Page:The English Reports v1 1900.pdf/733

But it was objected, that by the codicil this annuity was made payable to the legates, as mentioned in my will; and that this expression necessarily implied, that the fund for the £100 under the codicil, was to be the same as for the £200 under the will; i.e. both were to issue out of the real estate.

To this it was answered, that such implication was not only unnecessary, but altogether groundless; because all courts have made a wide distinction between expressions in wills, which form part of the essence, or substance of the legacy itself, and expressions which only annex accidental circumstances to a legacy. The word payable has been always deemed of the latter class, and can therefore by no subtilty, any more than by the ordinary construction of speech, be applied to the fund, which is of the essence of the legacy. The words payable to him as mentioned in my will, meant no more than to say, as to the time, the mode, the place of payment, and whether in town or in the country, whether quarterly or half yearly, etc. the same should be regulated by what had been provided in respect of these circumstances by the will, as to the £200 thereby given. And it was observable, that there was a circumstance required by the will concerning the [501] payment of the annuity devised by it, very material; and which circumstance, by the words relied on by the appellant, was fastened upon the annuity of £100 per ann. for the first payment of the annuity of £200 per ann. was not to be made till on such quarterly feast day as should next happen after the testator's death and failure of issue male. If the testator had left a son, neither of the annuities would therefore have been payable while that son lived, or had issue; the testator manifestly shewed this to be the sense in which he used the word payable, by a clause in the will itself, referring to the same annuity given to Sir Henry Englefield; and what substantial reason could be given, why the testator should use the word payable for different purposes in the codicil, than be had expressly done in bis will?

But even if the words relied on by the appellant should be deemed necessarily to imply, that the testator meant to charge his real estate only; yet it was conceived, that this codicilary writing would amount to a good farther charge on the real estate, as an appointment under the settlement of October 1748. By that settlement, a power was reserved to Mr. Carrington the testator, by way of reference to the former settlement of February 1730, by any writing under his hand and seal, signed and sealed in the presence of two or more credible witnesses, to revoke, make void, alter or change all or any of the uses therein before limited to or for the benefit or advantage of the first and other son and sons of his body, on the body or bodies of any woman or women whom he should happen to marry after the decease of the said Mary Englefield; and also to revoke all other the use and uses therein before limited of the premises, subsequent in point of limitation to the use limited of the term of 600 years; and by the same, or any other writing or writings under his hand and seal, attested in the presence of two or more witnesses, to declare, limit, or appoint any new use or uses of the said premises. The will expressly recited this settlement, and the power contained in it; and then the testator declared, that in pursuance of his said power, and all other powers and authorities enabling him in that behalf, he revoked the life estate created by the settlement in his uncle Charles Smith, and all estates and uses subsequent thereto; and be thereby made a new settlement of his estates, and charged the same with several annual and other payments; and particularly, a yearly rent-charge of £200 to his brother-in-law Sir Henry Englefield, for his life, payable half yearly, at Lady-day and Michaelmas; the first payment to be made on such of the said feasts as should next happen after his decease without issue male. It is well known, that writings of this kind, though testamentary in their nature, do not take their effect, essence, or validity from the statute of wills, but from the settlement or deed of uses which created the power; and though they speak the language of wills, and seem to contain devises and bequests, yet they are in truth appointments of uses or trusts, according to the operation of the original deed reserving the power; which power is sometimes reserved over the legal, and sometimes over the equitable estate. The instrument called Mr. [502] Carrington's will, appeared to have had three witnesses, but the power, in its original creation, required no more than two, and it was a work of supererogation, to call in or make use of a third witness to such a will; but in adding a third witness, Mr. Carrington did not vary the nature of the act; it was