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evidence is not admissible to show that the testator, some time after an advance, had written off a portion of the advance as a gift. Smith v. Conder, 9 Ch. D. 170.

A direction to deduct advances from shares of residue does not affect a residuary legatee's right to a general legacy given him by the will. Smith v. Crabtree, 6 Ch.

D. 591. Sum due A sum not payable to the testator till after his death is tor's death, not within a direction to bring advances into hotchpot.

Auster v. Powell, 1 D. J. & S. 99. Legatee If the legatee has become bankrupt and the testator bankrupt.

proved in the bankruptcy for a debt due from him, so much of the debt as remains unpaid must be brought into account. Auster v. Powell, 1 D. J. & S. 99; see Silversiile v. Silverside, 25 B. 340.

Where the income of a legatee was directed to be made up to a certain amount, the legatee to certify her income from all sources, it was held that the legatee was not bound to bring into account an annuity given by a subsequent testator with a direction that it was not to be taken into account, but was to be a clear beneficial addition. In re Hedges's Trust Estate, 18 Eq. 419.

A direction to deduct a sum from the share of a legatee as an equivalent for an estate given to him fails if the estate is not purchased. Nugce v. Chapman, 29 B. 288.

Under a direction to deduct advances made to a legatee by her brothers or sisters, debts owing from the legatee to her brothers and sisters may be deducted though barred by the statute. Poole v. Poole, 7 Ch. 17.

Where the testator directed his sons to pay or account for debts owing to him before they should receive their shares, and the share of a son was settled by a codicil, it was held that a debt due from the son was to be brought into account for the purpose of division, but not for the

share.

purpose of increasing the amount to be settled. White v. Turner, 25 B. 505.

Where the residue was given to the testator's children When by a first and second wife to vest at twenty-one, with a clause

hotchpot direction that if the children by the first wife should be- ceases to

operate. come entitled to another fund they should bring it into hotchpot, it was held that the hotchpot clause ceased to operate when the eldest child attained twenty-one. Stares v. Penton, 4 Eq. 40.

Where the testator directed his children, who were his Lapsed residuary legatees, to bring advances into hotchpot, and a share given to one of the children was revoked and lapsed, it was held that the hotchpot clause applied to the lapsed share, and that the son, whose share was revoked, could not claim as next of kin without bringing advances into hotchpot, but not so as to increase the widow's share. Stewart v. Stewart, 15 Ch. D. 539.

In the case of direct gifts where advances made by the Interest on testator are directed to be deducted from a legatec's share,

advances. interest at 4 per cent. on such advances must be computed from the testator's death. Andrewes v. George, 3 Sim. 393; Hilton v. Hilton, 14 Eq. 468; Field v. Seward, 5 Ch. D. 538; see Poole v. Poole, 7 Ch. 17.

If the testator directs the advances to be deducted with interest at 5 per cent., interest at that rate will be computed down to the testator's death and at 4 per cent. from that date. Stewart v. Stewart, 15 Ch. D. 539.

In the case of gifts in remainder interest must be computed from the death of the tenant for life. In re Rees; Rees v. George, 29 W. R. 301.

Under the ordinary hotchpot clause life and reversionary interests must be brought into account. Eules v. Drake, 1 Ch. D. 217.

In the case of appointments under powers, hotchpot clauses will not be implied.

share."

Appoint- Thus, an appointment in favour of an object “as and and for her for her share” does not exclude that object from sharing

in the unappointed part, though the sum left unappointed is such as would give all the objects equal shares. Wilson v. Piggott, 2 Ves. jun. 351; Wombwell v. Hanrott, 14 B.

143; Walmsley v. Vaughan, 1 De G. & J. 114. Share in And it seems a direction that the appointed share is in lieu of

lieu of all claims and demands of the donee to or for her claims.

original share in the trust fund will not exclude him from the unappointed part. Foster v. Cautley, 6 D. M. & G. 55.

On the other hand, an appointment to one object, coupled with a declaration that the donee of the power wishes the fund equally divided, may amount to an appointment of the rest of the fund to the other objects. Fortescue v. Gregor, 5 Ves. 553.

