*enforced, if she desires it, but not otherwise; she may abandon it, in which case her children can claim nothing, and if she claims it for herself, the Court requires the benefit to be extended to her children her equity and the equity of the children are treated as one equity, to be enforced or not at her option. If the equity were to be considered as attached to the property on the filing of the bill, it must, I apprehend, be considered for the benefit of her children at the same time, but if so, she could not afterwards waive it for herself, because her equity and theirs are one; and as it is admitted that she can waive it after the institution of the suit, it seems to me to follow, that it is not an equity, which, upon the filing of the bill, attaches upon property for the benefit of the children.

It is true, that after the filing of the bill, the discretion which the trustee or executor had to pay the wife's legacy to the husband is greatly altered. The filing of the bill has, it has been said, made the Court the trustee, and if the wife be living, the Court will not pay the wife's legacy to the husband if she desires a settlement, or unless she waives it; but when death has made any option on her part impossible, when nothing has occurred from which it can be concluded that she has made an option, there seems to be no reason why the legal right of the husband should not prevail, and I am therefore of opinion, notwithstanding the case of Steinmetz v. Halthin, that in this case the wife's equity did not attach to the property for the benefit of the children on the institution of the suit, or before her death, but that upon her death before decree, and before any arrangement for a settlement, her legal personal representative became entitled to the legacy.

DE LA GARDE

V.

LEMPRIERE.

[ *347 ]

JORDAN v. LOWE.

(6 Beay. 350-351.)

Under a devise of leaseholds on trust for A. for life, and afterwards to his issue male severally and respectively, according to their seniorities, and in default to his heirs, according to their seniorities, and in default over: Held, that A. took an absolute interest.

THE testator, being possessed of a leasehold estate renewable every seven years, devised it to trustees, upon trusts which he declared as follows: "I direct my said trustees to remain and continue seised and possessed thereof, and to pay the rents and profits thereof to or to the use of, or to permit and suffer my

1843. June 23.

Rolls Court.

Lord LANGDALE,

M.R.

[350]

JORDAN v.

LOWE,

[ *351]

cousin Robert Jordan, son of my uncle Jonathan, to hold and enjoy, or to receive and take the rents, issues, and profits thereof, to his own use and benefit, during the term of his natural life; and from and immediately after the decease of the said Robert Jordan, then I direct my said trustees to pay the rents and profits thereof to his issue male lawfully begotten, severally and respectively according to their respective seniorities; and for default of such issue male as aforesaid, I devise the same to the use of the eldest and all other the daughters and daughter of my said uncle Jonathan, according to their respective seniorities; and in default of such issue of my said uncle Jonathan, then I devise the same to the eldest daughter of my said cousin Robert for all my estate and interest therein. And I direct the said leasehold estate shall be, from time to time, renewed by and in the names and name of my said trustees."

The question was what interest Robert Jordan took in this leasehold.

Mr. Malins, for Robert Jordan, the plaintiff, contended he took the leasehold absolutely.

Mr. Bird, for Thomas Jordan, the eldest son of the plaintiff, and

Mr. Borton, for the younger children, contended that the plaintiff took a life interest only.

Mr. Heathfield, for the trustees of the will.

Mr. Malins, in reply.

The following authorities were relied on: Jones v. Morgan (1), Knight v. Ellis (2), Lyon v. Mitchell (3), Stonor v. Curwen (4).

The MASTER OF THE ROLLS was of opinion that the plaintiff took a quasi estate tail, and said he must make a decree in favour of the plaintiff, according to the prayer of the bill.

(1) 1 Br. C. C. 206.
(2) 2 Br. C. C. 570.

(3) 16 R. R. 248 (1 Madd. 467).
(4) 35 R. R. 156 (5 Sim. 264).

ADNAM v. COLE.

(6 Beav. 353-357.)

1843.

June 26,

Lord LANGDALE, M.R.

A testator bequeathed his residuary estate to his executors on trust to Rolls Court. pay the income to his widow for her life, subject to the payment thereout of an annuity of 10l. to A. for his life. After the decease of his widow, a disposition was made of the property, and amongst other gifts there was one of the dividends of 1,000l. stock to A. for life: Held, that the annuity to A. ceased upon the death of the widow, and that A. then took the dividends on the 1,000/. in substitution.

A bequest was made of chattels real to trustees to erect such monument as they should think fit, and build an organ gallery. The first object was valid, the second invalid under the Statute of Mortmain: Held, that the trustees were wrong in applying the whole to the first object, and an inquiry was directed to apportion the gift.

