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![handle is hein.slavery/ssactsengr0872 and id is 1 raw text is: LYON V. COLVILLE
1 His Honor then called upon the counsel for the assignees to argue the question as
to the validity of the clause restraining alienation.
Mr. Koe and Mr. Tripp then argued that that clause was inconsistent with the
clause containing the gift to the children, and was, therefore, repugnant and void.
Admitting that the interest of the insolvent was contingent only, yet, with regard to
the doctrine as to restraint upon alienation, the case was the same whether there was
a contingent absolute interest or a vested absolute interest. Bradley v. Peixoto
Vs. 324), Brandon v. Robinson (18 Ves. 429), Green v. (448] Harvey (1 Hare, 428).
[THE VICE-CHANCELLOR. Bradley's case was an absolute interest in possession. The
case at the Bar is a contingent reversionary interest.]
THE VICE-CHANCELLOR. Whatever might have been thought of this point a
century and a half ago, I apprehend that decisions uniformly recognised as now binding
have in effect established that a clause worded as this clause is worded is valid. They
do not, perhaps, decide it in terms, but they do in spirit. Construing, therefore, this
will as I do, I must hold that the clause of forfeiture, or shifting clause, is good.
Mr. Koe then applied to the Court to have the costs of the assignee paid out of
the testator's estate, suggesting that he would be able to get no costs out of the
insolvent's estate. But
The Vice-Chancellor, after referring to Brandon v. Aston, said that he should make
no order as to the assignee's costs.
It being admitted that the presentation of the petition, the vesting order, and the
discharge under the Insolvent Act, took place during the life of the widow, and while
she was the widow of the testator's brother, George Churchill, and while there was
living a child of the widow, a minor, which minor afterwards attained the age of
twenty-one, declare that the share of the insolvent in the £5000 New £3, 10s. per
cent. Bank annuities went over to the other children of the said George Churchill
who were living when the youngest attained twenty-one.
[449] LYON v. COLVILLE. Nov. 9, 11, 25, 1844.
By the marriage settlement of W., an annuity of £800 Jamaica currency was settled
on his wife for life, and was subsequently charged on an estate of W., in that island.
W. afterwards made his will, whereby he charged his estates in a certain manner
with the payment of his debts; and then, after reciting the settlement, and that
he was desirous of making a larger provision for his wife, he gave her a rent-charge of
£2000 per annum for life, which he charged on the R. estate, and which was to be
in lieu of all dower and thirds. Upon the death of W., the widow released her
title, if any, to dower, and elected to take the £2000 annuity, and payments were
made to her on account of it by the executors. W., however, being at his death
largely indebted to the firm of W. & Co., of which he was a partner, that debt was
paid by his executors by means of a mortgage of the R. estate, and by the terms
of the mortgage deed the mortgagee was to hold the estate, subject to the several
annuities given by the will of W., but freed and discharged of and from the debts and
legacies charged upon the premises by the will, and of and from all other charges and
incumbrances whatsoever. The assets of W. turned out to be insufficient for payment
of all his debts. Held, that a portion of the payments made by the executors to
the widow must be ascribed to the annuity of £800 Jamaica currency, and were to
that extent good, but that the residue of such payments were not good against
the creditors of W. Held, also, there being certain arrears of the annuity of
£2000, and a fund in Court arising from the produce of the R. estate, that, as to
that part of the fund which was not applicable to the portion of the annuity
representing the annuity of £800 currency, the creditors of W. had priority over
the mortgagee, as well as over the executors of the widow.
The owner in fee of two freehold estates largely indebted by specialty and simple
contract devises one to A. B., in fee, charged with the payment of one-fifth, but
only one-fifth, of all his debts, and devises the other to C. D. in fee, charged with
1 COLL 448](ViewImageLocal?handle=hein.slavery/ssactsengr0872&div=1&collection=&method=preview&ext=.png&size=3)