M. R. 1871 v. MORTON, I must hold that that was the time at which the sufficiency or insufficiency of the personal estate was to be determined. The RICHARDSON estate might, no doubt, have become unexpectedly greater or less in value after that time, but as that has not happened, it is immaterial for the present purpose to consider what the consequences might be. The condition on which the legacy was to be payable out of the land has not been fulfilled, and consequently the case fails. I have examined the cases which were cited, and am of opinion that in those in which the devisee of the land was also the personal representative who wasted the estate, the identity of the two characters prevented them from raising the defence which has succeeded here. Solicitors for the Plaintiff: Messrs. Sharp & Ullithorne, agents for Messrs. Hodgson & McKeever, Wigton. Solicitors for the Defendants: Messrs. Jennings, White, & Buckston, agents for Messrs. S. & S. G. Saul, Carlisle. M. R. 1871 Dec. 9, 11. ATTORNEY-GENERAL v. FLETCHER. Will-Construction-Joint Tenancy or Tenancy in Common-" Between.” Under a gift in a will to such of the nephews and nieces of A. and the children of A.'s deceased niece B. thereinafter named (then followed the names of the nephews and nieces and children of the deceased niece), as should be living at the time of the decease of the testatrix, to be divided between and among them per stirpes equally and not per capita, the children of B. taking between them only the equal share to which B. would have been entitled if named in that bequest instead of her children, and living at the time of the decease of the testatrix : Held, that the children of B. took as tenants in common. THIS was a Petition for payment out of Court of a fund standing to a separate account in the cause, which was bequeathed by the will of Ann Fletcher, dated the 5th of April, 1830 (subject to two life interests, both of which had expired) unto such of the nephews and niece of her late husband and the children of his deceased niece Ann Clarke, thereinafter named, that is to say (then M. R. 1871 GENERAL v. followed the names of the nephews and niece and the children of the deceased niece), as should be living at the time of the decease of the testatrix, to be divided between and among them per ATTORNEYstirpes equally and not per capita, the children of the said Ann Clarke taking between them only the equal share to which the FLETCHER. said Ann Clarke would have been entitled if named in that bequest instead of her children, and living at the time of the decease of the testatrix. The question was, whether the children of Ann Clarke took as joint tenants or tenants in common. Mr. Davey, for the Petitioner, a child of Ann Clarke, who had survived the determination of both life interests, submitted that the children of Ann Clarke took as joint tenants. The direction that the fund should be divided among the parties equally per stirpes, only created a tenancy in common as between the children of Ann Clarke and the other parties entitled; but did not shew any intention on the part of the testatrix that the children of Ann Clarke should themselves take as tenants in common: Bridge v. Yates (1); Lanphier v. Buck (2); Penny v. Clarke (3). Mr. F. A. Lewin, for a Respondent in the same interest, cited Coe v. Bigg (4); Leake v. Macdowell (5). Mr. Badcock, for the representatives of a deceased child of Ann Clarke, admitted the rule as laid down in the cases cited, but contended that in this case there were double words of severance, viz., "to be divided equally between and among them ;" and "taking between them." The use of the word " between was sufficient to create a tenancy in common: Lashbrook v. Cock (6). Mr. Everitt, for Respondents in the same interest. Mr. Chapman Barber, and Mr. Cookson, for other parties. Mr. Davey, in reply: In Lashbrook v. Cock it was impossible to give effect to the M. R. 1871 ATTORNEY v. words "between them" in any other way than by holding that they created a tenancy in common. Here the words are equivalent to "as between themselves," or "inter se," neither of which GENERAL expressions would have constituted a tenancy in common. In FLETCHER. giving judgment in Bridge v. Yates (1) the Vice-Chancellor speaks of persons taking" as joint