Page:The English Reports v1 1900.pdf/1346

On the part of the respondents in the cross appeal, it was contended (C. Yorke, F. Norton), that under the devise in Duke Ralph's will, the whole property and interest in the Exchequer annuity did, upon the birth of George, the second son of Duke John, vest in such second son; it being the testator's intention, that the same should, after the death of his grandson John, and in the event of his having no issue male, go to such person as should first stand in his place as heir male apparent of the body of Duke John, to take lands from him by course of descent; and which person the testator intended should take the benefit thereof, in the life-time of his father Duke John; but such person not being in esse at the time of the testator's making his will, or at the time of his death, the testator could not make him tenant for life of this annuity; nor could he make him tenant in tail thereof, it being personal estate, without vesting the whole property of the annuity in him. Besides, it was evident from the words of the will, that it was the testator's intention, that such person should take the annuity for the residue of the term and estate therein; the consequence of which was, that, upon George's death, his interest therein devolved upon his father Duke John, as his personal representative.

After hearing counsel on these appeals, it was ordered and adjduged, that so much of the decree as dismissed the bill, so far as it related to the Exchequer annuity in question, with costs, should be affirmed; and that the residue of the said decree should be reversed. The House then pronounced the fol-[298]-lowing judgment:

And it is hereby declared, that John late Duke of Montagu was not entitled to the benefit of any bequest or devise, by the will of his father Ralph, from three months after he had suffered the recovery, the said John late Duke of Montagu never having complied with the condition annexed thereto, by re-settling his Warwickshire estate; and that the same ought to go in such manner and to such persons as is limited and directed by the proviso in the said will of Ralph Duke of Montagu; and that the respondents Lord and Lady Beaulieu ought to have a satisfaction out of the assets, real and personal, of John late Duke of Montagu, for what the respondent Lady Beaulieu would have been entitled to, had the proviso in the said will been taken advantage of, and effectually carried into execution. And it is hereby further ordered, that it be referred to a Master, to take an account of the personal estate of Ralph Duke of Montagu, which came to the use of John Duke of Montagu, after payment of the debts, legacies, and funeral expences of the said Ralph, or which he might have received without his wilful default; and also to take an account of the rents, issues, and profits of the real estate of the said Ralph, devised by his will, over and above the interest of debts chargeable thereupon, and all other outgoings which came to the hands or use of the said John, or which he might have received without his own wilful default; in the taking of which accounts, the Master is to make all just allowances; and also to take an account of the personal estate of the testator John late Duke of Montagu, which came to the hands of the defendants, Mr. Folkes his acting executor, and the Earl and Countess (sic orig.), or any of them, or to the hands of any other person by their or any of their order, or for their or any of their use; and that the said Master do likewise take an account of the said testator's debts, funeral expences, and legacies. And it is hereby further ordered and adjudged, that the said testator's personal estate be applied in payment of his debts and funeral expences in a course of administration, and then in payment of his legacies; and in case the said testator's personal estate shall not be sufficient for that purpose, that the premises comprised in the term of 99 years, created by the will of the said testator John late Duke of Montagu, or a sufficient part thereof, be sold or mortgaged, as shall be most convenient, with the approbation of the said Master, for the residue of the said term, wherein all proper parties are to join, as the said Master shall direct; and that all deeds and writings in the custody or power of any of the parties relating thereto, be produced before the said Master upon oath; and in case of a sale, that such sale be to the best purchasor or purchasors that can be got for the same, to be allowed of by the said Master; and that the bill be dismissed against the defendants the mortgagees with costs; and that the defendants Thomas Dummer, Edward Montagu, and William Folkes, have [299] their costs of this suit, out of the assets of John Duke of Montagu. And as to the plaintiffs and the other defendants, it is hereby further ordered, that there be no costs to this time; and that the consideration of the subsequent costs, and of interest in respect of any sums of money which may have come to the hands of