Vigor v. Harwood. sister for her life, I give, devise and bequeath the same and every part thereof unto the said John Harwood and William Apletree and to the survivor of them, his heirs, executors and administrators, according to the respective qualities of my said real and personal estate, upon trust, nevertheless, as soon as conveniently may be after my decease, either publicly or privately, and for the most money that can be had or gotten for the same, to sell and dispose of all and singular my said manors, messuages, lands, tenements, tithes, hereditaments and premises, either together or in parcels, as they, my said trustees, or the survivor of them, or the heirs, executors, or administrators of such survivor shall think proper and most for the benefit of the person and persons to be interested in the produce thereof by and under the trusts of this my will; and in trust, as to the net produce of all such sale and sales, together with the intermediate rents and the surplusage, if any, of my general personal estate, after payment and discharge of my funeral and testamentary expenses, and all other my just and lawful debts, and subject to the legacies herein and in the schedule hereto mentioned and contained, to pay one moiety or half part thereof unto my nephew, William Vigor, to and for his own sole use and benefit as a vested and transmissible interest; and upon further trust to place out and invest the other moiety or half part thereof, in the names of my said trustees or of any new or other trustees to be appointed under the powers of this my will, on government or real security, during the term of the natural life of my said nephew, and to apply and pay the interest, dividends and produce thereof, half-yearly or otherwise as the same shall become due and payable, unto my said nephew for his own sole use and benefit; and, upon and after the decease of my said [*174] nephew, to *call in the said trust moneys so directed to be invested at interest as aforesaid, and apply, pay and divide the same to and amongst all and every the children of my said nephew lawfully to be begotten, if more than one, equally, share and share alike, and, if there shall be only one such child, then the whole to such child; and, in default of and for want of such children or child of my said nephew William Vigor v. Harwood. Vigor, or, being such, all of them should die in his lifetime without leaving lawful issue then living, in trust to continue the same at interest during the life of the widow of the said William Vigor, in case he shall leave a widow him surviving, for and during the term of her natural life: and, from and after her decease, or in case then there shall be no such children or child of the said William Vigor him surviving, or, being such, all of them shall be then dead without leaving lawful issue, in trust to pay, apply and divide, the said principal trust moneys, unto and amongst such person and persons as shall then be the next of kin of me the said Edward Lane, nevertheless to the utter exclusion of my wife, Catherine Lane, now and for many years past living apart from me, and any children she has or may have. Provided always that, if any or either of the children of my said nephew, William Vigor, shall happen to die in his lifetime leaving lawful issue, the share and shares of such children or child so dying, shall go to and amongst such issue equally, to take per stirpes, and not per capita; and, in default of such issue, to and amongst the survivors of the said children of my said nephew, William Vigor, if more than one, but if there shall be only one such surviving child, then the whole to such survivor." And the testator directed that the survivor of his said trustees should, as soon as conveniently might be after the decease of his co-trustee, proceed to the nomination and appointment of some *new trustee, and so on from time to time while [*175] the trusts of his will should remain unaccomplished; and empowered his trustees, from time to time, to lease, manage and conduct the business of his said estates in the best possible way, according to their judgment and discretion, until they should be sold as aforesaid. The testator died in February, 1826. The trustees and execu tors entered into the possession or receipt of the rents of the testator's real and leasehold estates; and possessed themselves of his personal estate, which was insufficient to pay his furneral and testamentary expenses, debts and legacies; and they afterwards sold the whole of the real estates except the estates in Bucking Vigor v. Harwood. hamshire, of which they were still in possession: and, out of the moneys produced by those sales, and arisen from the testator's personal estate, they paid the testator's funeral and testamentary expenses and debts; and they invested the residue in government or real securities. The bill was filed by William Vigor, the testator's nephew, (and who had become his heir and sole next of kin,) against the trustees and executors of the will and the plaintiff's two children, one of whom was an infant; and, after stating as above, it alleged that the trustees were about to sell the estates in Bucking. hamshire and to wind up the testator's affairs: but that doubts had arisen