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*CHAPTER THE THIRD.

OF THE TITLE OF AN EXECUTOR OR ADMINISTRATOR TO THE EXECU-
TORY AND CONTINGENT INTERESTS OF THE TESTATOR OR INTES-

TATE.

Contingent and executory interests, whether in real or personal estate, are transmissible to the representative of a party dying before the contingency, upon which they depend, takes effect (a).

Thus in Pinbury v. Elkin (b), the testator, in case his wife should die without issue by him, then, after her decease, gave 80l. to his brother; after the testator's death, the brother died in the lifetime of the widow, who afterward died without leaving any issue: The court (Lord Macclesfield) held that this possibility devolved to the executors of the brother, though he died before the contingency happened; and decreed the legacy accordingly with interest from the widow's death.

So in King v. Withers (c), the testator devised land to his son B.; but if he should die without issue male of his body, then living, or which might be afterward born, that then his daughter should receive at her age of twenty-one, or day of marriage, which should first happen, the sum of 3,500l. (over and above a portion bequeathed to her); but in case the contingency of the said son's dying should not happen before his daughter's said age, or day of marriage, that then she should receive that sum whenever such contingency might happen; and charged the said legacy or portion on the real estate: The daughter married, having attained her age of twenty-one, and died in the lifetime of her brother B., who afterward died without issue male: Lord Talbot decreed, that the legacy should be raised for the benefit of the administrator (the husband) of the daughter and he held, that though it did not absolutely vest, because it might never arise, yet it so far vested as to be transmissible to the representative. This decree was afterward affirmed in the House of Lords.

+ See American note at end of this chapter.

(a) Fearne, Conting. Rem. 554. 2 Saund. 388 n., note to Purefoy v.

Rogers. See also stat. 1 Vict. c. 26
(the Wills Act), s. 3.

(b) 1 P. Wms. 564.
(c) Cas. temp. Talb. 117.

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In Chauncey v. Graydon (d), legacies were devised to children, to be transferred to them at their respective ages of twenty-one, or days of marriage; and in case any of them should die under that age, or marry without consent, &c., his or her share should go to the others at their ages of twenty-one: Lord Hardwicke held, that a share accruing by the forfeiture of a child's marrying without consent vested in another who attained twenty-one, but died before such forfeiture, so as to entitle the personal representative of such deceased child to an equal share thereof, with the other surviving children; for (said he) where either real or personal estate is given upon a contingency, and that contingency does not take effect in the lifetime of the devisee, yet if real, his heir, and if personal, his executor, will be entitled to it: for though in law a possibility is not assignable, yet in equity, where it is done for a valuable consideration, it has been held to be assignable, and is transmissible to the representative of the devisee.

So in Peck v. Parrott (e), B., in consideration of natural love and affection for her niece, and to secure to her separate use her personal estate after her own decease, granted all her personal estate to trustees in trust for herself during her natural life, and after her decease, and payment of her debts and funeral expenses in trust for the sole and separate use of her niece alone, and not for her husband, or for such person as she should appoint; the niece died in the lifetime *of B.; and after B.'s death, her (B.'s) executor and residuary legatee filed his bill against the personal representative of the niece, for this personal estate Lord Harwicke said, that, under a trust, a contingent interest. might go to the executor or administrator, though not vested in the person during his life; and that in the same manner the contingent interest here would go to the representative of the niece; and accordingly dismissed the bill.

These cases, and others referred to in the note below (ƒ) establish the principle, that contingent and executory interests, though they do not vest in possession, may vest in right so as to be transmissible to executors or administrators. But it is obvious that where the contingency, upon which the interest depends, is, the endurance of the life of the party entitled to it till a particular period, the interest itself will be extinguished by the death of the party before the period arrives, and will not be transmissible to his executors or administrators. This consideration leads directly to that portion of the doctrine of (d) 2 Atk. 616.

(e) 1 Ves. Sen. 236.

(f) Barnes v, Allen, 1 Bro. C. C. 181.

3 Ves. 208. Perry v. Woods, 3 Ves. 234. Massey . Hudson, 2 Meriv.

130.

Lapsed Legacies, which has reference to lapse occasioned by the death of the legatee before the death of the testator, or before any other period, upon the arrival of which in the lifetime of the legatee, the right to the legacy depends. But it will be convenient to postpone the investigation of this doctrine, and to consider it hereafter, together with the subject of legacies generally.

power cannot be an appointee.

