The opinion
Lord Justice Knight Bruce,
in a concurring opinion, made this statement: “lam certainly not disposed at present to direct that *5 the annuity should be valued, or to do more than allow the annuitant from time to time to break into the capital of the appropriated fund for the purpose of making good any deficiency in the dividends to pay his annuity.”
Thus, in this case the English court expressly held that the annuitant was not entitled to have his annuity valued and paid over where the question was between the annuitant and those entitled to the residuary estate.
In Yates v. Yates (supra) the court likewise denied the annuitant the right to have his annuity valued and paid over where the question was between the annuitant and those entitled to the residuary estate. In this case the plaintiff was a creditor for an annuity of £200 a year. The action was brought against the executor to have the annuity valued and paid over.
2 Jarman on Wills (6th ed.), *878, says: “ Now, in form, and so far as the testator’s intention is concerned, the gift of a sum to purchase an annuity for A. is not an absolute gift to him of the sum; but the conclusion that A. is absolutely entitled to the sum is arrived at in this way. The trust to purchase is first taken to have been actually executed (for it is a perfectly lawful trust), and seeing from that point of view that A. may immediately sell the annuity, the Court dispenses with the actual purchase, and holds that A. is entitled to immediate payment of the sum. But where the annuity when purchased is to be subject to a gift over, the same point of view does not necessarily present the same conclusion.”
The reason for the rule is readily understandable. The life of an annuitant may drop out at any time. In the instant case, there will be insufficiency of corpus to pay the two annuitants. If one should die, however, there would be ample corpus to pay the other annuitant as long as he or she might five, and the corpus would be saved for the remaindermen. After the death of one annuitant, the chance of wearing away the corpus is gone.
I hold that the annuities should not be valued and a capital sum paid to each annuitant. The court directs that the estate funds be set aside, so calculated as to produce an income of $150 per month for the benefit of Leonard Oakley, and to produce an income of $100 per month for the benefit of Emma Beecham Chick. Should the income earned by the fund at any time be insufficient to permit these monthly payments from income, the principal should then be encroached upon to the extent necessary to make up the deficiency in each payment. Upon the death of the annuitants, the remainder of the corpus will pass as directed by the will.
Submit decree.