And a direction for accruer which can only have a meaning on the supposition that the fund has been appointed in favour of other objects, may also amount to an appointment. Foster v. Cautley, 6 D. M. & G. 55.

In the case of a deed, if the appointee is a party and a share is appointed to him in lieu of his share in the fund, the appointee cannot share in the unappointed part. Clune v. Apjohn, 17 Ir. Ch. 25; Armstrong v. Lynn, I. R. 9 Eq. 186.

Under a gift to several persons as A. shall appoint with a gift in default of appointment to them equally, a direction to bring advances into hotchpot applies only to the unappointed portion of the fund. Brocklehurst v. Flint, 16 B. 100.

001

CHAPTER XLVIII.

INTERESTS UNDISPOSED OF.

LAPSE.

PORTIONS of a testator's property may be undisposed, either because the disposition attempted by him has failed, or because no disposition has been attempted. A devise or legacy, whether it be of a debt due to the Doctrine

of lapse. testator or not, lapses by the death of the devisee or legatee before the testator, or even before the date of the will. Elliott v. Davenport, 1 P. Wms. 83; 2 Vern. 581; Maybank v. Brooks, 1 B. C. C. 84. Confirmation by codicil of a will containing a legacy to Confirma

tion by a legatee, her executors and administrators, where the codicil. legatee has died since the date of the will, does not prevent a lapse or give the legacy to the executors of the legatee. Hutcheson v. Hammond, 3 B. C. C. 127; Maybank v. Brooks, 1 B. C. C. 83. Where the gift is to several named persons as tenants Gift to

tenants in in common, the shares of any who die before the testator lapse. Page v. Page, 2 P. Wms. 489; Peat v. Chapman, by name.

. 1 Ves. sen. 542.

Possibly, if one of the named persons is shown on the Person face of the will to be dead at the date of the will, the date of fund would be divisible among the others.

Clarke v. Clemmans, 36 L. J. Ch. 171.

So a devise by A. to the uses of B.'s will can only take

common

dead at

will.

ment in excess of fund.

effect in favour of those who survive A. Culsha v. Chert, 7 Ha. 245.

The doctrine of lapse applies to a power of appointment exercised by will, and the appointee must survive the donee of the power in order to take. Duke of Marlborough v. Lord Godolphin, 2 Ves. sen. 61; Freeland v. Pearson, L. R. 3 Eq. 658; In re Susanni's Trusts, 47 L. J. Ch. 65.

An appointment by will in accordance with a covenant is subject to the ordinary rule as to lapse. Re Brookman's

Trust, 5 Ch. 182; see Jervis v. Wolferstan, 18 Eq. 18. Appoint- If a testator appoints under a power sums exceeding

the amount of the fund and one of the appointees predeceases him the other appointees are entitled to the

benefit of the lapse. Eales v. Drake, 1 Ch. D. 217. Gift to A gift to a debtor of his debt, though the debt be given debtor.

to him, his executors and administrators, with a direction to hand over the securities to him, is in effect a legacy, and lapses by the death of the debtor in the testator's lifetime. It is immaterial whether the debt is given or forgiven. Toplis v. Baker, 2 Cox, 118; Elliott v. Darenport, 1 P. Wms. 83; 2 Vern. 521; Maitland v. Adair, 3 Ves. 231; Izon v. Butler, 2 Pr. 34.

Possibly, a general direction to hand over the security to be cancelled might release the debt, whether the debtor survives the testator or not. Sibthorp v. Moxom, 3 Atk.

580; 1 Ves. sep. 49; see South v. Williams, 12 Sim. 566. Legacies With regard to legacies to creditors of the testator in to creditors

discharge of debts which have been released by the operadebts are tion of the bankruptcy laws or by lapse of time :barred

1. A gift to the official assignee in bankruptcy in trust to pay debts will not fail as regards creditors who die in the testator's lifetime, though the debts are barred by the Statute of Limitations as well as discharged by a certifi. cate in bankruptcy. In re Sowerby's Trusts, 2 K. &J

whose

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