daughter 1001. a year Long Annuities. "Item, to Dr. S. 501. Long Annuities. Item, to J. B. 50l. Long Annuities." Notwithstanding the plain distinction between the first and last bequest, Lord Thurlow interpreted the two latter to be bequests of annuities of that annual amount.

But in a subsequent case, (a) a testatrix bequeathed" to M. P. the sum of 500l. stock, in Long Annuities. The same to M. H. To Miss I. L. B. the sum of 2001. stock, in Long Annuities, the interest thereof (b) to accumulate until she shall attain twenty-one, and then the whole to be transferred to her by my executor. Also, to Miss H. D. 100%. stock, in Long Annuities, the annuities to accumulate." And the residue to her nephews. The Lord Chancellor at first held these to be specific bequests of annuities, though with reluctance, as it appeared that the testatrix had only 1307. per annum Long Annuities, and no other properties, while the aggregate amount of these annuities would be 1300l. per annum. Yet he considered himself controlled by the terms of the will, and not at liberty to travel out of it. On a rehearing, however, he changed his opinion, and allowed the evidence of the testatrix's property to be read, in order to enable him to construe the will. He is reported to have said that he could let in this evidence, not to control the bequests which she had made in words distinct themselves, nor to control a bequest which she had made of a subject, which she had accurately described, but because the words she had used were upon the whole context uncertain, whether she intended it as the interest of a gross sum to accumulate, or 500l. per annum. The peculiarity of this will furnished sufficient doubt to warrant the admission of collateral evidence to explain it. When that evidence was read, there could be little doubt of the intention, and he decreed the bequest to be gross sums, and not annuities.

(a) Fonnereau v. Poyntz, 1 B. C. C. 472,

(b) See the observations of the Vice Chancellor on the use of these words in this case, 3 Sim. 572.

.CHAP. I.

THE

DEFINITIONS.

CHAP. I.

THE DEFINITIONS.

But in Oldham v. Carleton (a) a testator gave the interest of the 4 per cent. Bank Annuities then standing in his name, and other monies, to be invested in the same stock, to his wife; and as to the rest and residue of his estate, after payment of the said bequest to his wife, he gave it as follows: 1st. to the children of A. 60%. of the 4 per cent. Consolidated Bank Annuities, also to the eldest of such children, 30l. per annum for life, and to his lawful heir, payable out of the interest of the said funded property. He made a similar bequest in favour of B.'s children, and declared his intention that if the residue of his said property after payment of the children of B. was not sufficient to pay the specific annuities of 30%., the residue should be equally divided as above specified. The money in the banker's hands was invested, and the whole sum amounted to 5300l. The Master of the Rolls held that this was only a bequest of 60%. stock, and not of annuities to that extent, for whatever might have been the intention of the testator, the language was clear.

Another case (b) has occurred where the ultimate decision was conformable with that in Oldham v. Carleton. A testatrix gave to the minister of A. 31. per annum Bank Long Annuities, to the minister of B. 57. per annum like Bank Annuities, to the treasurers of C. and D. 1007. Long Annuities stock each; to the governors of E. 1007. Long Annuities stock; 307. per annum further part of my Bank Long Annuities, in trust to receive and apply the dividends and yearly proceeds thereof to the use of L. D. till she attained twenty-one, then to transfer the said 30%. per annum Bank Long Annuities to her own use. She then gave 1501. Bank Long Annuities stock to Mr. C., and 10l. per annum further part of her Bank Long Annuities to pay the dividends thereof to Mrs. G. By a codicil she stated, that as she might have made a wrong calculation of the value of her fortune in the funds, at the uncertain price they might be at her decease, she desired out of her personal estate. (a) 2 Cox's Cases, 399.

any deficiency to be made up She died possessed of 3857.

(b) A. G. v. Grote, 3 Mer. 316.

Long Annuities only, and her personal estate was insufficient to pay her debts. It was held by the Master of the Rolls, that the will was not so ambiguous as to raise a belief that she meant to give a portion of stock equal in value to the sums mentioned; but he decided that specific bequests of annuities had been given. He referred to Stafford v. Horton, and distinguished Fonnereau v. Poyntz, because of the great disproportion between the property and the bequest there, which was not the case in the present instance. (a) The annual amount of the bequest was in this case 5007., which was 1157. less than the actual property, besides which, it will be observed, that there was a bequest of the residue in the former, but not in the latter.

