Annuitant is not the value of his In the case of a gift of an annuity with a direction to entitled to set apart a fund to secure it, it is clear that the annuitant is not entitled to have the annuity valued and the value annuity. paid to him. Wright v. Callender, 2 D. M. & G. 652 ; Miner v. Baldwin, 1 Sm. & G. 522. Deficient estate under administration. Annuity whether for life or If, however, the testator's estate is being administered by the Court and proves insufficient to pay the legacies and annuities given, so that an abatement is necessary, a value will be put upon the annuities as from the testator's death, and the annuitant or his representatives will be entitled to the valued amount after abatement. Wroughton v. Colquhoun, 1 De G. & S. 357; Carr v. Ingleby, ib. 362; Long v. Hughes, ib. 364. This principle applies only where the estate is being administered. In re Nicholson's Estate, I. R. 11 Eq. 177. It does not apply to annuities determinable on marriage or bankruptcy. Carr v. Ingleby, supra; Gratrix v. Chambers, 2 Giff. 321. II. THE DURATION OF GIFTS OF ANNUITIES AND 1. When an annuity is given to a person without more, the question arises, whether it was meant to be for life perpetual. only, or perpetual; and this point, in the case of annuities created de novo, is unaffected by sect. 28 of the Wills Act. Nicholls v. Hawkes, 10 Ha. 342. In the case of a deed, it has been decided, that a grant of an annuity given without words of limitation and charged upon freeholds, gives a life interest. The same rule applies if the annuity is charged on freeholds and chattels real. Butt's Case, 7 Rep. 23 a; In re Gillman's Estate, I. R. 10 Eq. 92. Whether a grant of an annuity without words of limitation charged upon a chattel interest would endure beyond the life of the annuitant, if he dies during the term, is doubtful. Cases supra. facie a gift life only. In the case of wills the presumption is, that an annuity Prima given simply is for life only, whether it is given to a single of an anlegatee, or to A. for life, and then to B. simply, or to A. nuity is for with power to give it after his death to another, or to several others and the survivor. Blewitt v. Roberts, 10 Sim. 491; Cr. & Ph. 274; Yates v. Maden, 3 Mac. & G. 532. An annuity given for education and maintenance cannot endure beyond the life of the annuitants. Wilkins v. Jodrell, 13 Ch. D. 564; see p. 396, post. But an intention may be gathered from the will, that the annuity is to be perpetual, and no particular words of limitation are necessary for this purpose. Thus : a. An annuity is perpetual, if there is a gift of property Gift of to produce it. Stokes v. Heron, 12 Cl. & F. 161; Hicks Property to v. Ross, 14 Eq. 141. produce annuity. to purchase b. It is said that a direction to purchase an annuity of a Direction given amount is equivalent to a direction to purchase a annuity. perpetual annuity, and the case of Ross v. Borer, 2 J. & H. 469, decided on the authority of Kerr v. Middlesex Hospital, 2 D. M. & G. 576, seems to go the full length of this proposition. On principle, however, it is difficult to see in what respect a direction to purchase an annuity can be distinguished from a mere gift of an annuity. Of course, if there is a dedication of a part or the whole Dedication of proof the testator's property to produce an annuity, this may in perty. effect be a gift of so much property as will produce the annual amount, as in Stokes v. Heron, 12 Cl. & F. 161, where there were other circumstances which tended to show that the annuities were to be perpetual. See Wakeham v. Merrick, 37 L. J. Ch. 45. Or, again, the testator may distribute the whole of his estate in the form of gifts of annual sums or annuities to Gift of part of annual in come of a fund. Gift of testator's property to pay an annuity will not different legatees, as in Kerr v. Middlesex Hospital, 2 D. M. & G. 576, where the fact that one of the gifts of a certain annual income was to the Middlesex Hospital was strong evidence to show that other annuities given in very similar language were intended to be perpetual. See, too, Hicks v. Ross, 14 Eq. 141. But it may be doubted whether the proposition, that a direction to purchase an annuity gives a perpetual annuity, laid down in Kerr v. Middlesex Hospital, and Ross v. Borer, will be acquiesced in. At any rate a direction to invest a sum in Government securities sufficient to produce a certain annual sum which is given to an annuitant, gives only a life interest. Re Grove's Trusts, 1 Giff. 74; see Banks v. Braithwaite, 11 W. R. 398; 32 L. J. Ch. 35, 198. c. If the annuity is given as part of the income of a particular fund, it amounts to a gift of so much of the fund itself. Bignold v. Giles, 4 Dr. 343; Courtenay v. Gallagher, 5 Ir. Ch. 154, 