124
gift of an annuity simpliciter sacompanied by a discretionary
power to appropriate and set apart, which was not exercised.
The words in clause 8 above referred to are merely a
statement of a thing which by law is a condition precedent
to the distribution of the residuary estate and no legal
obligation to make provision for the annuities arises until
the time for d is tri bution arrives. The Will contains no
direction to appropriate and set aside; on the contrary, this
is placed by ole use 13 in the entire discretion of the
discretion which they did not nee fit to
trustees
exercise.
The contention that equity will come to the appellants
aid is based on the fallacy that there is an obligation to
appropriate.
If, as the respondent contends. there was no obligation
or duty to appropriate, then the whole weight of legal
authority appears to be directly against the appellants
contention 990 noll's quity, 19th edn. p.186 et seq.
Ashburner's Squity. 35%.
Fletcher v. shburner (1779) 1 White & Tudor. L.C. Eq.
8th edn. 347.
Re Twopenny's Settlement (1924) 1 Ch. 592.
Re Newhould, Oorter r. Newbold (1914) 110 L.T. 6.
Re Bird, Pitmen v. Pitmm (1892) 1 Ch. 279.
Re Lyson, Challinor v. Dykes (1910) 1 Ch. 750.
Re Vrinthorpe, Beckett v. Grimthorpe (1908) 2 Ch. 675
It will be noted that while Kaneou (Deeth Cuties, 8th
adr. p.105) expressor the via that the gift of an annuity
simpliciter would not constitute a settlement, Dymond.
(Death Duties Toh Län. p.262), who on this point cites no
authority) says that the expression "settled property" is
given a liberal constration and continues "The exemption
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