It may be observed in this place, that the executor or administrator The executor of of the object of a power cannot be an appointee under the object of it: Thus where a husband gives his wife a power of appointment of a fund in favor of his children, and a child dies without any appointment having been made to him, no part can be appointed to his executor or administrator (g).

(g) Maddison v. Andrew. 1 Ves. Sen. 59.

A residuary legacy to take effect on the death of a life tenant and subject to be defeated by his disposition of the property will pass, irrespective of the

contingency, to the personal representa-
tives of the residuary legatee on his
death before the life tenant.
Woodbury, 144 Mass. 542.

Welsh v.

*CHAPTER THE FOURTH.

OF THE CONTINUANCE BY THE EXECUTOR OR ADMINISTRATOR OF

ACTIONS COMMENCED BY THE TESTATOR OR INTESTATE.†

The practice with respect to the continuance of suits when the cause of action survives to the executor or administrator of the deceased is now regulated by Order XVII. of the Rules of the Supreme Court, 1883, which enacts :

"Rule 1. A cause or matter shall not become abated by reason of the marriage, death, or bankruptcy, of any of the parties Change of parties if the cause of action survive or continue, and shall not by death, &c. become defective by the assignment, creation, or devolution of any estate or title pendente lite, and, whether the cause of action survives or not, there shall be no abatement by reason of the death of either party between the verdict or finding of the issues of fact and the judgment, but the judgment may in such case be entered, notwithstanding the death.

"2. In case of the marriage, death, or bankruptcy, or devolution of estate by operation of law, of any party to a cause or matter, the Court or a Judge may, if it be deemed necessary for the complete settlement of all the questions involved, order that the husband, personal representative, trustee, or other successor in interest (if any) of such party, be made a party, or be served with notice in such manner and form as hereinafter prescribed, and on such terms as the Court or Judge shall think just, and shall make such order for the disposal of the cause or matter as may be just.

"3. In case of an assignment, creation, or devolution of any estate or title pendente lite, the cause or matter may be continued by, or against, the person to, or upon whom, such estate or title has come or devolved.

"4. Where by reason of marriage, death, or bankruptcy, or *any other event occurring after the commencement of a cause or matter, and causing a change or transmission of interest or liability, or by reason of any person interested coming into existence after the commencement of the cause or matter it becomes necessary or desirable + See American note at end of this Chapter.

[*774] [*775]

that any person not already a party should be made a party, or that any person already a party should be made a party in another capacity, an order that the proceedings shall be carried on between the continuing parties, and such new party or parties, may be obtained ex parte, on application to the Court or a Judge, upon an allegation of such change or transmission of interest or liability, or of such person interested having come into existence.

"5. An order obtained as in the last preceding rule mentioned shall, unless the Court or Judge shall otherwise direct, be served upon the continuing party or parties or their solicitors, and also upon each such new party, unless the person making the application be himself the only new party, and the order shall from the time of such service, subject nevertheless to the next two following Rules, be binding on the persons served therewith, and every person served therewith who is not already a party to the cause or matter shall be bound to enter an appearance thereto within the same time and in the same manner as if he had been served with a writ of summons.

"6. Where any person who is under no disability, or under no disability other than coverture, or being under any disability other than coverture, but having a guardian ad litem in the cause or matter, shall be served with such order as in Rule 4 mentioned, such person may apply to the Court or a Judge to discharge or vary such order at any time within twelve days from the service thereof.

"7. Where any person being under any disability other than coverture, and not having had a guardian ad litem in the cause or matter, is served with any such order as in Rule 4 mentioned, such person may apply to the Court or a Judge to discharge or vary such order at any time within twelve days *from the appointment of a guardian ad litem for such party, and until such period of twelve days shall have expired, such order shall have no force or effect as against such last mentioned person.

"8. When the plaintiff or defendant in a cause or matter dies, and the cause of action survives, but the person entitled to proceed fails to proceed, the defendant (or the person against whom the cause or matter may be continued), may apply by summons to compel the plaintiff (or the person entitled to proceed), to proceed within such time as may be ordered; and in default of such proceeding, judgment may be entered for the defendant, or, as the case may be, for the person against whom the cause or matter might have been continued ; and in such case, if the plaintiff has died, the execution may issue as in the case provided for by Order XLII., rule 23.

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