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![handle is hein.slavery/ssactsengr0713 and id is 1 raw text is: GASKELL V. HARMAN
GASKELL V. HARMAN. July 26th, 27th, 28th, 1803; Aug. 27th, 1805.
[Wood v. Penoyre, 1807, 13 Ves. 335 ; Johnson v. Crook, 1879, 12 Ch. D. 646
In re Sampson, [1896] 1 Ch. 635.]
6 Ves. 159.-The declaration of the decree, upon the principle, that the residuary
property vested only as it was received and converted into money, was reversed :
the Lord Chancellor's judgment being, that such an intention, though, if clearly
expressed, it must notwithstanding the inconvenience be executed, was not the
true construction upon the whole Will ; and is not to be collected, unless clearly
expressed. Preliminary inquiries directed.
The decree, as drawn up in consequence of the judgment pronounced at the
Rolls in this cause (reported 6 Ves. 159. See the note,.11 Ves. 508), declared the
Will of John Strettell established, &c.; that Alexander Forbes was not entitled to
a clear fifth part of [490] the residue of the estate and effects of the testator, unless
such fifth part had been ascertained before the death of the said Alexander Forbes ;
and, that the residuary legatees of Ann Forbes, his sole legatee, are entitled to a
proportionable share of such estate and effects only as had arisen at the time of
the decease of Alexander Forbes; that the residuary legatees of Strettell are entitled
to £25 per cent. upon the legacies given to them, to be discharged by way of dividend.
An account was directed of the personal estate of the testator Strettell, come to
the hands of his four executors: what upon the account should appear to have
come to their hands respectively to be answered by them or their representatives
respectively.
The Master was directed to state, what sums of money were in the hands of
Strettell's executors at the death of Forbes. An account was directed of the debts,
&c.; and an inquiry, which of the residuary legatees of Strettell are dead; and
when they died respectively.
From this Decree the Plaintiff appealed to the Lord Chancellor.
Mr. Lloyd, Mr. Romilly, and Mr. Ainge, for the Plaintiff; Mr. Alexander,
Mr. Stanley, and Mr. Toller, for the Defendants, in the same interest ; in support
of the Appeal. This Decree, adopting the very words of the Will, leaves the
question as doubtful, as it was upon the Will ; declaring, that Forbes was not entitled
to a fifth part of the residue, unless such fifth part had been ascertained before his
death; and that his residuary legatees are entitled to a proportionable share of
such estate and effects only as had arisen at the time of his decease. The ground
of the judgment appears to be, that the property [491] was not to vest, except as it
was received. Consider the consequences of such a decision : the fraud, to which it
leads : the temptation held out to executors to favor one legatee at the expence
of the others. The Master of the Rolls supposed, that Lord Thurlow in Hutcheon
v. Mannington (1 Ves. jun. p. 366) determined upon the expression might have
received: but the words of the Will are in the present, not the past, tense: may
have received : that is, before he shall have received: yet that was considered
as leaving it so open to favour one party, that it could not be supported ; that the
Court would not leave it in the power of the trustee to vary the trust. That case
was much considered, and the authority of it acknowledged by your Lordship
in Sitwell v. Bernard (6 Ves. 520). The difficulty, there stated byyour Lordship,
occurs in this instance. The principle laid down in Hutcheon v. Mannington is
very wise ; and was adopted for the sake of convenience, and to prevent the great
expence of taking the account in this way ; unless such a purpose is expressly
declared.
But it is not the true construction of this Will to say, that the residue is to vest
only, as it is received ; a construction so inconvenient, from the consequences of
taking an account, when each and every part was received, that the Court must
be compelled by express words to adopt it. It is certainly very difficult to attribute
a meaning to the words, or such of them as shall be then living. But, if they are
incapable of any sense, they must be rejected entirely ; and the property must
be considered as vested at the death. The words of the Will, shall be made or
arise, are strictly applicable, not to the receipt of the capital, but only to interest
and produce of personal estate; which has no existence, until it accrues; [492] and
1177
11 VES. SUN. 490.](ViewImageLocal?handle=hein.slavery/ssactsengr0713&div=1&collection=&method=preview&ext=.png&size=3)