2 Jarm. & Byth. by Sweet, 1; Co. Litt. 144 b. (c) 2 Jarm. & Byth, by Sweet, 2, 3; Co. Litt. 219, 144 b; Parsons v. Parsons, L. R. 8 Eq. 260. CH. 2, s. 1. annuities by one way is to give an annuity generally, or out of the PART 1. T. 2 general personal estate. A second way is to direct a certain sum to be appropriated and set apart, and the will. income thereof paid to the annuitant; or a sufficient sum to be appropriated and set apart to pay an annuity of a certain amount; and to direct that after the death of the annuitant, or subject to the payment of such annuity, such sum shall form part of the testator's residuary personal estate. In neither of these ways is any money sunk in providing for the annuity; the fund which produces the annuity remains after the annuity has ceased by the death of the annuitant or otherwise. But there are two ways of giving an annuity by sinking money in the purchase thereof. The first is, to give a definite sum of money to trustees, with a direction to them to lay it out in the purchase of an annuity. The second is, to direct trustees or executors to lay out so much money as will suffice to purchase an annuity of a certain amount. In the one case, the sum given determines the amount of the annuity. In the other, the annuity specified determines the amount of the sum to be expended. 16. ment. In the absence of any indication to the contrary, annuities Commencecreated by will, commence from the death of the testator, and the first payment becomes due at the end of a year from that event (a). 17. interests a annuity limited, A personal annuity, that is, an annuity not charged on For what lands, but only secured by grant, bond, or covenant, or personal bequeathed by will, may be limited to a person and his heirs may be in fee simple, or as a fee conditional, or to a person and his heirs pur autre vie (b), or to a person for his own life or for a term of years. Such an annuity in fee is a personal inheritance, which passes under a general bequest of the personal estate of the annuitant (c). 18. (a) 2 Rop. Leg. by White, 1245; 11 Jarm. & Byth. by Sweet, 470. (b) 2 Jarm. & Byth. by Sweet, 13. PART I. T. 2, In the ordinary acceptation of the term, an annuity imDuration of ports an annual sum for the life of the donee only (a); and annuity, given where it is hence, if an annuity is given indefinitely, it is an annuity indefinitely. for his life only (b). But in connection with this rule, there are some important distinctions : Distinctions connected with this point. : 1st. We must be careful to distinguish from the gift of an annuity, the gift of the income of a fund. The gift of the income of a fund, whether particular or residuary, whether consisting of money, or of stock, or of any other personalty, without limit as to time, and without any disposition of the corpus, is a gift of the fund itself, although without words of limitation to the executors or administrators, and without the words "for ever," or any equivalent expressions; because there would be nobody who could ever claim the capital, if it were not held to belong to the person to whom the income of the fund is so given (c). 19. 2ndly. There are cases in which, although an annuity is given without words of limitation, yet it is not given indefinitely, but there are expressions in the will which serve to show the testator's intention that the annuity should have a perpetual existence (d). 20. 3rdly. If a testator dedicates the corpus of his property, or a portion of the corpus of his property, to the purpose of purchasing or providing an annuity of a certain amount, without indicating that such annuity is to be of less (a) See remarks of Lord Cottenham, C., Blewitt v. Roberts, Cr. & Ph. 280; Blight v. Hartnoll, L. R. 19 Ch. D. 294; 23 Ch. D. (Ap.) 218. (b) Yates v. Maddan, 3 Mac. & G. 543, and cases there cited; Kerr v. The Middlesex Hospital, 2 D. M. & G. 583; Lett v. Randall, 3 Sm. & G. 83; 2 D. F. & J. 388; V.-C. Wood, in Hill v. Rattey, 2 Johns. & Hem. 639. (c) Philips v. Chamberlaine, 4 Ves. 50, 58; Stretch v. Watkins, 1 Mad. 253; Clough v. Wynne, 2 Mad. 188, 190; Rawlingsv.Jennings. 13 Ves. 39; Bignold v. Giles, 4 Drewry, 343. (d) Robinson v. Hunt, 4 Beav. 450; Pawson v. Pawson, 19 Beav. 146; Timins v. Stackhouse, 27 Bear. 434. CH. 2, s. 1. duration, the annuitant will be entitled to a perpetual PART I. T. 2, annuity (a). 21. 4thly. Where a testator, after giving an annuity to a person for life, proceeds to limit it over to another person indefinitely, and, in the words in which it is limited over or some other words in the will, the annuity is spoken of as if, without reference to the benefit of such other person, it would have an existence beyond the life of the prior taker; there the second taker has a perpetual annuity (b). 22. 5thly. Where a testator, after giving an annual sum to certain persons for their lives, proceeds to limit it over, after their decease to their children, and directs that in case any of such persons, the prior takers, should die without issue, then the annuity shall cease, and sink into the residue of the estate, and there is no provision that the several shares of the annuities which the children were to take, if there were children, shall fall into the residue on their death, whether with or without issue, there the children take perpetual annuities (c). 23. price or annuity the annual When an annuity is directed by will to be purchased, Right to the without reference to any contingency, the annuitant takes value of an an immediate vested interest in the price or value of it; instead of so that he may elect to take the price or value, instead of payment. the annual payment; and so that his personal representatives will be entitled to it, though he happens to die immediately after the testator, and though the annuity is not to be purchased until some time subsequent to the (a) Kerr v. The Middlesex Hospital, 2 D. M. & G. 576, 583, 584, 587; Stokes v. Heron, 2 Dru. & W. 89; 12 Cl. & Fin. 161; with which compare Wilson v. Maddison, 2 Y. & C. C. C. 370; Re Grove's Trusts, 1 Gif. 74; Hill v. Rattey, 2 Johns. & Hem. 634: Hicks v. Ross, L. R. 14 Eq. 141. (b) See remarks of Lord Cottenham, in Stokes v. Heron, 12 Cl. & Fin. 161, and of Lord Truro in (c) Hedges v. Harpur, 3 D. & J. |