Morgan v. Morgan.

the words "household furniture and cattle." It is to be inferred, therefore, that as to those at least, he supposed they would have no specific existence as part of his estate, when it was to be divided. This is, it is true, but a trifling matter, and little weight is to be attached to it: it removes, however, the force of the observation, that the various parts of his residuary estate are repeated in the same exact words; this is not so, as two of the enumerated items most likely to perish are not repeated.

Again: the power to vary securities, at the close of the will, is only intelligible on the supposition that the property had been converted. This clause is also important in another point of view. If the testator intended his widow to enjoy the long annuities in specie, could he have permitted his trustees to defeat that intention, as undoubtedly they might do, if, under this clause in the will, they turned the long annuities into three per cent. consols, or invested the produce on mortgage. The directions respecting the Great Staughton estate are also important. I accede to the argument, that if the testator had intended the whole property to be enjoyed in specie, he would not have considered it necessary to direct that the household furniture, plate, linen, and china at Great Staughton should be enjoyed in specie by the wife during her life.

It was urged, that this observation would have a twofold operation, because, as he has directed the estate at Great Staughton to be sold, it is to be inferred, that if he wished the rest of the property to be sold, he would have given similar directions. But the circumstance that the Great Staughton was a property of which the testator had the fee, and could not be sold, unless the will contained some direction for this purpose, removes the force of this observation.

The circumstance that the residue is given to two of the executors as trustees, and not to the three executors, does not weigh with me, as to the construction to be given to the rest of the will.

The general scope and effect of the whole will and the passages to which I have referred, would, without considering any particular expressions, lead me to the conclusion, that the testator did not intend the property to be enjoyed in specie; still, this may be varied by the force of particular expressions used by the testator, and accordingly, the counsel for the petitioners refer to several expressions contained in the will, as being consistent only with their construction of the will; and they support their view by many authorities.

There is certainly a great variety of cases, where the court has laid hold of various small expressions, as indicating the testator's intention, that the property was to be enjoyed in specie; but all, or nearly all, of them are, I think, referable to a particular mode of management of the property or payment out of it, which management or payment could not take place unless the property remained unconverted.

For instance, in Pickering v. Pickering, 2 Beav. 31, and 4 M. & C.289, and Goodenough v. Tremamondo, 2 Beav. 512, the rents are directed to be paid to the legatee; and there was no property producing rents, except leaseholds.

Morgan v. Morgan.

In this will, the word "rents" is used; but it is confined to the freeholds. In Cafe v. Bent, 5 Hare, pp. 34 and 35, the testator directed a per centage on the receipt of the rents of the leaseholds to be paid to his son John.

In Burton v. Mount, 2 De Gex & Sm. 383, a mixed property, consisting of freeholds and leaseholds, was given to trustees, in trust, out of the rents, to pay annuities, with a power of sale given to them, which showed, that until sale, the leaseholds were to be enjoyed in specie.

I do not go through all the cases, which are very numerous; but each, when examined, will be found to possess the character I have already referred to.

In this will, I look in vain for any such expression. The word on which the petitioners mainly rely, is the word "assign," which, they say, is properly applicable only to leaseholds; but this word might apply to mortgage securities, upon which, under the general power at the end of the will, the testator probably considered that he had authorized his trustees to advance money; and the words reddendo singula singulis, in their order, so far from supporting, would exclude the supposition, that the word "assign" was intended to apply to leaseholds remaining unconverted. The passage in the will runs thus:-"pay" "my money," "assign" "my securities for money," and "transfer" my "money in the funds and personal estate."

There are other cases, such as Bethune v. Kennedy, 1 M. & C. 114, Collins v. Collins, 2 M. & K. 703, where the testator has expressly pointed to the property, by name, as unconverted, or has described his property as remaining in the manner in which it was situated when he died. These cases have no reference to the present, as this will contains no such expressions.

Upon the whole, therefore, I am of opinion, that the testator has not given his property to be enjoyed by his wife in specie, and that the decree, so far as it proceeds on this supposition, ought not to be varied.