tenants as between themselves;" shewing clearly that in his opinion the use of the word "between" was not inconsistent with a joint tenancy. Dec. 11. LORD ROMILLY, M.R. :— I am of opinion that the children of Ann Clarke took as tenants in common. The case of Lashbrook v. Cock (2) is a distinct authority that the use of the words "between them" creates a tenancy in common, and I believe that I have always followed that decision. Mr. Davey founded an ingenious argument on the language of the Vice-Chancellor Shadwell, in giving judgment in Bridge v. Yates; but all that he there meant to say was that two families might take as between the families as tenants in common, but that when you came to the families themselves, the members of each family took as joint tenants; and I do not think that case affects the matter. Solicitors: Messrs. Ellis & Ellis; Messrs. Lewin & Co.; Messrs. Vizard, Crowder, & Co.; Messrs. Merediths, Roberts, & Mills. (1) 12 Sim. 645. (2) 2 Mer. 70. BUBB v. YELVERTON. [1868 B. 316.] Will-Legacy to Executor who does not act― Words "my friend P." and 66 as a remembrance." Testator appointed his "friend" P. his executor, and gave him a legacy 66 as a remembrance." P. did not act as executor : THE Held, that he was entitled to the legacy without proving the will. Marquis of Hastings, by his will, dated the 17th of June, 1868, appointed Hastings Yelverton and his (the testator's) "friend" Henry Padwick trustees and executors of that his will, and gave to each of them a legacy of £1000 "as a remembrance." The will was proved by Yelverton alone, power being reserved to Padwick to come in and take out probate. Padwick had never acted as executor, and was a creditor of the testator's estate in a large amount, which had since been paid off. A Petition was presented by Yelverton, praying, among other things, that the legacies to himself and to Padwick might be paid; and the question was, whether Padwick, not having proved or acted as executor, was entitled to the legacy. The Solicitor-General (Mr. Jessel), and Mr. C. Hall, for Mr. Padwick: This legacy is not given to Padwick simply in his character of executor, as he is described as the testator's "friend," and it is said to be given "as a remembrance." When a legacy to executors is accompanied by such words, it is payable whether or not they act in the execution of the will. Thus, in Burgess v. Burgess (1), a legacy by a testator to trustees and executors as a mark of his respect for them was held not to be revoked by a codicil appointing new trustees and executors with the same legacy as the others. In re Isabella Denby (2) was a similar decision; for there a legacy to "my friend. J. S., one of the executors of this my will," was held not to be conditional on his acceptance of the office. In the present case, if necessary, Mr. Padwick submits to prove the will. M. R. 1871 Dec. 13, 14. M. R. 1871 BUBB น. Sir Roundell Palmer, Q.C., and Mr. Pemberton, for the residuary legatees: Where a legacy is given to an executor, the presumption of YELVERTON. law is that it is given to him in his character of executor, and if he does not act, he is not entitled to receive it: Williams on Executors (1); Stackpoole v. Howell (2). In Read v. Devaynes (3) an executor was held not to be entitled to a legacy without proving the will, though it was expressed to be a mark of gratitude for past favours. In Burgess v. Burgess (4) the legacy was expressed to be "as a mark of respect," which is a much stronger expression than the words " as a remembrance," which we find here. Mr. Southgate, Q.C., Mr. Roxburgh, Q.C., Mr. Fry, Q.C., Mr. C. T. Simpson, Mr. Horton Smith, and Mr. Kekewich, for other parties. Dec. 14. LORD ROMILLY, M.R. : I think Mr. Padwick is entitled to the legacy. I have looked through the cases on the subject, and I think this legacy was clearly given to him for his own benefit. It is given "as a remembrance." A remembrance of what? A remembrance, I suppose, of his friendship; for the testator calls him his friend, and also makes him an executor. I am of opinion he is entitled to the legacy without proving the will. Solicitors: Messrs. Wordsworth, Blake, Harris, & Parson; Messrs. Horn & Murray; Messrs. Lanfear & Stewart. (1) Vol. ii. 4th Ed. p. 1100. (3) 3 Bro. C. C. 95. (4) 1 Coll. 367. |