The Express.
London, England, 1850-08-09 00:00:00

Raiz Intelligence.

HOUSE OF LORDS.—YLSTERDAT.
Loan Binvocua (Paramtwo), Lotto DT. GAZNAM,
AND nig Buser up Mammon'.
PaliD/UWAST O. PRUPDORO♦BT.—C:oxerarQTIOX or •

WILL.--CONTIRSIOX os FUSOII.
This Is an appeal from an order of the lase Lord Chan-
cellor, affirming a decree of Vie. Chancellor S r I. Warren.
The question in theme arose upon the oonstroction of the will
of Gay Lilacs Prendergast, who died in 1845, leaving hie
widow (the principal respondent) and three children by her
(also resposideats), and two sons and two daughters (who
are the appellants) by • former wife, deceased. By his will,
the testator gave his wife his leasehold house and furni-
ture in Grafton-street, Boadestreet, and • legacy of
2,0001,; mid he apt °tined her and others, including
two of the appellants, his trustee. and executor.
He pre and bequeathed to these trustees so much of his
perineal estate as at the time of his death should produce •
el at enema' laconie of 1,5001., and he directed that the
sme should be selected a-.d appropriate d. end set apart, as
steno as conveniently might be after his death, by his said
trustee., or trustee, &e., in their uccuntrelled discretion ;
and that they should stand possessed of the personal estate
so to be appropriated and set apart upon trust to pay the in-
tenet dividends and acne it produce thereof hallyrorly to
his wife during her lite, if she should so long continue his
widow. And, alter her death or second marriage, he di-
rected that the personal estate which should be so appro-
priated and set apart or the stocks funds or securities, in
which the same should be then laid out or invested, should
sink into his residuary personal estate ; and, in ease the
yearly interest dividends, etc, of the puniest estate so to
be appropriated and set apart, as &for:said, or the stocks,
&c., in which the same should be Ind out or in-
ves'ed, should, from any cause, be increased or reduced,
in amount during the time the same were directed to be
paid to his wile; in such case she should be entitled to re-
ceive such increased or reduced it.t t, dti., in lieu end al.
infection of the interest dividend., and minus) produce
before directed to be paid to her." The testator gave the
residue of his personal estate to the trustee. in trust, to di-
vide the same equally among all his children, whether by
his first or second marriage, at the times in the will men-
tioned. In a subsequest part of the will the orator em-
powered his trustees at their discretion to permit the whole,
or any part of his prnonal estate, to continue in such securi-
ties as the same might happen to D 3 invested in at the time
of his death, so long as they should sec fit. Nevertheless, he
fully empowered them to sell and convert into money such
parts of his personal estate as should not consist of money
or securities for nimey, and to call in such tarts thereof
as should consist of money, or securities kr money,
when and as t, ey, in their discretion, shoMd think fit.
and to lay out and invest the money so to De received is the
public funds of Crest Britain, or on government or real
security at interest, and from time to time to alter, vary,
and transpose the needs and securities in which the same
should be laid cut and invested, and again to reinvest, Bto , at
their discretion.

Soon after the testator's death Mr. Harris Prelacies.-
gut, nephew of the testator, and cue ot the executors ant
trustees, proved the will, and acted in the trusts. The teem-
tor's personal estate. at his death, consisted nf large quan-
tities of foreign stocks, as Upper Canada debenturee, Louis-
iana and New Orleans Bond., Mar3land, Hissis,ippi and
Pennivlvaufs stocks, ace., all amounting in value to upwards
of 70.6001. sterling; but the annual produce of them being
fluctuating and uncertain the testator widow called on the
acting ezecu'or to sell out so much of the foreign stock
as would produce 50,0001. sterling, and invest it in the Three
per Cent. Bask Annuities, so as to produce 1,5001. a year
cert-in to her. The executor refused to do so, having •
doubt whether the wiU gave him such power. The result
WWI that Mrs. Prindergast filed a bill in Chancery against
all the executors and children of the testator, prayinz that
the trusts of the will might be carried into effttt under the
direction of the court, and that she might be doelari.d enti-
tled to have so much of the testator's personal estate set apart
and invested in the English fund. or in real security in
England es would yield to her a clear sum of 1,504 a year.
Upon the hearing of the cause in 1846, before Vice Chan-
cellor Wigram, his Honour by his decree declared the widow
entitled to have so much of the testator', personal estate
vested in the Three per Cent. Bank Annuities as would be
sufficient .0 produce 1,5001. a ye.r to ensure her her annuity.
His Honour afterwards re heard the caws st the instance
of the appellants, some of whom were not within th, juris-
diction at the first hearing, and he pronounced the same
decree is favour of the widow. There was int n an app: al
to the Lord Chancellor (Lord Cuttenharo), who ethernet
the said decree by an order made in January, 1847.
The present appeal was brzucht &galas: 'he raid decree
and order, and the question was whether the provision
made by the testator for:his widow should cansist of the
interest of so much of his personal estate as was at his death
in its then state of investmeot, producing 1,500!. a year, or
whether an annual income of that amouat should be eeoured
to her by sale of a sufficient portion ot the personal estate
then vested in foreign stocks. and by a re4nvestment of the
proceeds in the purchase of 44),0:,01. Three per Cont. Con-
solidated Bank Anouities.

Mr. Bothell and Mr. Hetherington, for the appellant',
argued to the effect that they woo are inters sled in the
residuary estate would suffer great injury ~r :ow by a sale
of the foreign securities; that such sale was not neces-
sary for the purpose of securing 1,5001. a ye.r to the
widow of testator, as the income from the foreign funds,
yielding from 5 to 6 percent. interest, was more than suffi-
cient for the purpose, and such sale was inc icsistent with
the intent and meaning of the testator. His intention,
manifest on the face of the will, wet, that so much only of
his personal estate should be selected and set apart for the
benefit of the widow as at the time of his death was pro-
ducing 1,5001. a year, and the direction in the decree to
select ar.d set apart so muck of his personal estate as was at
his death producing that income would be defeated by the
pinches. of Three per Cent. Bank Annuiti.s. The Court
of Chancery, instead of decreeing for the conversion of the
foreign funds, ought to have declared that the trustees had
power under the will to select and set apart a sufficient pert
of the existing personal estate to answer tLewidow's an-
' unity. The trustees were willing to exercise that power,
and the court was not required, nor indeed at liberty, to
direct the conversion of the estate into Three per Cent.
Bank Annuities.

The Attorney-General and Mr. Torment, for Mn. Pren-
dergast, the widow of the testator, in support of the decree
and order, contended that as the acting trustee declined the
duty otappropriatiog and setting apart the fund for securieg
the annuity, the court was homed to di clue how the trusts
of the will were to be carried into execution, and that de-
claration was properly made by the decree.
Mr. H. Palmer and Mr. C. M. ft tupell appeared for ]lr.
Harris Prendergast, the trustee ; but as he Led no b:c.ti.ial
interest in the subject matter, and war in favour of the de-
cree and order appealed against, they were not heard.
Mr. Bothell replied.
Judgment was postponed.