Page:The English Reports v1 1900.pdf/1333

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MONTAGU (DUKE OF) v. BEAULIEU (LORD) [1767]
III BROWN.

[277] Case 46.—George Duke of Montagu, and Others,—Appellants; Edward Lord Beaulieu, and Others,—Respondents [13th March 1767].

[Mews' Dig. iii. 2108; xv. 937.]

[R. devises all his real estates to his son J. for life, on condition that he should, in twelve months after the testator's death, suffer a recovery of his own estate, and settle it to certain uses mentioned in his father's will; but if he should neglect or refuse so to do, then the testator declared, that the devise of his real estate to his said son J. should cease and be void; and that in that case, the same should go according to the uses before limited, in the same manner as if his said son was really dead. J. suffered a recovery of his own estate, but declared the same to other uses than those mentioned in his father's will; he nevertheless continued in the possession of the devised estate. But it was held, that not having complied with the condition, he was not entitled to any benefit or advantage under the will.—A. devises an Exchequer annuity of £1000 to trustees in trust for his grandson John, for so many years as he should live, and from and after his decease, for such person as at the time of his death should be the heir male of his body; and in case there should be no such person, then in trust for such person as should be the heir male of the body of the testator's son John. The grandson John died an infant, and without issue; and about four years afterwards, the testator's son John had another son born, named George, who also died an infant, and without issue. Held, that the absolute property of this annuity vested in George, and that upon his death it belonged to his father, as his administrator.]

By the settlement made on the marriage of John late Duke of Montagu, (then Lord Marquis of Monthermer,) with Lady Mary Churchill, dated the 18th of January 1704, several estates in the counties of Northampton, Huntingdon, Southampton, Middlesex, Lancaster, York, Bucks, and Berks, were, as to part thereof, limited to Ralph Duke of Montagu, father of Duke John, for life; and as to other part, and as to the whole after the death of Duke Ralph, to Duke John for life; with remainder as to all the said estates, after the death of Duke John, to the first and every other son of Duke John in tail, with the reversion in fee to the right heirs of Duke Ralph. A power was given to Duke John, to make a jointure of £2000 a year, upon a second wife; and a provision of £40,000 for the younger children of this marriage.

Ralph Duke of Montagu, by his will dated the 21st of August 1707, after directing all his debts to be paid, except such as were due upon mortgage, which he directed his estates mortgaged should stand charged with; gave and devised all his real estates whatsoever, to his son Duke John for life, subject to the condition after mentioned, with remainder to trustees to support contingent remainders; remainder to John Lord Montagu his grandson, for life, remainder to trustees to support contingent remainders; remainder to the first and every other son of John Lord Montagu the grandson, successively in tail male; remainder to the second and all other sons of Duke John; successively in tail male; remainder to all and every the daughters of Duke John in tail, as tenants in common, with divers remainders over, with the reversion in fee to the testator's own right heirs. And as to all his jewels, plate, money, household goods, and the residue of his [278] personal estate, he gave the same to Charles Lord Halifax, and John Lord Somers, Edmund Dummer, and Thomas Dummer, in trust for his son Duke John, in case he should live to attain 22 years of age, and appointed the said trustees executors of his will, until his son Duke John should attain 22, and after his son should attain such age he made him sole executor of his will; but in case his said son should die before 22, then he willed that his executors should remain and continue his executors, and he then gave to them all his personal estate, not otherwise disposed of, in trust to lay out the same in a purchase of lands, to be settled upon the same persons and uses as his real estate was by his said will before given and devised.

And after reciting, that he was entitled to an annuity of £1000 issuing out of the Exchequer, he devised the same in the following words:

I do hereby give and devise

1317

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