Hammond v Neame
| Jurisdiction | England & Wales |
| Judgment Date | 29 January 1818 |
| Date | 29 January 1818 |
| Court | High Court of Chancery |
English Reports Citation: 36 E.R. 287
HIGH COURT OF CHANCERY
See Thorpe v. Owen, 1843, 2 Hare, 612.
[35] hammond v. neame. Bolls. Jan. 29, 1818. ).,7 ^C7.^,0 [See Thorpe v. Owen, 184.'i, '2 Hare, (51 2.] Under a bequest of stock, in trust to pay the dividends to M. H. H., the niece of the testator, " for and towards the maintenance, education, and bringing up of all and every the child and children of the said M. H. H. until lie, she, or they shall attain twenty-one," then to transfer the principal equally among the children, with a bequest over in default of such issue, to the nephews and nieces of the testator living at the death of At. H. H. : The dividend1' are payable to M. H. H., although she has no child. By his will, dated 4th January 1812, Austin Neame bequeathed to Richard Gibbs, his executors, administrators, and assigns, the sum of 3400 3 per cent, reduced annuities, upon trust, " to pay and apply the yearly interest and dividends thereof, as the same should become due and payable, into the hands of his the said testator's niece, and his the said R. (!Ms' daughter, Mary Hills Hammond, for and towards the maintenance, education, and bringing up of all and every the child and children of the said M. H. Hammond, until he, she, or they shall attain the age of twenty-one years, and when and so soon as he, she, or they shall have attained that age, then upon further trust to pay, assign, and transfer the said sum of 3400 unto and equally among all and every the child and children of M. H. Hammond, equally to be divided between them, share and share alike, and to their several and respective executors, administrators, and assigns ; and in default of such issue, upon trust to assign and transfer the said sum of 3400 unto all and every his the said testator's nephews and nieces, the children of his the said testator's brothers ; that is to say, the children of his brother John Neame, and the children of his brother Thomas Neame the elder, living at the decease of M. H. Hammond, and the child or children of such one or more of them as should be dead, equally to be divided between them, share and share alike, and to their several and respective executors, administrators, and assigns : provided always, and he thereby declared, that the first half-year's interest on the said sum of 3400 which should become due next after his decease, should go, and he thereby bequeathed the same, unto his nephew and residuary legatee Thomas Neame the younger, his executors, administrators, and assigns." [36] The testator died on the 1st of December 1813. The Plaintiff, Mary Hills Hammond, not having any children, claimed to be entitled to the dividends accrued on the sum of 3400 stock since the decease of the testator (except the first half-yearly dividend payable after his decease), and also to such as shall accrue during her life, or till she shall have a child which shall attain twenty-one. The bill prayed a declaration of the rights of M. H. Hammond, payment of past 288 HAMMOND V. NRAMK 1 SWANS. 87. dividends, and transfer of the stock into the name of R. Gibbs, the trustee, on the trusts of the will. Mr. Hart and Mr. Boupell, for the Plaintiff. This legacy is not left in the hands of the executors to be applied or not applied by them, but is an immediate gift at law in favour of Gibbs, separated from the bulk of the estate; a gift upon an express trust to pay the dividends to the Plaintiff. She, and not her children, of whom none are in existence, is the object of the testator's bounty ; but that bounty is connected with an obligation imposed on her of maintaining her children out of the funds. Upon the construction that the Plaintiff is not entitled till the birth of a child, the gift, which is in terms absolute and immediate, becomes contingent, and may be suspended during her life. In the interval the dividends would be payable to the residuary legatee ; an implied benefit inconsistent with the express gift to him of the first half-year's dividend. The bequest over is not to take effect till her death. The testator believed therefore, that during her life the dividends were disposed of; and he has given them to no person but her. A legacy bequeathed for a special purpose, on failure of the purpose, without default in the legatee, as by the death or lunacy of an...
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