Page:The English Reports v1 1900.pdf/1316

the interest or dividends of the £500 three per cent, annuities, was given by the testator to his daughter Mary, in lieu of her share of the residue, which clearly shewed she was to have no part of it; and yet by the construction put upon the will and codicil, if she had outlived her father, she would have had the interest of the £500 and a part of that very third of the residue in lieu of which it was given, and which the codicil had taken from her. That it appeared by the will, that the testator meant to dispose of his whole estate, and the codicil showed no alteration of that intention; on the contrary, though it made an alteration in the objects, yet it confirmed his intention to dispose of the whole, and not to die intestate as to any part of his estate. It was therefore hoped, that so much of the decree as tended to deprive the appellants of the whole clear residue of the testator's personal estate, would be reversed; and that the respondent's bill, so far as it claimed any part or share thereof, would be dismissed.

[250] On the other side it was contended (C. Yorke, R. Clayton), that if the devise in question was considered merely on the will, it was a devise of the residue of personal estate to three persons as tenants in common; in which case, if one of the legatees dies in the lifetime of the testator, his share is lapsed; or if the will be revoked as to such share, it becomes undisposed of, so as to be distributable amongst the next of kin, according to the statute. It is entirely different from the ease of residuary legatees taking as joint-tenants; in which case, the lapsed share of a legatee dying before the testator, or such share revoked by a codicil, accrues to the other joint-tenants. But if this devise was considered on the codicil, which revoked the share given by the will to Mary, it was manifest, that the words of the codicil only confirmed the will in all other things, without making any new devise of the revoked share, or giving to the appellants any greater interest than that third, which was given to each of them respectively by the will. If, however, the appellants should claim the revoked share of the residue, not only as residuary legatees, but in the capacity of executors; the answer was, that the testator having given particular legacies to each, and particular shares in the residue, by express devises, he must not be understood to have intended more, without express words, or clear indications of further bounty; and it was manifest, that having devised his whole estate by his will, he meant that his executors should have the office and trust of executors, but that they should take nothing beneficial in that capacity. It was therefore hoped that the decree would be affirmed, and the appeal dismissed with costs.

Accordingly, after hearing counsel on this appeal, it was ordered and adjudged, that the same should be dismissed, and the decree therein complained of, affirmed. (Jour. vol. 30. p. 329.)

In the year 1722, a treaty of marriage was entered into between the Rev. William Lightburne and Ann Taylor, widow; and Mr. Lightburne being possessed of a living worth £300 a year, and Mrs. Taylor having a jointure of £80 a year settled on her by a former husband, it was agreed that no further provision should be made for her by way of jointure, or otherwise; but, in order [251] to make some provision for the issue of the intended marriage, an indenture tripartite was executed previous to the marriage, dated the 6th of October 1722, between the said Ann Taylor of the first part; the Rev. Archdeacon Wittingham and Benjamin Everard, Esq. of the second part; and the said William Lightburne of the third part; by