Green v Rod
| Jurisdiction | England & Wales |
| Judgment Date | 21 June 1729 |
| Date | 21 June 1729 |
| Court | High Court of Chancery |
English Reports Citation: 25 E.R. 338
IN COURT, LORD CHANCELLOR.
[182] Saturday, June the 21st [1729]. . :. REHEAEINGS. Case 93.-green versus rod. In Court, Lord Chancellor. I devise to my wife all my lands, money, &c., to be freely by her possessed and enjoyed, provided, if she die without issue by me, that then £80 shall remain to my brother after her decease, the limitation over of the £80 is good. The second point in the case is, whether the legacy is not lapsed by the death of the legatee before the contingency happened. Swinburn is of opinion that it is, but that author (tho' generally clear) is so perplexed on that head, pag. 313, and the resolution in 2 Ventr. 347, which is subsequent in time, being contrary, on considering both, I think, that notwithstanding Swinburn's opinion, the legacy in this case is not lapsed, but is transmissible, notwithstanding the death of the brother before the wife. Mr. Solicitor General for the plaintiffs. ' Mr. Darley made his will, and thereby ' devised, inter aV, all the rest and residue of his goods, chattels, money, debts, plate, ' corn, grain, and implements of husbandry to his sister Mary, whom he made sole ' executrix of his will: But he declared, that his will and meaning was, that his goods, ' houshold-stuff, and implements of husbandry, and the farm in which he lived, for ' the remainder of the term, should be let and disposed of, and that the money arising ' thereby, should be put to interest for the use of his sister Mary, and if she died without ' issue, the money so put out, was to be equally divided between his sisters Teresa ' and Frances, after the decease of Mary, in manner as aforesaid.' The testator died, Mary intermarried with the defendant, and is since dead without issue, and the single question is, Whether the limitation over to Teresa and Frances is good f and I think it is; for the limitation over of a personalty on a contingency, to arise within a life, is allowed; the time of going over is after the death of Mary, and the will is to the same effect, as if the words had been, after the death of Mary, without issue living at the time of her death; and is the same with the case of Pinbury versus Elkin, 2 Vern. 758, 766. I devise to my wife Hester, all my lands, and tenements, money, cloaths and yarn, to be freely by her possessed and enjoyed, provided, if she die without issue by me, that then £80 shall remain to my brother after her decease, and made his wife...
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