Costabadie v. Costabadie, 6 Ha. 410; Godfrey v. Godfrey, 11 W. R. 554; or to be applied for herself and her children: Bibby v. Thompson, 32 B. 646; or to be used for the benefit of herself and her children, at the discretion of the donee: Hart v. Tribe, 32 B. 279; 1 D. J. & S. 418; Godfrey v. Godfrey, 11 W. R. 554; Newill v. Newill, 7 Ch. 253; Armstrong v. Armstrong, 7 Eq. 518; see Scott v. Key, 13 W. R. 1030. And even a life interest given to the testator's wife for the benefit of herself and her children is divisible equally among them. Jubber v. Jubber, 9 Sim. 503; see Taylor v. Bacon, 8 Sim. 100. If, however, the gift is to A. with large powers of disposition or words of benefit added, the fact, that the gift is expressed to be for the benefit of herself and her children, will not raise a trust. Lambe v. Eumes, 10 Eq. 267; 6 Ch. 597; M'Alinden v. M'Alinden, I. R. 11 Eq. 219; In re Hutchinson & Tenant, 8 Ch. D. 540. See Webb v. Wools, 2 Sim. N. S. 267. tion be tween trust and And where there is an absolute gift to A., a subsequent Distincdeclaration that the benefit of A. and her children was the motive of the gift will raise no trust. Thorp v. Owen, 2 Ha. 607. See Mackett v. Mackett, 14 Eq. 49; Briggs v. Sharp, 20 Eq. 317. Similarly a gift to enable a person to do something creates no trust. Benson v. Whittam, 5 Sim. 22; Ryan v. Keogh, I. R. 4 Eq. 357. See Biddles v. Biddles, 16 Sim. 1; quare, whether Byne v. Blackburn, 26 B. 41, can stand on this ground. motive. to be the main Where the interest upon legacies given to children is Gifts to directed to be paid to their parents, and applied by the parent them for their maintenance, the parents take subject to applied for no account. Hammond v. Neame, 1 Sw. 35; Berkeley v. tenance Swinburne, 6 Sim. 613; Hadow v. Hadow, 9 Sim. 438; children. Browne v. Paull, 1 Sim. N. S. 92. of his C C Legacy to a legatee to be applied in a parti cular way for the benefit of the lega tee. to trustees to apply money in a certain In the same way a gift to the parent for the benefit or maintenance of himself and his children may be safely paid to the parent. Cooper v. Thornton, 3 B. C. C. 96, 186; Robinson v. Tickell, 8 Ves. 142; Re Robertson's Trust, 6 W. R. 405. VI. LEGACIES GIVEN TO BENEFIT A LEGATEE IN A 1. A legacy given to a person for a particular purpose for the benefit of the legatee, is good though the purpose fails or becomes incapable of execution. Barton v. Grant, 1 Vern. 255; Nevill v. Nevill, 2 Vern. 431; Barton v. Cooke, 5 Ves. 462; Parsons v. Coke, 6 W. R. 715; Noel v. Jones, 16 Sim. 309; Lockhart v. Hardy, 9 B. 379 ; Leche v. Lord Kilmorey, T. & R. 207; Palmer v. Fowler, 13 Eq. 250. The legacy will not be cut down to the amount actually required for the named purpose, unless the surplus, after satisfying that purpose, is expressly given over. In re Lee's Trusts, I. R. 10 Eq. 157. If a discretion is given to trustees to apply the interest and principal of a fund for the benefit of a legatee, with a gift over of so much as is not applied, and the trustees refuse to exercise their discretion, the whole fund belongs to the legatee. Gude v. Worthington, 3 De G. & Sm. 389; Gough v. Bult, 16 Sim. 45. Discretion 2. On the other hand, where a discretion is given to trustees to apply money to a particular purpose, the Court will inquire whether the occasion for the gift arises. Lewis v. Lewis, 1 Cox, 162; Robinson v. Cleaton, 15 Ves. 526; Cowper v. Mantell, 22 B. 231; Sanderson's Trust, 3 K. & J. 497; Re Ward's Trust, 7 Ch. 727. way for a legatee. Distinc tion where the pur 3. If the purpose for which the money is given is not merely the benefit of the legatee, but also the gratification pose is not of some wish of the testator, the question is, which is the benefit of primary object. Re Skinner's Trust, 1 J. & H. 102. the legatee. merely the CHAPTER XXXII. 387 GIFTS OF ANNUITIES. I. CHARACTERISTICS OF ANNUITIES. and rentcharge dis AN annuity charged upon lands devised in fee is a legal Annuity rent-charge, even though it may be given to a person, his executors and administrators. Ramsay v. Thorngate, tinguished. 