Vize v Stoney

• Jurisdiction: Ireland
• Judgment Date: 04 December 1841
• Date: 04 December 1841
• Court: Court of Chancery (Ireland)

Chancery.

VIZE

and

STONEY.

Atkins v. HiccocksENR 1 Atk. 500.

Garbut v. HiltonENR 1 Atk. 381.

Elton v. EltonENR 3 Atk. 504.

Knight v. Cameron 14 Ves. 389.

Roberts v. Roberts 2 Buls. 125.

Stapleton v. ChealesENR Prec. Ch. 317; S. C. 2 Ver. 673.

Clobery's CaseENR 2 Vent. 342; S. C. Free. 24.

Collins v. Metcalf 1 Ver. 462.

Van v. ClarkeENR 1 Atk. 512.

Hoath v. HoathUNK 2 B. C. C. 3.

Walcot v. HallUNK 2 B. C. C. 305.

Hanson v. Graham 6 Ves. 239.

Branstrom v. Wilkinson 7 Ves. 421.

Booth v. Booth 4 Ves. 399.

Leake v. RobinsonENR 2 Mer. 386.

Jones v. MackilwainENR 1 Russ. 220.

Murray v. AddenbrookENR 4 Russ. 407.

Watson v. HayesENR 9 Sim. 500.

18 Law Journal.

Keily v. Monck 3 Ridg. P. C. 205.

Atkins v. HiccocksENR 1 Atk. 500.

Elton v. EltonENR 3 Atk. 504.

Leake v. RobinsonENR 2 Mer. 386.

Jones v. MackilwainENR 1 Russ. 220.

May v. WoodUNK 3 B. C. C. 470.

Knight v. Cameron 14 Ves. 389.

Beaumont 3 Ves. 89.

Batsford v. Kebbel 3 Ves. 363.

Breedon v. TugmanENR 3 My. & K. 289.

Booth v. Booth 4 Ves. 399.

64 CASES IN EQUITY. 1841. Chancery. .VIZE t. STONEY. (Chancery.) BENJAMIN WHITE, by his will bearing date the 9th of January 1786, gave to his eldest daughter Rebecca, 1500; to his daughter Susanna, 1000; and to his daughter Catherine, 1200: "the said respective "sums to be paid to my said daughters respectively on their respective "days of marriage, with the lawful interest thereof, to be computed from " the day of my decease, until the same shall be respectively paid." The testator then directed that in case either of his said daughters should marry any person who should not either previously to, or during the coverture, settle on her a jointure to the extent at least of 10 for every 100 of the provision thereby made for such daughter, that such husband should not receive out of his (testator's) estate any part of the portion bequeathed to such daughter, but that the same should be put out at interest by his executors, and the interest thereof paid to the husband until his decease, or until a jointure to such amount as before stated should be settled by him on his wife. And the testator directed that the principal sum or sums thereinbefore bequeathed to such of his daughters as should so marry should, immediately upon the execution of a deed for settling such jointure as aforesaid, be paid, or the securities upon which the same might be invested transferred to the husband. He then directed that if any of the husbands of his daughters should die in their lifetime without having settled a jointure as aforesaid, such daughter should, immediately on the decease of her husband, receive her portion. He further directed that in case any of his daughters should die in the lifetime of her husband, before the latter should have (by settling a jointure) entitled himself to the principal of her fortune, and should leave any child or children, then that his executors should pay her portion to, or to the use of such child or children: but if such daughter should leave no child her surviving, then he directed the amount of her portion to be paid to the survivor or survivors of his said daughters and his only son (Finch White), to be divided equally between them ; " the share or "shares of his surviving daughter or daughters to be paid to her or them "respectively, at such times and subject to such restrictions as her or "their original shares." The testator then gave legacies of 100 each to his two grandÂÂsons, to be paid to them at their respective ages of twenty-one, with interest from his death ; but if either should die under that age, he directed the legacy of the one so dying to go to the survivor ; and if both should die under twenty-one, the legacies to be paid to his son Finch White. He then gave to his three daughters ten guineas each to buy were vested. CASES IN EQUITY. 65 mourning, "exclusive of, and over and above the provision thereinbefore made for them respectively." After some unimportant specific legacies, he then gave to his son Finch White, " all the rest, residue, and remainder " of the fortune and effects which he should die possessed of or entitled "to, after payment of all his just debts and funeral expenses, and the "legacies thereby bequeathed ;" and appointed two executors, and his daughter Rebecca, executrix. The testator died in 1797 without having altered or revoked his said will, leaving his said son, the three daughters named in his will, and a fourth daughter Frances, who was married at the date of the will, him surviving. The executors and executrix having renounced, administration with the will annexed was granted to the son Finch White. Two of the daughters, Rebecca and Catherine, died unmarried and intestate-the former in 1820, the latter in 1836 ; and the bill was filed by the only child of the fourth daughter (Frances), who had obtained adminisÂÂtration to his deceased aunts, against the widow and personal represenÂÂtative of the son, and the administrator de bonis non of the original testator, claiming the amount of the legacies which had been bequeathed to them, and praying that the same might be paid out of the personal estates of the testator. The cause had been originally heard before Lord Plunket, and his Lordship gave a decree for the plaintiff. A petition of re-hearing was presented, and the cause now came on to be re-heard. The only question either now or at the original hearing was, whether the legacies to the testator's daughters were vested or contingent. Mr. Henn, Q. C., Mr. W. W. Brereton, and Mr. R. R. Warren, for the plaintiff. This is a will by a parent, making a provision for a child ; the gift is absolute, the payment only postponed; but as the event upon which the legacy is to be payable is uncertain in its nature, it is conÂÂtended on the other side that the legatee takes no vested interest until it happens. Upon the face of this will, there are strong indications that the testator intended the legacy to be vested immediately ; he arranges the mode in which the provision he had made for his daughters should be settled in case of their marrying, and declares that if either of them who should marry, should survive her husband without having a settleÂÂment made on her, and without having children, that such daughter should take her legacy absolutely. It is very unlikely that he should have intended to place a daughter so circumstanced, in a better position than a daughter who never married. Then he gives each of his daughters ten guineas to buy mourning, and declares that it is not to be a satisfaction of any other provision which he had made for them ; and he gives the 66 CASES IN EQUITY. residue to his son " after...