Wright v. Miller.

to report specifically what portion of the income shall be paid to Miller as before mentioned. Any surplus of income will be accumulated as directed by the original trust deed.

The decree will contain the usual clauses for enforcing its provisions. And as the details of the relief were not spoken to by the counsel at the hearing, they may be discussed on settling the draft of the decree.

In regard to costs, Mr. Miller must pay the complainant's costs in the original suit. He is not to be charged with any costs for the testimony relative to his incontinence. I have felt some difficulty in respect to the costs of Miller in the cross suit. On the one hand, his general conduct towards Mrs. Miller has been censurable. On the other hand, the cross bill is indefensible. I have concluded to charge her with his costs, excluding the costs of all the testimony which was taken. which is entitled in both suits, and that which relates to her licentiousness. The costs of the children in the cross suit may be paid out of the fund.

As to Mr. Campbell, it was stated at the hearing that the parties had stipulated as to the decree affecting him.

It appears that one of the parcels included in the deed to De Garmo, lot 1029, was omitted in the statement of that deed and of the subsequent proceedings thereon, in the original bill. Strictly, no relief can be decreed as to that lot in this suit, if the omission is insisted upon. I can perceive no advantage to the defendant, in urging its exclusion from the decree. He, however, has the right to exclude it, and in that case it will be omitted in the decree and account; without prejudice to a new bill in that behalf, by the children or any of them.

Barker, Executor &c., v. Woods.

BARKER, EXECUTOR &c. of HENRY MORGAN, v. Woods and others.

A testator directed his executors to invest a fund, the interest of which he gave to his wife, and after her decease, he gave the principal to his two children equally. Held, that the children took vested interests in the legacy at the death of the testator.

The equity of a married woman for a settlement, does not survive to her children; and where there is no contract for a settlement, nor any proceeding by the wife to enforce one during her life; the creditors of the husband are entitled to a legacy bequeathed to her, and her children have no equity to prevent its payment to them.

August 7; Sept. 2, 1843.

THE bill in this cause was filed by the surviving executor of Henry Morgan, asking the direction of the court as to the payment of certain proceeds of the estate, upon which there were conflicting claims. The testator died in December, 1813, leaving a widow, and two infant children, Henry P. and Ann Maria Morgan. By his will he directed his estate to be converted into money by his executors, and invested on good real security. He then gave one third of the interest thereof to his wife for life, and after her death, he disposed of the principal in these words: "After the decease of my said wife, I give and "bequeath the principal of the said one third part of my said

estate, unto my two children, Henry Purdy Morgan and. "Ann Maria Morgan, equally to be divided between them, share "and share alike." After another provision relative to his wife, he proceeded to give to his on one third part of the net proceeds of his estate, to be paid to him when he should obtain his majority, and the income in the mean time to be applied for his use. The remaining one third of the net proceeds, he gave to his daughter, to be paid to her on her becoming of full age or being married; the income thereof to be applied for her use in the mean time. There were cross remainders as to these two thirds, in case either of his children should die before they became 21 years of age without marriage or leaving issue.

Barker, Executor &c., v Woods.

The testator's daughter was married in 1826 to Richard H. Woods, and in 1830 she died, leaving one child, Ann Mary Woods, who is an infant, and is one of the defendants in this suit. The widow of the testator died in 1841. At this time, R. H. Woods was insolvent, and was indebted to Minott Mitchell in more than the half part of the third of the estate of the testator, which the executors had kept invested to pay the interest of it to the widow. After the widow's death, R. H. Woods assigned his late wife's half of that third part, to Elisha Horton, in trust for the infant, Ann Mary. Subsequently, M. Mitchell, having purchased a judgment against R. H. Woods, on which an execution was returned unsatisfied, filed a creditor's bill against him in this court, and enjoined the surviving executor of Henry Morgan, from paying over to the trustee Horton, the half part of the fund assigned to the latter by Woods. R. H. Woods then took out letters of administration on the estate of his wife, and assigned the fund to Mitchell.

The bill was filed against R. H. Woods, Ann Mary Woods, E. Horton, and Henry P. Morgan. On the death of the latter, pending the suit, his administrator, Thomas Purdy, and also Minott Mitchell were made parties by a supplemental bill.

