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![handle is hein.slavery/ssactsengr0892 and id is 1 raw text is: BAGUE V. DUMERGUE
not inflexible. When the bequest is immediate and direct, and no life interest is [4613
given, there is but one period to which it can be referred, death before the testator ;
but- where there is .an intervening life interest, the words may have -reference to the
time of the termination of that interest, which perhaps is in most cases the more
probable intention, for a gift of a legacy generally presupposes the survivorship of the
legatee. The present case, however,-is that there are.two periods, to which the death of
the legatee, mentioned by the testator, may possibly be referred. Of these, it is perhaps
more likely that a testator would contemplate death in the lifetime of the tenant for
life of the fund than. death in his own lifetime; but when the occasion of the gift
is expressed to be for the trouble the executors may have in executing the will, it
becomes just as probable that the testator -meant to refer to the possibility of the death
happening in his lifetime, so that they could not become his executors, as that he
should refer to death at a subsequent period, after the trouble had been undertaken,
and whereby, upon that supposition, the executor would be deprived of the intended
reward. If the words had been only in the case of the death of either, I should
have considered, as I have said, that death in the lifetime of the testator was the
better construction. But the difficulty is on the meaning 'of the subsequent words,
in case of both their deaths, tothe -heirs, executors- and administrators of such
survivor. The testator must be taken to refer to the same time when he speaks of
the death of both, as when he speaks of the death of either; and if the words be
referred to death in the lifetime of the testator, the effect will be-that the testator
gives a legacy to the representative of the survivor, though that survivor dies in his
lifetime: and the reason assigned for the gift, the trouble of executing the will,
altogether fails, for no care or trouble could have been taken. This is not likely to
have been the testator's meaning. There is certainly, as it has been argued, no strict
expression taking away the original gift, unless it be [462] read as a gift of X400
upon a certain contingency, and of £200 upon another contingency. I confess I do
not feel clear upon the point; but it being necessary to come to some conclusion,
upon the whole I think I must adopt the conclusion to which the Master has arrived.
(462] BAGUE v. DUMERGUE. Feb. 14, 16, 1853.
[S. C. 1 W. R. 197.]
A testator bequeathed so much of his personal estate as when invested in stock would
produce £125 a year to trustees, upon trust to pay the dividends of such stock
to A. for life, with a direction that the capital stock should, at A.'s death, fall into
the residue of his (the-testator's) estate, and a provision that, if the stock should,
before the trusts were fully performed, be paid off or reduced, by which any loss
or deficiency might arise, the persons respectively interested therein should bear
and sustain such loss or deficiency out of their respective interests, upon their
becoming entitled thereto. The dividends on the stock were reduced during the
life of A. Held, that A. was not entitled to have the reduced dividends made
up to £125 a year.by a sale of a portion of the capital of the stock.
John Andre, by his will, dated in 1809, directed his wife and executrix, within
twelve months after his decease, to invest the principal sum of £5100 sterling, part
of his property, in or upon such one of the public stocks or funds as she should think
proper, in the joint names of herself and of Charles Dumergue, upon trust as to the
dividends, interest and produce thereof, to permit her (his said wife) to receive and
take the same for her life, for her separate use; and from after her decease he directed
the said Charles Dumergue to stand possessed of the capital of the said stocks, funds
and securities, upon trust, as to so much of the said stocks, funds and securities, as at
the time of investing the said sum of £5100 should, according to the then premium
or price of or for the same, have cost or been equivalent to £1000 sterling, part of the
said principal trust money, to transfer the same unto Louis Chaurron Caleas, provided
he should then be living, and have attained or should afterwards attain his age of
twenty-one years; but if he should not survive his (the testator's) wife, and also attain
1008
10 TFAP 461.](ViewImageLocal?handle=hein.slavery/ssactsengr0892&div=1&collection=&method=preview&ext=.png&size=3)