Page:The English Reports v1 1900.pdf/1277

Lowther releasing also to the said Sir William Lowther, all his right and title to the annuity or rent charge herein-before given him of £1000 for his life, charged upon, and made payable to him out of my estate, in the manor of St. Bees; and it is my will, and I do hereby declare and direct, that in case, by the neglect or refusal of either of them, the said Sir William Lowther, or Sir James Lowther, what I have here recommended and directed is not made good and completed within six months after the said Sir James Lowther comes to be of the age of twenty-one years, such one of them two, by whose neglect or refusal it shall appear not to have been completed, shall not, after that time, have any share of the said £30,000 of the New South Sea annuities of the second subscription, but the whole of the said £30,000 New South Sea annuities shall belong to, and be the sole property of, such one of them two, who was willing and ready to have compleated and made effectual what I have before recommended to be done by them. And further it is my will, that in case what I have herein-before recommended is made good and compleated by the said Sir William Lowther, and Sir James Lowther, the said £30,000 New South Sea annuities shall be equally divided between them, each of them shall have £15,000 of it.

And the testator gave to the respondent all his capital stock in the South Sea company, called South Sea stock; also all his South Sea annuities, as well those called Old South Sea annuities, as those called New South Sea annuities, all both of the first and second subscription, except such of them as he had therein before given away: and he gave all his goods, chattels, and personal estate whatsoever (which was not thereby otherwise disposed of, or directed to be applied), to the said Sir William Lowther, whom he made residuary legatee, after payment of his debts, legacies, and funeral expences; and also made and appointed him sole executor of his will.

On the 2d of January 1755, the testator died, without revoking or altering his will, and soon afterwards Sir William Lowther duly proved the same, and undertook the execution thereof; and by virtue of the will, he entered upon and took possession of all the late Sir James Lowther's estates in the county of Cumberland, thereby devised to him, and continued to enjoy the same until the 15th of April 1756, when he died unmarried and without issue, having before his death made and executed his will, dated the 7th of April 1755, (which was about three months after the death of Sir James Lowther,) whereby, among other his real estates, he devised the said manor of Maske in Cleveland, in the county of York, and all other his estate in the said county, (being the same estate which he was directed or desired by the will of Sir James Lowther, to convey to the respondent and his heirs, in [189] exchange for the respondent's estate in the county of Cumberland,) to the use of his first and other sons, if he should leave any, successively in tail male; and in default of such issue, to the use of Edward Wilson, George Wilson, Thomas Wilson, and Daniel Wilson, equally as tenants in common, in tail male; with cross remainders amongst them; with remainder to the right heirs of Sir William Lowther for ever: and Sir William did, by his will, give all the rest and residue of his personal estate and effects, after payment of his debts, legacies, and funeral expences, to the appellant, and appointed him sole executor thereof: and the appellant, after his death, proved the will, and also procured letters of administration, with the will of the late Sir James Lowther annexed, to be granted to him by the prerogative court of Canterbury.

The exchange of estates recommended by Sir James Lowther's will never was compleated, and having by Sir William's death become impossible, the respondent was advised that upon Sir William Lowther's death, he was absolutely entitled to the £30,000 New South Sea annuities, given to encourage such exchange, together with all the dividends or interest which had been received for the same, or had grown due thereon, since the death of Sir James Lowther, the testator; in regard, that the not making of such exchange, was not owing to the neglect or refusal of the respondent: and thereupon, in Hilary term 1757, the respondent by his next friend (being then an infant) exhibited his bill in the court of Chancery, against the appellant and others, praying that the appellant might transfer, for the use of the respondent, all the South Sea stock, and South Sea annuities, both new and old, (except the sum of £10,000 in Old South Sea annuities, bequeathed to Sir William Lowther as aforesaid,) which the late Sir James Lowther was possessed of, or entitled to, at the time of his death, and might pay all such interest and dividends thereof as should appear to be due, to the respondent or for his use.