Mitchell insisted that the fund in question vested in Ann Maria Morgan on the death of the testator; that it belonged to her husband, Woods; that his transfer of it to Horton, being voluntary, was fraudulent as against his creditors; and that by his subsequent assignment of it, or by force of the creditor's suit against him, Mitchell is entitled to receive the fund and apply it on his debt.

It was claimed on the other hand, that the bequest to Mrs. Woods lapsed in consequence of her death in the life-time of her mother, and on the death of the latter, went to Henry P. Morgan and the infant Ann Mary as the next of kin; and if it vested in Mrs. Woods, the infant is entitled to enforce her mother's equity for a settlement.

Smith Barker, for the complainant.

W. Silliman, for M. Mitchell and R. H. Woods.

Barker, Executor &c., v. Woods.

J. M. Webster, for E. Horton and T. Purdy.

I. O. Barker, for Ann Mary Woods.

THE ASSISTANT VICE-CHANCELLOR. First. As the will contained a positive direction to convert the property bequeathed by Henry Morgan into money and invest it, it is all to be regarded as personalty in equity.

There is no doubt but that the bequest in question to Ann Maria Morgan, regarding it as personal estate, vested in her upon the death of her father.

In 2 Will. on Executors, 776, the rule is thus expressed--"Where a person bequeaths a sum of money, or other personal "estate, to one for life and after his decease to another, the in"terest of the second legatee is vested, and his personal represen"tatives will be entitled to the property, though he dies in the "life-time of the person to whom the property is bequeathed for "life."

The case of Pye v. Linwood, (6 London Jurist Rep. 618,)(a) before Sir Knight Bruce, V. C., is directly in point. And see Shattuck v. Stedman, (2 Pick. R. 468,) and Birdsall v. Hewlett, (1 Paige R. 32, per Chancellor.)

Second. The legacy having vested in Mrs. Woods, can her infant daughter now insist upon a settlement out of it, as the mother doubtless could have done, were she in life and a defendant here?

I have examined diligently to see if I could find some valid ground to sustain this alleged equity in the infant, and regret that my search has proved unavailing. It is clear, that when the mother has taken no step to enforce her equity for a settlement, and has no contract for it, her children surviving her have no claim upon the estate as against her husband; that the equity for a settlement is personal to the wife, and does not survive to her issue.

There were some early decisions and dicta in England, which favored the extension of this equity to the children of

(a) And see Scurfield v. Howes, (3 Bro. C. C. 90.) 1 Roper on Leg. 500.

Barker, Executor &c., v. Woods.

the wife. Thus in Wytham v. Cawthorn, (1 Eq. Cas. Ab. 392, pl. 1,) in a suit by the husband, as administrator to his wife against trustees for her portion, it was decreed to be settled on him for life, then on his son for life, then to the issue of the son, and failing issue, the father to have it should he survive the son.

In Grosvenor v. Lane, (2 Atk. 180,) Lord Hardwicke said that Lord King had previously made a decree in that matter, ordering a maintenance for the infant child out of her deceased mother's portion, against the husband, and he expressed his approval of the equity thereby established. There were letters in that case, which went to establish the right of the child. against the husband. Sir Thomas Plumer, in Lloyd v. Williams, hereafter cited, shows from the Register's Book, that Lord King's decree, referred to by the Chancellor in Grosvenor v. Lane, was made upon a deed settling the property in question. It is, therefore, no authority for the infant's independent equity.

It did not finally have the entire approval of Lord Hardwicke. For in Hearle v. Greenbank, (3 Atk. 717. S. C. 2 Ves. Sen. 298,) he said that he could find no case where the assignees of a bankrupt husband, after the death of his wife, were compelled to make a provision for her children out of her estate. He declined to say that it could not be done, but he distinctly said that there was no precedent for it.

Cockel v. Phipps, as it is reported in 1 Dick. R. 391, seems to be a decision that the issue of the wife have an equity for a settlement against her surviving husband. But the examination of the learned Vice-Chancellor, in Lloyd v. Williams, proves that the decree in Cockel v. Phipps was made upon articles for a settlement.

Since the year 1765, when Lord Northington decided Scriven v. Tapley, (2 Eden's R. 337; Ambler's R. 509, S. C.) the current of authority has been uniform against the independent equity of the children. In that case, the Master of the Rolls, Sir Thomas Sewell, had decided in favor of the equity of the issue. His decree was reversed by Lord Northington, who