But another part of the decree is complained of on separate and distinct grounds, and it is contended by the petitioners that, assuming that they failed in the construction they seek to set on the will of the testator, the decree is erroneous, inasmuch as it deprives the widow of all income in that part of the residuary estate of the testator which accrued before the conversion of the leaseholds; and I am of opinion that the decree is erroneous in this respect.

The respondents seem to admit, that, to some extent at least, it is erroneous; but they say, that on further directions, they offered to allow to the widow all that she could properly have been entitled to, if the decree had been rightly framed, in the first instance; but to what extent the widow is entitled, is still a subject of discussion. She was legatee for life of the residue, and during the period of one year after the death of the testator, it may still be a matter of considerable doubt, what she, as such legatee for life of the residue, is entitled to receive. The later authorities on this subject concur in this: that the legatee for life is to take something; but they are not,

Morgan v. Morgan.

as it appears to me, reconcilable as to the extent of the interest which the legatee for life is to take, although the subject has been much agitated.

Sir Anthony Hart, in La Terriere v. Bulmer, 2 Sim. 18, decided that the income of the testator's property during the first year, so far as it was derived from investments such as the court would sanction, belonged to the legatee for life of the residue; but that so far as it was derived from property not so invested, formed a part of the general residuary estate; and this rule was commended by Vice-Chancellor Sir James Wigram in Taylor v. Clark, 1 Hare, 161, although he considered himself bound by authority not to follow it. It does appear to me, however, to be scarcely reconcilable with Gibson v. Bott, 7 Ves. 89, and not at all with Angerstein v. Martin, Turn. & R. 232. In the former of these cases, Lord Eldon directed, that a value should be put on the leasehold estate, and that the legatee for life should receive four per cent. on that value, from the death of the testator, and in the latter of those cases, he made a decree, under which the legatee for life took the income of Russian stock, part of the estate which was directed to be sold and laid out in the purchase of land. The rule so laid down by Sir A. Hart, appears to me to be open to this objection, that the income of the residuary legatee depends upon the mere will of the executors, who may, from negligence, caprice, or enmity, fail to convert the property of the testator, until one year after his death shall have elapsed, and thereby deprive the residuary legatee of all income during that year. The decision of Sir A. Hart has not been followed, and in Dimes v. Scott, 4 Russ. 195, Lord Lyndhurst laid down the rule to be, that the legatee for life of the residue was entitled, during the first year of the testator's death, to the dividends on so much three per cent. stock, as would have been produced by the conversion of the property at the end of that year.

There is some inconvenience in this rule, which requires a difficult inquiry to be made, in every case, as to the value of the property at the end of one year; nor does it seem, in principle, at least, to be quite consistent with Lord Eldon's observation in Gibson v: Bott, that "the whole practice of the court is against special directions as to the value at the time of the death." The only cases cited appear to have been Angerstein v. Martin and Hewitt v. Morris, Turn. & Russ. 241. This question subsequently came before Lond Langdale, in Douglass v. Congreve, 1 Keen, 410, who, after reviewing all the previous authorities, in an elaborate judgment laid down as the rule, that the legatee for life of the residue is to be allowed the income actually produced by that residue until conversion, or until the end of one year, which of those events should first happen. The result of that rule is this: if the conversion take place before the end of the year, till that period of conversion, the legatee for life will take the income actually arising, and, after conversion, the interest of the converted fund in this case, no inquiry as to value will be necessary. If, on the other hand, the conversion takes place after the end of one year, then the legatee for life will take the income actually arising during

Morgan v. Morgan.

the year that has elapsed after the death of the testator, and, after that year, so much as the residue, if converted and invested at that time, would have produced. In this case, an inquiry becomes necessary to ascertain what was the value of the property at the termination of the first year, and what amount of consols it would have produced, if then invested.

This decision of Lord Langdale's has been commented upon and commended by Mr. Jarman, and seems to have been followed by Lord Langdale in Mehrtens v. Andrews, 3 Beav. 72, and in Robinson v. Robinson, 11 Beav. 371.

