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SCOTTISH_HoL_JURY_COURT

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(1815) 3 Dow 267

REPORTS OF APPEAL CASES IN THE HOUSE OF LORDS, During the Session, 1814—15. 55 Geo. III.

IRELAND.

APPEAL FROM THE COURT OF CHANCERY.

No. 18

Colclough and Others Appellants

v.

Gaven and Others Respondents

April 21, 1815.

WILL. — LEGACY.

Under the words in a will, “to pay to each of my said (younger) children (three daughters) as and for their respective portions, a sum equal to one fourth of what shall remain to my said (eldest) son William—payable to my said daughters respectively, at her or their respective ages of twenty-one, or marriage, &c.” held that all the daughters were only entitled to a sum equal to a fourth of what remained to the eldest son, or each of them to one seventh, (such appearing to be the testator's intention), and that the time of the testator's death was that at which the amount of his property, and the proportions of the shares were to be computed and estimated.

Will of Luke Gaven, Jan. 11, 1790.

Luke gaven, Esq. being possessed of personal property to the amount of about 5000 l. and seized of Freehold Estates in the Counties of Meath, Sligo, &c. of the value of about 1700 l. a year, on January 11, 1790, made his will, which was executed and attested, so as to pass real estates; and thereby, after directing payment of his just debts and funeral expences, he devised and bequeathed all his messuages, lands, tenements, hereditaments, and all the personal estates of which he should die possessed, to the

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honourable Simon Butler (since deceased), and to Oliver Nugent and Henry Cope, and the survivors and survivor of them, and the heirs, executors, and administrators of such survivor, to the use, intent, and purpose, that the several persons therein mentioned should receive and take the several Annuities thereby given: and the will then proceeded in the following words: “And to and for this further use, intent, and purpose, and subject to the aforesaid uses, intents, and purposes, that they the said Simon Butler, Oliver Nugent, and Henry Cope, and the survivors and survivor of them, and the heirs, executors, and administrators of the survivor of them, do and shall, out of the rents, issues, and profits of my real, freehold, and personal estates, apply a reasonable sum to and for the maintenance and education of my children, William Gaven, Mary Gaven, Elizabeth Gaven, and Julia Gaven, and any other child or children, my said wife Mary Gaven, otherwise Walsh, may have during my life, or be ensient with at my death; and that they do and shall place out at interest, in the funds of government, the remainder (if any) of my personal estate, and the remainder of the rents, issues, and profits of my real and freehold estate, until put of this fund there shall be raised a sum sufficient to pay to each of my said children, Mary, Elizabeth, and Julia, and any other child, or children, my said wife Mary Gaven, otherwise Walsh, may have during my life, or be ensient with at my death, as and for their respective portions, a sum equal to one fourth of what shall remain to my said son William, or such son

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or sons becoming an eldest son, as my said wife Mary Gaven, otherwise Walsh, may have during my life, or be ensient with at my death, payable to my sons respectively, at his or their respective age or ages of twenty-one years, with power to the said Simon Butler, Oliver Nugent, and Henry Cope, and the survivors and survivor of them, and the heirs, executors, and administrators of such survivor, during the respective minorities of my said sons, to pay the whole or part of their respective portions, in order to apprentice or otherwise advance them respectively in life, and payable to my said daughters respectively, at her or their respective ages of twenty-one years, or marriage with the consent in writing of the said Simon Butler, Oliver Nugent, and Henry Cope, or the survivors or survivor of them, which shall first happen. But if any such daughter or daughters shall happen to marry before the age of twenty-one years without such consent, then such daughter or daughters shall not receive her or their respective portion or portions, but only the respective legal interest of the same during her or their respective life or lives, to be paid to her or them by half-yearly payments, for her or their respective sole use, without the intermeddling of her or their respective husband or husbands; and after the respective death or deaths of such daughter or daughters, her and their respective portion or portions shall be equally divided among such of her or their respective children as shall attain the age of twenty-one years;” with directions respecting the interest of his said daughters' portions, and

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with benefit of survivorship: and, subject to the aforesaid charges, the testator devised his said estates to the use of his said son William Gaven, his heirs, executors, administrators, and assigns, for ever.

