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![handle is hein.slavery/ssactsengr0818 and id is 1 raw text is: BYAM V. SUTTON
The result is that, in my opinion, the Plaintiff's case fails, and the bill must be
dismissed, with costs.
[556] BYAM v. SUTTON. July 7, 8, August 7, 1854.
[S. C. 18 Jur. 847; 2 W. R. 684.]
A life-estate and a life annuity charged on the same estate and devised to the same
person, held, not to have merged.
A testatrix devised to the Defendant, a married woman, a reversionary life interest
in an estate, and she bequeathed to the Defendant, for life and for her separate
use, an annuity charged on the same estate, and to commence immediately. She
also bequeathed other annuities similarly charged. At the death of the testatrix,
the prior limitation having failed, the Defendant became tenant for life in possession.
The Defendant afterwards became discovert, and the property having become
insufficient to pay all the annuities, Held, that a merger of the Defendants annuity
in her life-estate, by operation of law, would not be presumed.
The cor~us of an estate charged with annuities was held liable to their payment.
The testatrix, by her will dated in 1808, devised certain real estates in Antigua,
subject to and charged and chargeable with the payment of several annuities and
legacies thereinafter given to a trustee, and his heirs, to the use of her daughter
M. C., with remainder to her issue in tail (which limitation failed), with remainder to
the use of the Defendant Lydia Sutton, the wife of Robert Sutton, for life, with
divers remainders over.
The testatrix also gave to Lydia Sutton an annuity or yearly sum of £200 for life,
for her separate use, independent of her present or any future husband, with the
usual powers of entry, distress and sale for recovery of the same. And the testatrix
gave to Alicia Byam, [557] the Plaintiff, an annuity of £100 for life, from the death
of her mother, with like powers, and she gave several other annuities. And the
testatrix charged her plantations and real estate with the payment of the annuities
and legacies.
The testatrix died in 1810, and the limitation, prior to that to Lydia Sutton,
never having taken effect, she immediately, on the death of the testatrix, became
tenant for life in possession of the estates, as well as entitled to the annuity of £200,
payable thereout to her separate use. Her husband died in September 1846.
The Plaintiff also, on the death of her mother, in 1814, became entitled to the life
annuity of £100 a year charged on the estates.
In 1835 the sum of £1736, 9s. 7d., awarded as compensation for slaves on the
estates, was invested in £1989, 10s. 3d. consols, in the names of Lydia Sutton and
her daughter, and, in October 1846, they sold out £600, part thereof, and the latter
applied the produce of the sale to her own use.
The Plaintiff's annuity was duly paid till 1847, when it fell into arrear. The
annual proceeds of the estates, which, at the death of the testatrix, averaged £4000,
had latterly become unproductive, and the £1389, 1Os. 3d. consols, being the remainder
of the compensation money, formed the only fund available for the payment of the
annuities.
The Plaintiff filed her bill to have the arrears and future payment of her annuity
paid out of the dividends of the stock, or if necessary out of the corpus.
[558) Mr. R. Palmer and Mr. Simpson, for the Plaintiff. Mrs. Sutton was
entitled to an annuity of £200, and to a reversionary life-estate, which, in the events
that have happened, became a life-estate in possession; the annuity thereupon merged
in the life-estate, and the Plaintiff's annuity has priority over the Defendant's. The
rent charge and life-estate are clothed with. the legal estate under the statute, and
there is no inconsistency in giving Mrs. Sutton. the rent charge, and afterwards the
life-estate, for the latter might never have taken effect, but, having taken effect, there
is nothing to prevent the usual result of the union of two estates in the same person.
The limitation to the separate use of Mrs. Sutton ceased to operate in 1846, when her
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