356; Rawlings v. Jennings, 13 Ves. 39; Potter v. Baker, 13 B. 273; 15 B. 489; Bent v. Cullen, 6 Ch. 235; see Evans v. Walker, 3 Ch. D. 211. Possibly a gift of so much a year would be considered a gift of the capital producing the annual sum. See Hill v. Rattey, 2 J. & H. 634. Where a testator bequeathed to his daughter on her marriage a sum of stock producing a certain annual sum, and gave her out of his general dividends an annual sum to make up the income to £400, the latter gift was held to be a gift of capital producing the necessary income. Engelhardt v. Engelhardt, 26 W. R. 853. d. But a mere devise of all the testator's property on trust to pay an annuity, or a charge on a certain fund, will not make the annuity perpetual. Lett v. Randall, 3 Sm. & G. 83; 2 D. F. & J. 388; Sullivan v. Galbraith, I. R. 4 Eq. 582; Wilson v. Maddison, 2 Y. & C. C. 372. See make it perpetual. Innes v. Mitchell, 6 Ves. 464; 9 Ves. 212. for cesser certain e. If the annuity is directed to cease if the legatee dies Direction without issue, or is directed not to be sold till after the or sale at a death of the legatee, there is a strong argument that it time. was meant to be perpetual. Hedges v. Harpur, 3 De G. & J. 129; Pawson v. Pawson, 19 B. 146. f. Or again, if the legatee has a power of appointing the Powers of appointing annuity in words that would authorise the appointment of the ana perpetual annuity, or the annuity is given over in certain nuity in events in fee, the same argument arises. Wright v. Wright, 12 Ir. Ch. 401; Robinson v. Hunt, 4 B. 450. fee. tions in mere life g. And if the annuity, being given to several persons Limitaas tenants in common, is given over in its entirety at a consistent period when, if it were only for the life of the legatees it with a might have partially determined, it will be perpetual, as it interest. would be absurd to suppose that it is to cease upon the death of a prior annuitant and to revive again in certain events. Mansergh v. Campbell, 3 De G. & J. 237 ; Barden v. Meagher, I. R. 1 Eq. 246. nuities to h. In Parsons v. Parsons, 8 Eq. 260, an annuity, given Gift of anto several or their heirs, was held to be perpetual, though several or the heirs took by substitution. 2. Implication of survivorship between annuitants: their heirs. A bequest of an annuity to two persons for their lives Gift of an annuity to goes to the survivor for his life, though the annuitants two permay be husband and wife. Moffat v. Burnie, 18 B. 211; sons for Neighbour v. Thurlow, 28 B. 33; Alder v. Lawless, 32 B. 72. See Day v. Day, Kay, 703. ' their lives. as tenants As to the construction of a bequest of an annuity to two Gift to two persons as tenants in common for their lives without more, in common see Lill v. Lill, 23 B. 446; Grant v. Winbolt, 2 W. R. for their 151; 23 L. J. Ch. 282. Where the gift is to two persons as tenants in common for their lives, with a gift over after their death: lives. Gift over after the death of vor. Gift over after the a. If the gift over is expressly after the death of the survivor, benefit of survivorship will be implied between the survi- the annuitants. Armstrong v. Eldridge, 3 B. C. C. 215. b. So, if the gift over is not till after the death of death of both, or the whole is given after their death as one undivided fund, the survivor will take the whole. Tuckerman v. Jeffries, 3 Bac. Abr. ed. Gw. 681; 11 Mod. 108; M'Dermott v. Wallace, 5 B. 142; Draycott v. Wood, 8 L. T. N. S. 304. all the tenants for life. Gift over after the death of the annuitants The same rule applies though the gift is expressly to A. and B. for their joint lives, if nothing is given over till after the decease of both. Townley v. Bolton, 1 M. & K. 148. c. This implication of survivorship, however, does not arise, where the gift over is not merely after the death of the annuitants, but after the death of the annuitants and and a third some other person who cannot have been intended to take by survivorship. Re Drakeley's Estate, 19 B. 395. person. Nor can it arise, where the shares of legatees dying are expressly disposed of during the period between the death of each and the death of all. Walmsley v. Foxall, 1 D. J. & S. 605. As to the meaning of "every" in a gift over after the death of every of the annuitants, see Brown v. Jarvis, 2 D. F. & J. 168. d. If the gift over is to the children of the annuitants, the most obvious construction is, that the share of each goes over immediately on his death to his children. Sutcliffe v. Howard, 38 L. J. Ch. 472. See pp. 254, 255, ante. But if it is clear that nothing is given to the children till after the death of all the tenants for life, the survivor takes the whole. Begley v. Cooke, 3 Dr. 662; Alt v. Gregory, 8 D. M. & G. 221. See Minton v. Minton, 9 W. R. 586. |