Bill filed, May 1803.

Decree, July 12, 1804.

The testator died on May 12, 1790, without having altered or revoked his will, leaving his widow and the four children named in the will, which was proved by the executor Butler, who took upon himself the management, and misapplied or embezzled a great part of the property, and died insolvent. The other executors were then prevailed upon to interfere, and act in the trusts of the will. Mary Gaven, one of the daughters of the testator, intermarried in 1802, with the Rev. Dudley Colclongh; and on May 27, 1803, Colclough and his wife filed a bill in the Irish Chancery against William Gaven, the testator's son, and other proper parties, praying that the trusts of the will might be carried into execution, and the property of the plaintiff Colclough and his wife might be ascertained and paid. Answers having been put in, and the parties having submitted their rights under the will to the judgment of the Court, the cause was heard on bill and answer, on July 12, 1804, before the then Master of the Rolls, who decreed that the trusts of the will should be carried into execution, and that an account should be taken among other things of the whole amount of the value of the testator's estates at the time of his death, after deducting debts, &c.; and that Colclough and his wife were entitled to one fourth of such value, with interest from the time of the wife's attaining the age of twenty-one years.

Re-hearing.

Decree, March 8, 1810.

After various proceedings under this decree, and

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when the Master was about to sign his report, William Gaven, the son, on November 30, 1808, petitioned the Lord Chancellor for a re-hearing; submitting that, by the true construction of the will, Mary Colclough and the other daughters were all of them only entitled to a fourth, or each to a seventh of the testator's property; and that the loss by Butler ought to be rateably borne by the daughters or younger children, and the petitioner. On March 8, the cause was re-heard before the Lord Chancellor, and it was contended for the younger children that, supposing the decree of July 12, 1804, to be erroneous as to the proportion of one fourth given by it to Mary and her husband Colclough, it was also erroneous in fixing the period of the testator's death for the computation of the value of the property and amount of the shares, instead of the time of distribution. The Lord Chancellor on March 8, 1810, decreed that the decree of July 12, 1804, should be varied so far as respected the proportion to be paid to the younger children, and that, according to the true intent and meaning of the testator, each of the younger children was entitled to a proportion equal in point of value to one fourth of what remained of the testator's property to the eldest son, after providing for the several bequests, charges, and incumbrances upon the estates; and that, in order to ascertain the amount of the testator's property at the time of his death, it should be referred to the Master to take an account, &c. and that the younger children were each entitled to a sum equal to one seventh of the net value of the real estates, computed at the time of the testator's death,

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the same to be paid out of a fund, to be formed, with the surplus, if any, of the personal estate, and the rents, issues, and profits, of the real estates. In effect, the decree was made according to the prayer of the petition, except as to the loss by Butler, with respect to which no opinion was then given. From this decree, Colclough and his wife, and Elizabeth and Julia Gaven, appealed, so far as it related to the time at which the amount of the testator's property and value of the shares were to be estimated, admitting the construction put upon the will by this latter decree to be in other respects correct.

Leach and Roupell (for the Appellants) contended that according to the intent of the testator, as it was to be collected from the whole will, the proportion and shares were to be computed according to the amount of the property, not as it stood at the time of the testator's death, but as it stood at the time of distribution.

Romilly and Bell (for the Respondents) asked what was the time of distribution? The distribution was only to take place as each became entitled, and according to that construction they would take in different proportions; and as to the time of vesting and distribution, Mr. Bell cited Roebuck v. Dean, 4 Bro. Ch. Ca. 403. 2 Ves. 265.

Leach. The time is arbitrary, and there is no rule but the testator's intention.

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Judgment.

Appeal dismissed, and decree affirmed.

Solicitors: Agent for Appellants, Deare.

Agents for Respondents, Shawe, Le Blanc, and Shawe.

1815