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![handle is hein.slavery/ssactsengr0770 and id is 1 raw text is: YATES V. MADDAN
says, 'In most cases the Court has disclaimed the laying weight on particular
,words, as the saying imprimis,' or, 'in the first place,' or a direction for the time of
-payment; all these are always disclaimed, and that upon just and solid reason;
because, if the Court was upon such'grounds to give a preference to one pecuniary
legatee, there would be no end of it, considering the variety of expression and the
incorrectness with which wills are frequently dawn.
With regard to the second question, I think the annuities are not payable out of
the corpus. As to the annuity to the brother, and the first annuity of £500 to the
daughter, the testator has expressly directed that they are to be paid out of the
interest and dividends of his trust estate ; and with respect to the second annuity of
£500 to the daughter, the words in the same manner appear to me to mean that
the second annuity is to be payable out of the interest and dividends of the trust
estate, without any deduction for legacy duty, or other deduction whatsoever, by
equal half-yearly payments. To hold that they relate to the words by which the
first annuity is given to the daughter's separate use, and by which her husband is
expressly excluded, would be unnecessarily to construe them as mere surplusage.
But independently of the words in the same manner the second annuity would
be payable in the same way as the first: in support of this I may observe that, in
Crowder v. Clowes (2 Ves. jun. 449), Sir R. P. Arden, Master of the Rolls, observed,
Lord Thurlow has determined that substituted and added legacies shall be raised
out of the same fund, and subject to the same conditions. [531] To say that the
bequest of the second annuity of £500 explains the bequest of the first annuity of
£500 is to make the more ambiguous and indefinite expressions explain the more
clear and definite ; in fact, it is to make the second bequest explain the first; although
the testator has himself shewn in express terms that the second bequest was to be
explained by the first, or, in other words, it is to reverse the natural and proper order
of things. No argument can be drawn from the substitution of the £20,000, as the
daughter is only to have the interest or dividends; and, indeed, to hold that the
annuities are chargeable on the cotus might have had the effect of taking away the
provision for the children.
For these reasons the decision of the Vice-Chancellor must be reversed.(1)
(1) Extract from the Order made in pursuance of the above Judgment.
Declare that, according to the true construction of the will of the testator, the
annuity of £500 first mentioned in the will, and the annuity of £500 secondly
mentioned in the will, are not entitled to priority over the legacy of £5000 also
mentioned in the will, and the legacy or sum of £800 appointed by Sarah Creswick
in respect of the sum of £1000 mentioned in the will over which she had a power of
appointment, or either of such legacies or sums ; but that in case it shall appear that
the estate of the testator is insufficient for the payment in full of the said two
annuities of £500 each and of the said two legacies or sums, then that the same
annuities and legacies ought to abate rateably. Declare that, during the life of the
Plaintiff Mary Ann Miller, or until she shall have a child, the said annuities of £500
and £500 are payable respectively out of the interest, dividends and income only of
the estate of the testator, and not out of the capital or corpus of the said estate; but
such declaration is to be without prejudice to any question in respect of any arrears
-of the said two annuities, or either of them, which may remain unpaid at the time
of the death of the Plaintiff, or at the [532] period of her having a child, and without
-prejudice to any application that may be made to this Court for the payment of such
arrears, or a proportionate part thereof, out of the capital or cojnts in either of such
events, or to any application in respect of the legacy of £20,000 in the testator's will
-mentioned, should the event happen in which such legacy is payable.
[532] YATES V. MADDAN. Jan. 21, Nov. 6,1851.
IS. C. 21 L. J. Ch. 24; 16 Jur. 45. See In re Grove's Trusts, 1859, 28 L. J. Ch. 537.]
A testator, by his will, gave an annuity in the following terms : I give, devise and
bequeath unto my son, E. C. Yates, one clear annuity of £100 per annum for and
3 MAC. & G. 531.](ViewImageLocal?handle=hein.slavery/ssactsengr0770&div=1&collection=&method=preview&ext=.png&size=3)