Gambar halaman
PDF
ePub

different

gage are devised to different persons, the devisees must devised to contribute rateably to pay the mortgage according to the persons. value of the portions devised to them. In re Newmarch; Newmarch v. Storr, 9 Ch. D. 12.

The same rule applies if the mortgage comprises real Realty and personalty and personal property. The devisees of the land and the mortgaged legatees of the personalty contribute rateably. Trestrail together. v. Mason, 7 Ch. D. 655.

Where several properties are mortgaged contempo- Collateral mortgage. raneously by different deeds, the fact that one of the mortgages is called a collateral security will not throw the mortgage debt primarily on the property comprised in the other mortgage. Early v. Early, 16 Ch. D. 214; In re Athill, 16 Ch. D. 211.

mortgages.

Where a testator mortgages certain land and then Successive mortgages other land for the same debt and further advances, the whole amount due will, as between the devisees of the different lands, be treated as one debt, and must be borne rateably by the various properties unless it is shown that the land first charged was intended to be the primary security for the amount advanced prior to the second mortgage. Leonino v. Leonino, 10 Ch. D. 460, where the cases of Lipscomb v. Lipscomb, 7 Eq. 501, and De Rochefort v. Dawes, 12 Eq. 540, are discussed; and see Stringer v. Harper, 26 B. 33; Evans v. Wyatt, 31 B. 217.

Where a portion of lands subject to a charge is conveyed by a voluntary deed, containing only a covenant for further assurance, and the rest is devised, the lands conveyed and devised must bear the charge rateably. Ker v. Ker, I. R. 4 Eq. 15.

VI. RENTS, PROFITS, AND INCOME.

1. A present devise of lands being specific carries the Devisee is rents and profits from the death of the testator.

entitled to rents from

the testator's death.

Specific bequest.

What are profits.

Bonus on shares.

Partner

ship profits.

Debts.

ment Act.

But a devise of all the testator's interest in an estate when recovered will not carry rents accrued due prior to his death. Scott v. Best, 6 L. R. Ir. 7.

Where the devise is of rents due prior to the testator's death, derived from property of which the testator is tenant for life, interest upon charges must be deducted, unless the charges are vested in the testator. Lindsay v. Earl

of Wicklow, I. R. 6 Eq. 72.

2. A specific bequest, if vested, carries all the income and profits which may accrue upon it after the testator's death. Clive v. Clive, Kay, 600; Maclaren v. Stainton, 3 D. F. & J. 202; and see Carron Company v. Hunter, L. R. 1 H. L. Sc. 362.

The question sometimes arises what are profits accruing after the death of the testator.

A bonus or dividend on shares declared before the testator's death, but not payable till afterwards, will not pass with the shares. Lock v. Venables, 27 B. 598; De Gendre v. Kent, L. R. 4 Eq. 283.

Nor will the profits of a partnership, declared after the testator's death, for a period ending in his lifetime. Ibbotson v. Elam, L. R. 1 Eq. 188; Browne v. Collins, 12 Eq. 586.

On the other hand, a debt is to be considered as the profits of the year in which it is paid. Maclaren v. Stainton, 3 D. F. & J. 202.

Apportion- 3. Since the Apportionment Act, 33 & 34 Vict. c. 35, rents, annuities, dividends and other periodical payments in the nature of income are to be considered as accruing from day to day, and are apportionable where the testator dies between two rent days.

The 5th section defines dividends as including all payments made by the name of dividend, bonus, or otherwise out of the revenue of trading or other public companies, whether such payments shall be usually made or declared

at any fixed times or otherwise; but they do not include payments in the nature of a return or reimbursement of capital.

before Act.

The Act has been held to apply to a will executed before Will and confirmed by a codicil executed after the passing of the Act. Hasluck v. Pedley, 19 Eq. 271; Constable v. Constable, 48 L. J. Ch. 621; see Roseingrave v. Burke, I. R. 7 Eq. 187.

It has even been held to apply to the will of a testator dying before the Act came into operation. In re Cline's Estate, 18 Eq. 213; Patching v. Barnett, 28 W. R. 886; see Jones v. Ogle, 8 Ch. 192.

The Act applies to specific as well as to residuary devises. Capron v. Capron, 17 Eq. 288; Pollock v. Pollock, 18 Eq. 329, overruling Whitehead v. Whitehead, 16 Eq. 528; see A.-G. v. Daly, I. R. 8 Eq. 595.

private

The profits of a private trading partnership, or of a Profits of business belonging to the testator, are not apportionable partnerunder the Act. Jones v. Ogle, 8 Ch. 192; In re Cox's ship. Trusts, 9 Ch. D. 159.

A public company within the meaning of the Act need What is a public not necessarily be an incorporated company. See In re Griffith; Carr v. Griffith, 12 Ch. D. 655.

