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![handle is hein.slavery/ssactsengr0674 and id is 1 raw text is: MARTIN V. WILSON
inheritance alone ; but she was satisfied to take it in the way most beneficial to her
family.(2)
The residue of the personal estate was given to the trustees, to preserve the same
for John Mintridge, until he should attain twenty-one, and was then given to him ;
he died under twenty-one ; so that this gift was lapsed; then it was given to Mary
Mintridge, [324] when she should attain twenty-one, which is like the cases of legacies
given at twenty-one, and which are considered as not vested; if so, it is undisposed
of, and Mrs. Jones must take it as next of kin.
Lord Chancellor [Thurlow]. In this case the testator has been very anxious to
give no real estate till after the payment of the debts ; he proceeds, that if it be more
convenient for the family, the mortgaged estate shall not be sold, but other money
borrowed upon it, to pay the mortgaged debt. Is it possible then to throw the debt
upon the personal estate ' Can it be construed that he intended it to be sold, and
that so much as is more than the £300 should go to the legatee; that the £300 mortgage-
money should be paid by the personal estate, and the £300 which continues real, descend
to the heir at law 7 It would be too much to attribute this intention to him. Upon
the whole of the will, it seems, that he meant the personal estate should pay the other
mortgage ; but, as to this, that it should be exonerated, for the benefit of the legatees.
But although the intent was that the legatee should take the personal estate,
exempted from the mortgage debt; it does not follow that the next of kin shall take
it so. The legatees being dead, it is the same thing as if he had said nothing in his
will about his personal estate. (See Waring v. Ward, &c., referred to by note (1), et
per Sir W. Grant, M. R., in Hancox v. Abbey, 11 Yes. 187, et seq.) It must devolve
in the ordinary way, as if it stood without any expression of a desire to exempt the
personal estate; and then the personal estate must be applied. (Reg. Lib. 1790,
A. fol. 635.)
(1) Vide S. P. Waring v. Ward, 5 Vesey, 670, &c. The like was also determined
in Noel v. Lord Henley and others, per Ch. Baron Richards, in the Court of Exchequer,
10th May 1819: which case will be soon published in Mr. Daniel's Exch. Rep. 1 vol.
It will be seen that the devise of the real estate, there, seemed to afford a most strong
argument that it was to bear the burthen of the charges at all events : and it was ably
contended by Mr. Lovat, that the fact of lapse, and all matters relative to the personalty,
had nothing to do with the question. The parties, therefore, appealed to the House
of Lords : which matter is still pending. Upon the principal case, &c., vide per Sir
W. Grant, M. R., in Hancox v. Abbey, 11 Yes. 187, 188, 189.
(2) The point not having been argued here, would seem to weaken the force of
this as a complete determination; which is noticed by Sir W. Grant, M. R., 11 Ves.
188. His Honor, however, relies upon the strength of Lord Thurlow's opinion against
exonerating the personal estate, as exemplified in the Duke of Ancaster v. Mayer, antea,
1 vol. 454, &c.: and Waring v. Ward, 5 Ves. 670, settled the question.
MARTIN against WILSON. Lincoln's Inn Hall, 1st Aug. [1791].
[Disapproved, In re Smith's Trusts, 1878, 9 Ch. D. 121.]
Gift of a share over, to the children of my late cousins W. U. and J. U., share and
share alike, at their respective ages of twenty-one: this is a tenancy in common
among those then living : and one of them dying in the life-time of testator, that
share is lapsed.(1)
The testator made his will, 19th May 1777, and thereby, gave his real and personal
property in eight parts, to eight cousins and their issue; with respect to five of the shares,
he made the following provision, in case the said Elizabeth Underwood, Mary Under-
wood,(2) Robert Underwood, Thomas Underwood, and Elizabeth Berrick, or either of
them, should die without leaving issue, then I give and bequeath the part or [325] share
of him, her, or them, so dying without issue, of and in the said principal money, which
his, her, or their respective child or children, if they had had any, would have been
entitled to, unto the children of my late cousins William Underwood and John Under-
wood, equally, share and share alike, to be paid to them at their respective ages of
twenty-one years, and the interest thereof, to be applied in the meantime, at the dis-
cretion of my executors, for their maintenance and education.
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