This rule also seems open to considerable objections. Sir James Wigram, in Taylor v. Clark, 1 Hare, 161, points out the inconvenience which might arise from it, where the larger portion of the property of the testator consisted of rents of leasehold which would expire in one year. It seems difficult, also, to distinguish income which expires in one year from that which expires in less than a year; and yet, if a testator died just before the last payment of dividends on the long annuities, or of an annuity on the life of any other person, it could scarcely be contended that this formed part of the income of the residuary estate. It is also open to the objection I before referred to, as applicable to the rule in La Terriere v. Bulmer, 2 Sim. 18, that the executors, from favor to the residuary legatee, might delay till after the year had elapsed, the conversion of perishable property producing a large income. All the authorities were reviewed by Sir James Wigram, in the case of Taylor v. Clark, 1 Hare, 161, and he considered himself, although reluctantly, bound to follow the decision of Lord Lyndhurst in Dimes v. Scott.

This decision was also followed by Vice-Chancellor Sir James Knight Bruce, in Sutherland v. Cooke, I Collyer, 498.

In this state of the authorities, I consider myself bound to follow the decision in Dimes v. Scott; and, upon the whole, it appears to me to be that least open to objection; and I shall adopt that rule accordingly, until I may be controlled by some higher authority; but I concur with the observation of Sir James Wigram, in hoping, that the amount of property at stake may be such as to justify an appeal, in order that this question, which is one of frequent occurrence, and involving interests of large amount, may be finally settled.

The decree, as it stands, gives the widow no portion of the rents of the leaseholds for the first year. In this respect it is, in my opinion, erroneous; and I think that it must be varied, for the purpose of enabling the court to give the widow of the testator that which is her right. I think that this may best be done by referring it to the master to whom these causes stand referred, to ascertain what, at the expiration of one year after the decease of the testator, was the value of the leaseholds and all the other residuary property of the testator not invested in 3 per cents., and what amount of 3 per cent. consols would have been purchased at that time, if the property had been then invested in 3 per cent. consols, and had realized the estimated amount, and also to ascertain the amount of dividends which would have accrued on such consols in one year.

In re The Worcester Corn Exchange.

I do not propose to make any declaration of rights of the widow, but to direct these accounts and inquiries with a view of giving her the benefit of the rule I have above stated, and which is laid down in Dimes v. Scott.

I am of opinion that this is not a case to give any costs on either side; the decree is, in my opinion, erroneous, and must be set right. It is not sufficient that the respondents offered, even if it be so, to give the widow the benefits she would have got if this decree had been originally made in the form to which I now propose to alter it. She had no means of binding them, and she was entitled to have her rights accurately expressed in the form of the decree.

The decree will require some alterations in consequence of these directions, which may be maturely considered, and it may be mentioned again, if necessary, on this day week.

In re THE WORCESTER CORN EXCHANGE.1

April 26, 1851.

Joint Stock Companies Winding-up Acts- Order of Reference to the Master Advertisement.

The Order of Reference, whether it is expedient to wind up a Company, may be dispensed with.

In this case an order was made on the 16th November last, referring it to the master to inquire whether it was expedient or necessary that the company should be dissolved and wound up under the act. (16 Law T. 189.) The Master (Kindersley) having reported that it was expedient, the present petition was presented praying the usual order for the dissolution and winding-up of the company. It appeared that the order of reference had not been advertised, pursuant to the directions of the 15th section of the Winding-up Act of 1848, which required that the date, title, and ordering part of every order of the court made upon any such petition, previously to and including the order absolute, shall, within twelve days after the date thereof, be advertised once in the London Gazette. The original petition, however, had been duly advertised, and all the proceedings were regular. The directors had filed a declaration of insolvency, upon which the original petition was founded, and they had been summoned by the master upon the inquiry before him. The 16th section of the act of 1849 enacts," that it shall be lawful for the master, in such cases as he thinks fit, to dispense with any advertisements required by the said act to be made of any call, or of any other proceedings by or

1 15 Jur. 960.