THE testator being seised of a freehold cottage at Long Parish, and being possessed of a leasehold at Vale Place, devised and bequeathed the residue of his real and personal estate to his executors, upon trusts which were expressed as follows: "Upon trust to pay and apply the rents, use, enjoyments, and profits thereof to my wife Frances Adnam, for and during the term of her natural life, subject nevertheless to the payment thereout to Charles Adnam of 10l. a year during his life, and after his decease, 10l. a year to Elizabeth, his wife, if she survive him, during her life;" and from and after the decease of my said wife, upon trust to sell my messuage, &c. at Vale Place aforesaid, "as soon as conveniently may be after the decease of my said wife, and the monies arising therefrom to sink into and become part of the residue of my personal estate; and from and after the decease of my said wife, I give my cottage and garden at Long Parish aforesaid, with the appurtenances thereunto belonging, unto the said John Thompson, his heirs, &c., subject and charged with the yearly payment thereout of 31. to be applied as hereinafter mentioned; and upon further trust, after the decease of *my said wife, to pay and apply the interest and dividends of 1,000l. stock in the 3 per cent. Reduced Bank Annuities unto the said Charles Adnam during his natural life, and from and after his decease, to pay the like interest and dividends to his wife, the said Elizabeth Adnam, if she shall survive him; and from and after the decease of the survivor of them, upon trust to pay and divide the said principal sum of 1,000l. stock, unto and amongst all and every of the children of the said Charles Adnam and Elizabeth his wife equally." He then bequeathed certain legacies after the decease of his wife, and proceeded as follows: "And as to all the residue

[353]

[ *354 ]

of the said trust monies, it is my will and desire, and I do hereby direct my said trustees, &c., to lay out the same for the purpose of erecting such a monument to my memory, as my trustees shall think fit, and for building a neat, substantial Gothic organ gallery, over the north door, within the parish church of Long Parish aforesaid, and for purchasing and putting up an organ within the said gallery, which gallery and organ are to be erected and placed, with the consent of the vicar and churchwardens, under the directions of my said trustees or trustee for the time being."

There were two questions, the first, whether the annuity of 107. a year to Charles Adnam ceased upon the death of the testator's wife; and the second question related to the monument and organ gallery, with regard to which the bill alleged that the gift was void, and with respect to which the following circumstances took place.

The defendants, the executors, said, "they were advised by counsel, that the executors of the testator were authorised, by the will, to apply and expend such part of the testator's residuary personal estate as they, in their discretion, might deem fit, or even the whole thereof, if they should think fit, in the erection of a monument to the testator's memory.

"That they, acting upon such advice, had applied a sum exceeding, as they believe, the whole amount of such residue, in erecting such monument, and in and about the expenses connected therewith."

"That the monument they had so erected to the memory of the testator, and which was called Adnam's Chapel, had cost in the actual erection thereof the sum of 294l. 19s. 3d. or thereabouts."

"That they had not applied any part of such residue, and that there, in fact, remained no part applicable to the building or erection of an organ gallery, or of putting up an organ therein."

Mr. Pemberton Leigh insisted, first, that the 10l. a year was payable to Charles Adnam and wife for life, even after the death of the widow.

Secondly, that the trustees had not exercised a due discretion in laying out the whole residue in the monument, and he insisted that there ought to be an inquiry to ascertain what proportion ought

to have been laid out on the organ and organ gallery, which amount, so far as it was connected with realty, would belong to the representatives of the testator, in consequence of the gift of realty for such a purpose contravening the Statute of Mortmain.

Mr. Lloyd, contrà:

The annuity ceased on the death of the widow, because it was given out of a subject which was only to endure during that period. This construction is corroborated by the subsequent parts of the *will, which disposes, in another way, of the whole subject out of which the annuity of 10l. was to be paid, and gives to the annuitants the dividends on 1,000l. as a substitute.

The gift of realty for the purpose of erecting a monument is not within the Statute of Mortmain: Mellick v. The President, &c. of the Asylum (1). The trustees were empowered to erect such a monument "as they should think fit." They therefore had a discretion, and were justified in laying out any part of the residue they thought fit in erecting a monument. In Cooke v. Farrand (2), the widow had the power to will any part or proportion of the residue, and it was held that she might dispose of the whole. Talbot v. Tipper (3), a party had the power of leasing at such rent "as he should think fit: "it was held that he might make a lease without reserving any rent.

Mr. Pemberton Leigh, in reply:

In

If this were a residuary gift to be divided between three persons as the executors thought fit, a distribution excluding one could not stand. We have a right to have a due and proper part apportioned to the second of two purposes, namely, the building the organ gallery, &c., and if there be any difficulty, the Master must settle the proportions.

As to the annuity, the gift to Charles Adnam is distinctly for his life. The payment is not to be made out of the life estate of the widow, but out of the estate of the trustees. I admit, that if the gift had been to A. for life, she paying thereout an annuity to B. for his life, it must have ceased on the death of A.; but here the duration of the estate of the trustees is quite sufficient to pay the annuity during the life of the annuitant.