66 "to claim so much of the testator's personal property, disposed of by his will, as will be equal in value to the largest amount of what is "thereby bequeathed to any person or legatees." If it had stopped at this point, there would have been no doubt; or even had it gone further, and said "whether specific or pecuniary," there would have been no objection; but the words "or re"siduary legatee" are added; and his Honour the Vice-Chancellor removes all doubt with respect to the import of these words, by declaring, "That according to the true construction of the agreement contained in the condition of the said "bond, testamentary dispositions of freehold, and copyhold, and leasehold estates, and dispositions, which, by the decree in this cause, are declared "to be of the nature of testamentary dispositions, "are within the intent and meaning of the said "agreement:" and he declared that all the "several freehold and copyhold estates purchased "by the testator after the execution of the said "bond and mentioned in the second schedule to "the said separate report of the 18th of June, "1826, are to be considered in equity for the "purpose of giving effect to the true intent and "meaning of the said agreement, as if the said "real estates had been given or devised by the "said testator's will; and it appearing that the late "defendant, Daniel Birkett the younger, was the person to whom, by such testamentary dispo"sitions as aforesaid, or dispositions in the nature "of testamentary dispositions, the largest benefit "was given, the Court ordered that it be referred "to the Master to whom this cause stands re"ferred, to compute what, at the time of the tes 1 1833, LOGAN บ. WIENHOLT 1833. LOGAN V. WIENHOLT. "tator's death, would have been the amount and "value of the benefits which the said Daniel "Birkett the younger would have taken under "such several dispositions as aforesaid, according "to the declarations contained in the decree made "on the hearing of this cause and in this order, if "the said bond had not been made; and the "Court declared that the plaintiff and the defend"ant, John Birkett Wienholt, were entitled to "stand as specialty creditors upon the estate of "the said testator, for a sum equal to such amount "and value, with interest thereon, at four per "cent. per annum, from the end of a year from "the death of the testator." Now your Lordships perceive, that the consequence of these declarations, taking them both together, and making no exception as to the residue, would be merely this, that the decree would take in, and does, as it now stands, take in, beyond all doubt, the residue, as well as the legacies, and the gifts, conveyances, or assignments, and so forth, in the nature of legacies; and it makes, the whole together, the measure of Sarah Wienholt's claim. Thus it adds to Daniel Birkett's gift of 75,000l., stock and money, taking it in round numbers, his legacy of 2500l., and then, to that 77,500l., it adds the residue, say 10,500%. in round numbers; and having thus obtained the sum of 88,000l., it ascertains that to be Sarah Wienholt's right under the agreement, and orders her to stand on the whole estate a specialty creditor for that sum, with interest, from March, 1818. In other words, no sooner is the residue, among other gifts and bequests, used for the purpose of the calculation, and for an instant, as it were, appropriated to Daniel Birkett the younger, as part of his share under the will, than it is suddenly taken from him and given to Sarah Wienholt, as if the bond had been read or ought to be read, not that she should have a sum equal to the greatest bequest, or should have as much as he should give and bequeath by such will to any other his next of kin or others, but as if it were to be read "equal to the greatest intended bequest," or "so much as he should wish to give," or "so much as he should mean to give, or intend, or desire to give, or affected to bequeath, or would have bequeathed if he could," but for the bond. It is plain that, by the greatest bequest, must be understood to mean, the greatest effective bequest; and by so much as he should give or bequeath must be understood so much as he should so bequeath that the legatee might by possibility take: that Sarah Wienholt was to be, in plain words, as well off as any one of the objects of his bounty should really be by his will, not as he would wish any one to be: she was to be equal to the best of the legatees, but not to take as much in reality as any other proposed legatee would take apparently under an ineffectual bequest. Another consequence would be, that in no conceivable way could he ever dispose of the residue to any one except Sarah Wienholt, if it exceeded the greatest single legacy; because, according to the decree, whoever took it would be the greatest legatee, and must give it all up immediately to Sarah Wienholt. It is used for the purpose of increasing the share of the residuary legatee as a measure of Sarah Wienholt's claim, and for that purpose it operates effectually and permanently; but as to the residuary legatee himself it only operates for an instant; for 1833. LOGAN บ. WIENHOLT. 1833, LOGAN บ. WIENHOLT. it is no sooner used for the purpose of calculation, to find out who is the largest, and to what amount he is the largest legatee, than it is instantly transferred over and given to Sarah Wienholt: it is more than taken away, as my noble friend reminds me-it is made a specialty debt upon the estate; and Sarah Wienholt, in respect of the residue thus momentarily given, or supposed to be given, for the purpose of calculation as it were, is to stand as a specialty creditor upon the estate, to the exclusion of all simple contract creditors; an effect, I believe, in the bequest of a residue, never before heard or thought of..... As to that part of the decree which orders Sarah Wienholt to stand as a specialty creditor, the most extravagant consequences are these: First, that in order to make her equal she is to take all, supposing that the residuary legatee has no other legacy; and next (which is a case that might very well happen), that the residuary legatee loses all, so as to make him, instead of being equal, which is the manifest intention and purpose of the instrument, the most unequal; and, lastly, that the person who was the principal object of the testator's bounty would lose the whole bounty, while the other would take the whole. This last consequence, however, is to be duly considered; since, according to the observations which I set out with, if you find it to follow necessarily from the agreement, and it is requisite to give the party her rights under that agreement, it signifies nothing at all that that conclusion would defeat the intention of the testator in his will. You must look at the intention so far only as it is consistent, with and not repugnant to the agreement. Now it may be safely asserted, that there is no instance of the intent of one of the parties to an agreement being so completely defeated as this construction would effect. If the land, stock, and bond, were out of the question, and if Daniel Birkett the younger only took the legacy of 25007. besides the residue, then the equality, to secure which was the only object of the bond, and to secure which ought to be the principal object of your Lordships' judgment, could be easily attained by dividing the residue into two parts, one of which would be 2500l. more than the other; as if, for instance, the residue were 10,500l., by giving Sarah Wienholt 6500l., and Daniel Birkett the younger 4000, Daniel Birkett's legacy of 2500l. being added to that amount of the residue, would make Sarah Wienholt take exactly as much as Daniel Birkett the younger. But treating the stock and bond and lands as so much increase to his legacy, we have a much larger sum. It is needless to trouble your Lordships with the calculation of such portion of it as is equal to Daniel Birkett the younger's real interest in the estate at the time. of his uncle's death. To make Sarah Wienholt's equal to his, she must take as much as he does. Then we ought, first of all, to ascertain what Daniel Birkett the younger takes, independent of the residuary gift, either directly under the will, that is, 2500l., or by gift, or by conveyance declared to be in fraud of the agreement, and to be treated as testamentary. This includes the value, at Daniel Birkett's death, of Daniel Birkett the younger's interest in the 57,000l. stock transferred to him and his wife jointly, and the bond for 16,000l. assigned to Daniel Birkett alone; it also includes the value 1833. LOGAN บ. WIENHOLT. |