This subject has since been discussed before Sir T. Plumer, Master of the Rolls, (b) and the authorities were examined at great length. He there supported the decision of Fonnereau v. Poyntz, and as the bequests were ambiguous on the face of the will, admitted evidence to prove the value of the testator's property, and thereupon decreed them to be bequests of the specific sums, not of annuities. While, on the other hand, in a very late case, where a testatrix bequeathed to A. B. and C. D. " 50%. each of Bank Long Annuities stock now standing in my name,' the Vice-Chancellor, Sir L. Shadwell, held, that each of the legatees was entitled to a specific legacy of 50%. Long Annuities, and refused to admit the evidence of the state of the testatrix's assets. (c)

So a bequest of an annuity of 2007. to A. for the use of her and her children, to be paid out of the general effects of the testator, until it should be convenient to the executors to invest 5000/. in the funds in lieu thereof for her and their use, and to the longest liver of her and her children, subject to an equal division of the interest, while

(a) This judgment was however reversed, on an appeal, by Lord Eldon. 3 Sim. 569, n.

(b) Colpoys v. Colpoys, Jac. 450. (c) Boys v. Williams, 3 Sim. 563.

CHAP. I.

THE DEFINITIONS.

CHAP. I.

THE

DEFINITIONS.

Again, where a sum is to be laid

out in the pur

chase of an an

nuity, and it is uncertain whe

more than one was alive, was held by the Master of the Rolls and the Lord Chancellor, on appeal, to be the legacy of an annuity only, and not of the gross sum. (a)

It was holden, in Lord Coke's time, that a grant of 101. to N. M., issuing and payable quarterly at the four most usual feasts, out of certain lands, with a power of distress, was a grant of a rent to N. M. for his life. (b)

There is another class of cases in which a similar ambiguity has arisen, and it is, where a certain sum of money is directed to be laid out in the purchase of an annuity, and it is doubted whether the sum mentioned is to be the value of the annuity or the annual payment. This is also a the annuity, or subject of construction dependent upon the intention of the party. The following cases may afford some advantage in elucidating analogous discussions.

ther that is to

be the value of

the annual

amount.

In Bayley v. Bishop (c) a testator directed trustees to lay out a sum of money upon government or other securities in the purchase of an annuity for the life of his son, and that they should permit him to receive the same during the term of his life. This was held to be a direction to purchase an annuity of that value; and not merely a bequest of the dividends that would arise therefrom; since the testator, in several other dispositions of stock, provided for the capital and dividends.

In Rawlings v. Jennings (d) there was a bequest to the testator's wife of " 2001. per year, being part of the monies I now have in bank security, entirely for her own use and disposal;" and in other parts of the will interests for life were expressly given. The Master of the Rolls, Sir William Grant, held her to be entitled to as much capital stock as would produce 2001. a year, relying much upon the words "her own use and disposal," and also upon the mode of the other bequests.

In Smith v. King (e) it was declared by a marriage settlement that a trustee was to lay out a sum of money which

(a) Innes v. Mitchell, 6 Ves. 464; 9 Ves. 212.

(b) Sir R. Pexhall's case, 8 Co. 83. b.

(c) 9 Ves. 6.

(d) 13 Ves. 39.

(c) 1 Russ. 363.

the husband had agreed to settle, in the purchase of any public stock, or funds, or annuities, for the life of his intended wife, in trust for her, and that he was to pay to her during her life, the dividends or other produce of the stock or annuity so to be purchased to her separate use during her life. It was held by the Court that the wife was entitled absolutely to a sum of 3 per cent. stock purchased with the money, and not to a life-interest only, there being no limitation over of the fund after her death.

And in Borrett v. Deady (a) a testator directed his executors to convert his property and invest it in stock, and thereout to pay an annuity of 250l. to his widow for her life, and after her death gave the principal sum that produced that annuity over. The property was not sold and invested till after her death. The Vice-Chancellor held that the legatees were entitled to as much stock as would produce 2501. a year in dividends, and not merely to a principal sum of 50001.

In all these cases of ambiguous grants, it seems impossible to state any precise rules to guide the interpretation. Every case depends upon its own circumstances, from which the intention must be deduced; though some assistance may perhaps be attained from the consideration of the above instances, wherever applicable.

CHAP. I.

THE DEFINITIONS.

of

Annuities.

Such being the nature of annuities, their properties may II. Properties be properly examined in the next place. These, so far as they are peculiar to these contracts, range themselves into two classes, according to the real or personal nature of the security as above pointed out. The distinction which prevails between these two kinds of security has produced a corresponding distinction in the properties of annuities and rents.

Annuities,

First, as to annuities specifically so termed. As the 1st. Of Personal security is personal, they can only be treated as a species of personalty. Hence, if an annuity continue after the decease of the grantee, it may be bequeathed by testament, and where not specifically bequeathed, will pass to the (a) 3 Madd. 449.