16 Sim. 575. And a right to distrain is attached to it by statute 4 Geo. II. c. 28, s. 5. Buttery v. Robinson, 3 Bing. 392; Sollory v. Leaver, 9 Eq. 22; Kelsey v. Kelsey, 17 Eq. 496. receiver. In Sollory v. Leaver it was held, that an annuitant Right to whose annuity had fallen into arrear, was not entitled to a receiver, on the ground that he had a sufficient remedy by distress. A receiver would, however, probably now be appointed in such a case under section 25, sub-section 8, of the Judicature Act, 1873. adminis An annuitant whose annuity is charged upon freeholds Right to and residue is entitled to have the estate administered in ter order to ascertain the residue. Wollaston v. Wollaston, 7 Ch. D. 58. A rent-charge, though charged upon realty and personalty, will be looked upon as issuing out of the realty alone. Butt's Case, 4 Rep. 98, Pt. 7, 23 a; Co. Litt. 147 a; Richardson v. Nixon, 7 Ir. Eq. 620; Sollory v. Leaver, 9 Eq. 22. The rule in Shelley's Case and the other technical The rule in Shel ley's case applies to rent charges. Annuity to A. and his heirs. Annuities are not rules of construction apply to the limitations of a rentcharge. Drew v. Barry, I. R. 7 Eq. 413; 8 ib. 260. A rent-charge is entailable, but if an estate tail is created in a rent-charge, and no remainder in fee is limited, the tenant in tail cannot create more than a base fee. Co. Litt. 298 a, note 2; Chaplin v. Chaplin, 3 P. Wms. 229. An annuity, given out of personal assets, if given with words of inheritance, will devolve like real estate. Such an annuity, however, not being within the Statute within the de donis, cannot be entailed. A devise, therefore, of a Statute de personal annuity to A. and the heirs of his body, gives A. a fee simple conditional. Earl of Stafford v. Buckley, 2 Ves. sen. 170; Turner v. Turner, Amb. 776; 1 B. C. C. 316. donis. Annuity given to a man and his heirs remains But an annuity, though given with words of inheritance, is, for all other purposes except descent, personalty. Earl of Stafford v. Buckley, 2 Ves. sen. 171; Lady personalty Holderness v. Lord Carmarthen, 1 B. C. C. 377; Aubin except for purposes v. Daly, 4 B. & Ald. 59; Radburn v. Jervis, 3 B. 450. of devolution. Direction to lay out sum in of annuity. And an annuity charged upon real and personal estate, but given without words of limitation appropriate to realty, is personal estate. Taylor v. Martindale, 12 Sim. 158; Parsons v. Parsons, 8 Eq. 260. A direction to lay out a specified sum in the purchase of an annuity for the life of A. vests that sum in the annuitant, purchase whether the annuity is in possession or reversion. Yates v. Compton, 2 P. Wms. 308; Barnes v. Rowley, 3 Ves. 305; Bayley v. Bishop, 9 Ves. 6; Palmer v. Craufurd, 3 Sw. 482; see Smith v. King, 1 Russ. 363. Direction to purchase certain So if there is a direction to purchase a Government annuity of annuity of a given amount, the annuitant is entitled to the purchase-money, though he may die before the time when the annuity was to be purchased. Dawson v. Hearn, 1 R. & M. 606; Ford v. Batley, 17 B. 303. amount. Upon the same principle a discretionary trust to purchase an annuity out of a fund, authorises advances to the legatee from time to time out of the capital of the fund. Messeena v. Carr, 9 Eq. 260. not to A direction that the annuitant shall not be allowed to Annuitant accept the value of the annuity in lieu thereof has been have value held ineffectual. Stokes v. Cheek, 28 B. 620. of his annuity. ary trust. A discretion vested in trustees to apply the annuity for Discretionthe benefit of the annuitant in the event of her incapacity will not alter the rule. Re Browne's Will, 27 B. 324. And a restraint upon anticipation will not deprive the Restraint annuitant of the right to the purchase-money, except in cipation. the case of a married woman. Woodmeston v. Walker, 2 R. & M. 197. upon anti upon Where a fund was bequeathed to purchase an annuity Cesser in the name of an annuitant, a declaration that the alienation. annuity should cease upon alienation was held not to take the case out of the rule. Hunt Foulston v. Furber, 3 Ch. D. 285. upon bank alienation. Where a fund is directed to be laid out by trustees in Gift over the purchase of an annuity for the life of A., for his sup- ruptcy or port and maintenance, with a gift over if he alienates it or becomes bankrupt, the cases are directly conflicting upon the question, whether the representatives of the annuitant are entitled to have the fund paid over, if the annuitant dies before the time when the annuity was to be purchased, without having alienated the annuity or become bankrupt. In Day v. Day, 1 Dr. 569, the fund was directed to be paid to the representatives of the annuitant, but this decision was not followed in Power v. Hayne, 8 Eq. 262; see Hatton v. May, 3 Ch. D. 148. Though the gift over upon bankruptcy or alienation might prevent the annuitant himself from calling for a transfer of the fund, it would seem that his representatives ought to be entitled to the fund if the gift over does not take effect. See Pearson v. Dolman, 3 Eq. 315. |