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![handle is hein.slavery/ssactsengr0887 and id is 1 raw text is: FAULKNER V. DANIEL
[199] FAULKNER V. DANIEL. Nov. 6, 10, 15, 16, 17, 18, Dec. 7, 1843.
[For previous proceedings, see 10 L. J. Ch. 33. See Dowdeswell v. Dowdeswell,
1878, 9 Ch. D. 297.]
The testator, by his will, charged his debts and legacies upon his real and personal
estate, and gave such real and personal estate to trustees upon trust for his nephew
for life (to whom also he gave a legacy), with remainder to the first and other sons
of the nephew successively in tail male, with remainder to the second and every
other son of the testator's brother successively in tail male, remainder to the
testator's own right heirs ; and added- and upon this last-mentioned contingency,
failing heirs male of my said brother, and of my said estate going to my right heirs
more remote as aforesaid, then I do hereby charge, subject and make liable my said
estate with the payment of the sum of £5000 to my niece. The testator died in
1775, leaving his brother his heir at law. The nephew entered into possession of
the real estate, which consisted of a plantation in Jamaica, subject to a mortgage
created by the testator in 1765. The brother afterwards died, leaving the nephew,
his only son, and then heir at law of the testator; the nephew died in 1822 without
issue male. The bill was filed in 1837 against the mortgagees and the devisees of
the nephew to obtain payment of the niece's legacy of £5000. Held,
That, on the death of the nephew without issue male, the event happened on which
the niece would become entitled to the legacy of £5000 ; and that it was not too
remote.
That the nephew was only bound in his lifetime to keep down the interest of the
debts and legacies; and that he was eItitled to keep on foot, as subsisting charges
against the real estate, the principal of the debts and legacies paid off by him, and
also his own legacy.
That an administrator of the nephew, to whom letters of administration had been
granted limited to the purposes of the suit, was a sufficient representative of the
personal estate of the nephew in the cause.
That the heir at law of the survivor of the trustees appointed by the testator, and the
personal representative of the testator, should properly be parties to the cause; but
the Defendants not having, by plea or answer, objected that such heir or personal
representative were necessary parties, the Court would, under the 40th Order of
August 1841, in the circumstances of the case, make a decree saving their rights.
Semble, an examined copy of a letter of attorney, inrolled in the Office of Record in
Jamaica, is not admissible in evidence (without more) ; although an examined copy
of a deed so inrolled is, by force of Acts of the local Legislature, admissible.
The Plaintiffs were the personal representatives of Dame Janet M'Leod, and
claimed to be entitled to a legacy of £5000, bequeathed to her by the will of John
M'Leod, who died in 1775.
The testator, John M'Leod, was seised in fee-simple in possession of a plantation
in Jamaica, called Colbecks, and was possessed of some personal estate. Colbecks was,
both at the time the testator made his will and at his death, subject to a mortgage
created by the testator in the year 1765. The testator, by his will and a codicil
thereto, after charging his real and personal estate with the payment of his debts and
several annuities and legacies, including a legacy of £1500 to his nephew John, the
son of his brother, Donald M'Leod, gave his real and personal estate to trustees, upon
trust, in de-[200]-fault of issue of his own body, as therein mentioned, for his said
nephew John, for life, with remainder to the first and other sons of John successively,
in tail ;male, with remainder to the second and every other son of Donald M'Leod
successively in tail male, with remainder in trust for the testator's own right heirs.
The testator then proceeded to bequeath the legacy in question in the cause in the
following words: And upon this last-mentioned contingency, failing heirs male of
my said brother, and of my said estate going to my right heirs more remote as
aforesaid, then I do hereby charge, subject and make liable my said estate with the
payment of the sum of £5000 sterling, to my said niece, Janet M'Leod, over and
355
3 HARE, 199.](ViewImageLocal?handle=hein.slavery/ssactsengr0887&div=1&collection=&method=preview&ext=.png&size=3)