Page:The English Reports v2 1901.pdf/13

REPORTS of CASES upon Appeals and Writs of Error determined in the High Court of Parliament. By Josiah Brown, Barrister-at-Law. Second Edition by Tomlins. Vol. IV.

EXECUTORS.

Case 1.—Alice Warburton and another,—Appellants; Peter Warburton,—Respondent [15th February 1702].

[Mew's Dig. x. 1278; xiv. 452, 507; xv. 1838.]

[A. makes two of his daughters his executrixes, and directs them to distribute a sum of £400 and also the residue of his personal estate, among themselves, and their brothers and sisters, according to their needs and necessities, as they in their discretion should think fit. The court restrained the exercise of this power, by decreeing a double share to the eldest son and heir, looking upon him as a necessitous person.]

** The other point determined in the case as stated in 2 Vern. 420. and 14 Vin. 279. c. 17. was, that where a term is limited to raise portions for younger children by rents and profits, the heir may have the portions raised by a sale, though the younger children oppose it; as they may insist on a sale if they think fit. The statement of the case in 2 Eq. Ca. Ab. 654. c. 5. and 16 Vin. 448. ca. 8. is not justified by this report: it should be thus—A younger child, whose portion, in case he died before 21, was directed to survive, attained 21, and received part of it, but died intestate in his father's life-time before the residue was paid. Held, that this residue did not lapse or sink into the real estate, but subsisted for the benefit of the other children; and ought to be added to the father's personal estate, and disposed of according to his will.—The case under this name in 2 Eq. Ca. Ab. 237. c. 3. and 6 Vin. 332. c. 30. is on a point totally distinct and unconnected.

The Lord Keeper's Decree was affirmed.**

2 Vern. 420. 1 Eq. Ca. Ab. 345. ca. 13. Viner, vol. 3. p. 437. ca. 7. vol. 6. p. 332. ca. 30. vol. 11. p. 198. ca. 13. vol. 14. p. 279. ca. 17. vol. 16. p. 448. ca. 8. **2 Eq. Ca. Ab. 654. c. 5.**

By indentures of lease and release, dated the 14th and 15th of November 1690, Robert Warburton, the father, conveyed all his estate to trustees, for a term of 99 years, subject to a power of revocation; remainder to his eldest son Peter, for life, with power, when seised of the freehold in possession, to make a jointure upon any wife, not exceeding £200 per ann. remainder to his first and other sons in tail male; remainder to Thomas, the second son, for life; with remainder to his first and other sons in tail male; remainder to John, the third son, for life, and to his first and other sons in tail male; remainder to his daughters Alice and Hester, and the heirs of their bodies; remainder to his own right heirs. The trusts of the 99 years term were declared to be, that the trustees should, out of the rents and profits, raise £1100 for the portion of Alice; £100 for the portion of Hester; £300 for the portion of Thomas; and £700 for the portion of John; with interest, at £6 per cent. until the portions were paid: and in case any of the younger children should die under 21, their portions were to be paid to the surviving younger children. And the eldest son, Peter, was to have £40 per ann. for his maintenance, until all these trusts were discharged.