A bonus or surplus profits distributed among the shareholders of a public company once in five years is apportionable under the Act. In re Griffith, supra.

In determining what is corpus and what interest the Apportionment Acts apply as well between tenant for life and remainderman as where in certain events an absolute interest is cut down to a life interest. Clive v. Clive, 7 Ch. 433.

company.

devise does not carry

4. A future devise of lands, whether the fee is vested Future in trustees or is in abeyance, does not carry the intermediate rents and profits, which pass either residuary clause, if there is one, or to the heir.

under the the inter

mediate

Hopkins rents.

Contingent

specific

v. Hopkins, Ca. t. Talb. 45; Duffield v. Duffield, 3 Bl. N.
S. 260; Percival v. Percival, 9 Eq. 386; In re Eddel's
Trust, 11 Eq. 559; see, however, Best v. Donmall, 40 L. J.
Ch. 160.

The intermediate rents are undisposed of till the actual birth of the devisee. Richards v. Richards, Jo. 754; Mowlem's Trust, 18 Eq. 9; see Rawlins v. Rawlins, 2 Cox, 425; Goodale v. Gawthorne, 2 W. R. 680; 2 Sm. & G. 375.

5. A contingent specific bequest of chattels real or personalty will not carry the intermediate profits except bequests. perhaps in the case of a person who would be entitled to interest on a general legacy from the testator's death. See post, p. 138, et seq.; Holmes v. Prescott, 12 W. R. 636; see Wright v. Warren, 4 De G. & S. 367.

Future residuary devise.

A future residuary bequest

carries the intermediate interest.

So will a future

6. A future residuary devise, or a devise subject to prior limitations which may or may not take effect, will not carry intermediate rents and profits. Hodgson v. Earl of Bective, 1 H. & M. 376; 12 W. R. 625; 10 H. L. 656; Wade Gery v. Handley, 1 Ch. D. 653; 3 Ch. D. 374; overruling Sidney v. Wilmer, 4 D. J. & S. 84.

7. A contingent residuary gift of personalty carries the intermediate interest during the period allowed for accumulation. Green v. Ekins, 2 Atk. 473; Drakeley's Estate, 19 B. 395; Earl of Bective v. Hodgson, 12 W. R. 625; 10 H. L. 656.

The case of Green v. Tribe, 27 W. R. 39, appears to be inconsistent with Earl of Bective v. Hodgson, unless it can be supported on the ground that the income of residuary personalty bequeathed to a class is undisposed of until a member of the class comes into being.

Chattels real comprised in a residuary gift follow the same rule as personalty proper. Hodgson v. Earl of Bective, 1 H. & M. 376; 10 H. L. 656.

8. If realty and personalty are blended in a future

residuary gift of a

residuary gift, intermediate profits will pass. Genery Fitzgerald, Jac. 468; Glanvill v. Glanvill, 2 Mer. 38; mixed Ackers v. Phipps, 9 Bl. N. S. 431; 3 Cl. & F. 665.

9. Personalty to be laid out in land, or realty to be converted, follow the rules of personalty and realty respectively. Bective v. Hodgson, 10 H. L. 656.

fund.

there is a

income

When there is a gift to a class, which is capable of in- When crease up to the time of distribution, the whole of the gift to a income for the time being goes to those members who take class the vested interests from time to time. Shepherd v. Ingram, goes to Amb. 448; Mills v. Norris, 5 Ves. 335; Scott v. Earl of take Scarborough, 1 B. 154; Mainwaring v. Beevor, 8 Ha. 44; interests Furneaux v. Rucker, W. N. 1879, 135.

VII. INTEREST ON GENERAL LEGACIES.

those who

vested

from time to time.

Where a legacy is contingent or payable at a future Interest given to a time, and interest is given in the meantime or the income legatee is given for maintenance, the whole interest or income as vests absolutely as it it accrues vests absolutely in the legatee. Harris v. Finch, accrues. M'Clel. 141; In re Peek's Trust, 16 Eq. 221.

charged on

Where a legacy is charged upon land only, interest is Legacy payable from the testator's death. Spurway v. Glyn, 9 land only, Ves. 483; Shirt v. Westby, 16 Ves. 393; Pearson v. Pearson, terest from 1 Sch. & Lef. 10.

carries in

the death.

charged on

On the other hand, a legacy charged upon the proceeds Not if of the sale of lands follows the ordinary rules applicable proceeds of to general legacies with regard to interest. Turner v. Buck, 18 Eq. 301.

General legacies, including gifts by appointment under a power vested in a married woman, are payable at the end of a year from the testator's death. Tatham v. Drummond, 2 H. & M. 262.

sale of

[ocr errors]

time in

A. Therefore, where no time for payment is fixed, in- From what terest runs from the end of a year from the testator's death, terest is whether the legacies are payable "as soon as possible," or general payable on

« SebelumnyaLanjutkan »