1833. LOGAN บ. WIENHOLT. be paid or secured to her husband, was, by indentures of lease and release bearing date respectively the 20th and 21st days of May, 1821, conveyed and assigned to Albert Goldsmid, and the Appellants, John Daniel Birkett, and Charles James Nelson Birkett, for her separate use; and a supplemental bill was exhibited in respect thereof against Albert Goldsmid and the Appellants, John Daniel Birkett, and Charles James Nelson Birkett. The Appellant, Sarah Logan, under an order obtained for that purpose, afterwards appeared and put in a further separate answer to the amended bill; by which she stated, that Daniel Birkett the elder, after the date of the bond, acquired large property; of which he did not intend Sarah Wienholt, or her issue, to take the bulk, or any considerable proportion; and therefore bequeathed to the Respondents 60007. in satisfaction of all claims under the bond. That Daniel Birkett the elder intended to prevent the Respondents from taking any part of his estate, except what he might leave them by his will, or they might be entitled to under the strict construction of the bond; and he, therefore, disposed of the bulk of his property, so as to prevent his will operating thereon, and to limit the operation of the bond to a portion only of his property: that for such purpose, he employed solicitors and consulted counsel; and invested large sums of money in the purchase of real estate; and that one of his reasons for so doing, was to put the money so invested out of the reach of the bond; and she thereby admitted, that he also made assignments of leasehold property, for the purpose of disposing of the same in his life, so as not to be subject to his will. And that he assigned the 16,000l. bond debt, and the 2000l. mortgage debt, and a mortgage debt of 15231. 17s. 2d. on Saint Mary Hill estate; and that such assignments were made without valuable consideration. And she admitted, that Daniel Birkett the elder continued to receive the interest of the money secured by such bond to the time of his death. But she denied that it was agreed that the testator should have the power of disposition over the property settled and assigned; or that there was any secret or other trust as to the property, save as appeared by the conveyances and assignments; and she admitted that Daniel Birkett the elder transferred the 20,000l. navy 51. per cents., and 37,000l. 31. per cent. consols to Daniel Birkett the younger and herself, without any valuable consideration; and that it was the intention, if Daniel Birkett the elder had lived, to pay to him the dividends of such stock during his life; and stated her belief, that Daniel Birkett the elder meant that such stock should not be subject to his will or to the bond. The other Defendants to the bill having answered, the answers were replied to, and witnesses examined, who proved the several conveyances, assignments, transfers, and dispositions of property before detailed. On the 31st of May, 1825, the cause came on to be heard before the Lord Chancellor. By the decree of that date, it was declared, that the condition of the bond of the 8th day of April, 1772, wherein Daniel Birkett the elder bound his real and personal representatives, and which bond was executed previous to the marriage of John Wienholt 1833. LOGAN v. WIENHOLT. 1833. LOGAN v. WIENHOLT. and Sarah Jopson, the niece of Daniel Birkett the elder, contained an agreement entered into by Daniel Birkett the elder, in consideration, and expressed to be entered into in consideration of the intended marriage between John Wienholt and Sarah Jopson, which ought to be specifically executed by the court according to the true intent and meaning thereof; and that the parties intended to be benefited by such agreement were not bound to accept the penalty of the bond, or the legacy given by the will of Daniel Birkett the elder, but were entitled in equity to have the full benefit of the provision agreed to be made in manner in the condition mentioned. And it was declared that, Daniel Birkett the elder having died unmarried and without lawful issue, the sum of 2,000l. ought to be paid out of his estate, according to the agreement for the benefit of the parties entitled thereto, with interest at four per cent. from one year after his death, and that, exclusive of such provision, he ought to be considered as having engaged by will, or otherwise, to give or leave to or in trust for the parties meant to be entitled to the benefit of the agreement in the condition of the bond, so much in money, or in valuable effects, as he should give or leave to any one of his next of kin, or nearest relations, or any other person or persons, to be paid within twelve calendar months next after his decease; or if he should make no such bequest in his will, or the same should fall short of the greatest bequest in such will, then that his executors or administrators should, for the benefit of such parties as aforesaid, pay or deliver over such bequest, or make good any deficiency that the same should so fall short of. And it was declared, that it appeared to the Court that, according to the construction of the agreement contained in the bond, the Respondents electing to take under the agreement contained in the condition of the bond, and not to accept the 60007. bequeathed by the will, if they were more beneficially entitled under the agreement, were entitled to claim so much of the personal property of Daniel Birkett the elder, disposed of by his will, as would be equal in value to the largest amount of what was thereby bequeathed to any person or legatee, whether specific, pecuniary, or residuary legatee. And it was declared further, that the assignment of the 16,000l. bond debt, the 20007. mortgage debt, the transfers of the 37,000l. 3 per cent. annuities, and 20,000l. navy five per cent. annuities; and all other voluntary dispositions of personal property, remaining personal at the death of Daniel Birkett the elder, in which he reserved or retained a life-interest, or over the dispositions of which he had a controlling power of appointment or revocation, ought to be considered in equity, for the purpose of giving effect to the true intent and meaning of the agreement in condition of the bond, as having the same effect as if such sums of 16,000l., 2,000l., 37,000l. three per cent. annuities, 20,000l. navy five per cent. annuities, and such other personal property, so voluntarily disposed of, had been bequeathed by his will to the persons after his death respectively entitled thereto; and that the Respondents, electing as aforesaid, were entitled to claim out of his real and personal property devised and bequeathed by his will, and out of the sums, annuities, and personal property so voluntarily disposed of, so much as would be 1833. LOGAN บ. WIENHOLT. 1833. LOGAN บ. WIENHOLT. equal in value to the largest amount of what, by his will, any such assignment, transfer, or voluntary disposition, all or any of them, was bequeathed or given to, or bequeathed and given to any other person. And it was ordered and decreed, that it should be referred to the master in rotation, to enquire and state, whether Daniel Birkett the elder in his lifetime made any and what other voluntary dispositions as to his personal estate which would fall within the declaration as to voluntary dispositions thereinbefore contained, and to whom and under what circumstances. And it being admitted, that the sums of 37,000l. bank three per cent, annuities, and 10,500l. new four per cent. annuities, which had been substituted for 10,000l., part of the 20,000l. navy five per cent. annuities, were then standing in the names of the Appellant, Sarah Logan, and of Joseph Petty Toulmin and David Robert Remington, upon trust, to abide the event of the suit; and the said Joseph Petty Toulmin and David Robert Remington, by their counsel, consenting to act as the Court should direct, it was ordered that Alexander Logan and the Appellant, Sarah his wife, and Joseph Petty Toulmin and David Robert Remington, should transfer the 37,000l. bank three per cent. annuities, and 10,500l. new four per cent. annuities, into the name, and with the privity of the accountant-general of the Court, in trust, in the cause; and pay the dividends to accrue thereon until the transfer, in like manner; but such transfer and the declaration thereinbefore contained as to the 37,000l. bank 31. per cent. annuities, and 20,000l. 51. per cent. annuities, were to be without prejudice to the ques |