touching the application of the income of the testator's real and personal estate from the time of his death: that it was contended, by or on the part of the defendants, the children of the plaintiff, that a moiety of the income of the real and personal estates, from the time of the testator's death until the sale and investment and payment of his real and personal [*176] estates according to the trusts of his will, (subject to any proper application of the income, if necessary, towards the payment of his funeral and testamentary expenses, debts and legacies,) ought to be invested, pursuant to the trusts of the will, in government or real security, for the benefit of the plaintiff and his children. But the bill charged and prayed the court to declare that, according to the true construction of the will, the plaintiff (subject, if necessary, to the testator's funeral and testamentary expenses, debts and legacies) was entitled, for his absolute use and benefit, to the whole of the rents and profits of the freehold, copyhold and leasehold estates, from the testator's death until the sale of those estates; and that, subject as aforesaid, the plaintiff was also entitled to the income, from the death of the testator, arising on all such parts of the testator's personal estate as, at the time of his death, produced income, and also to the income arising from other parts of the personal estate as had been realized and invested by the trustees, from the rerespective times of such investments, and that the amount of Vigor v. Harwood. such rents and profits and income might be ascertained and paid to the plaintiff. Mr. Knight Bruce and Mr. Hislop Clarke, for the plaintiff, contended that no part of the income arisen from the real and personal estates from the testator's death, ought to be invested, on securities, for the benefit of the plaintiff and his children; but that the whole of it ought to be paid to the plaintiff. They relied on Noel v. Lord Henley, (a) and Sitwell v. Bernard.(b) Mr. G. Richards and Mr. Freeling, for the plaintiff's children, said that the will contained an express direction that the *real and personal estates should be sold as soon as con- [*177] veniently might be after the testator's death; and that, after payment of his debts, &c., one moiety of the net produce, and also of the intermediate rents, should be invested, by the trustees, in the usual securities, for the benefit of the plaintiff for his life, and, after his death, for the benefit of his children: so that the income of the testator's property was incorporated with and subjected to the same trusts as the capital; and the court could not hold that the plaintiff was entitled to the intermediate rents, without violating the plain language of the will. Mr. Allfrey, for the executors and trustees of the will. THE VICE-CHANCELLOR :-Taking the words of the will, which Mr. Richards has relied on, by themselves, it might be contended that they would amount to a direction to accumulate the intermediate rents: but the cases which have been cited by the plaintiff's counsel, warrant me in saying that a much more clear trust for accumulation would be required, in order to take away the enjoyment of the estates from the tenant for life. "Declare that, according to the true construction of the will, the plaintiff is entitled for his life, subject to the payment of the testator's funeral and testamentary expenses, debts and legacies, Lindsell v. Thacker. to the income of the real and personal estates, from the testator's death, until the sale and conversion thereof directed by the will." [*178] 1841 7th June. *LINDSELL v. THACKER. Will.--Construction.-Devise.-Trust-estate. Testator gave all his property whatsoever, and wheresoever the same might be at his decease, to his wife, for her sole use for ever; held, that an estate vested in the testator as a trustee, did not pass by the devise. JOHN THACKER and Catherine, his wife, being seised of a copyhold estate for their lives and the life of the survivor of them, with remainder to the heirs of the survivor, and Thacker having agreed to sell the estate to John Lindsell, he and his wife surrendered it to Lindsell and Margaret, his wife, for their lives and the life of the survivor of them, with remainder to Margaret and her heirs: and Thacker executed a bond, to Lindsell, conditioned for the further surrendering and assuring of the estate, by him and his wife and all persons claiming under them, to Lindsell and wife. Afterwards Lindsell died, leaving his wife (who was the plaintiff in the cause) surviving. Then, Mrs. Thacker died; and, after her death, her husband married again. In 1823 the husband died, having, in January of that year, made his will in the following words: "I hereby give and bequeath all my property whatsoever, and wheresoever the same may be at the time of my decease, unto my loving wife, for her sole use forever and I also further appoint my affectionate and loving wife, Ann Thacker, whole and sole executrix of this my last will and I further declare and appoint H. Markland and E. P. Sharpe, executors in trust of this my last will." The surrender by Thacker and his first wife not having, as it was alleged, affected the remainder which was then contingent, |