his said late wife, with the said will annexed, to be granted to him by the said court on or about the 5th day of August 1823." The question, on the argument of the the plea was, whether the will of Mrs. Eugenia Keir, was a good appointment within the terms of the power. Mr. Preston and Mr. Martin, appeared in support of the bill. Mr. Sugden, in support of the plea. The plaintiffs insisted, that the attestation should have expressed, that the will was signed and published by Eugenia Keir in the presence of the witnesses; whereas the actual attestation made no mention either of signing or publishing. Moodie v. Reid was relied on as an authority in point. On the other hand, it was argued, that any form of words, which showed what the acts were which the witnesses attested, was sufficient. The signing is attested; for the witnesses are witnesses of something, and of what can they be witnesses, if not of the signing? Then as to publication, that is attested by reference to the body of the instrument. "This is my last will and testament, made and signed." The witnesses therefore, are witnesses to the making and signing of the will. It was remarked for the plaintiff, that even if such a construction could be adopted, the making of the will was merely the writing of it, and did not amount to publication. Vice Chancellor.-This lady, having a considerable property, upon her marriage, thinks fit to reserve to herself, in a certain event, the power of disposition over that property; and in order to guard that power of disposition, to require that certain forms should be applied to it. Those forms are, that the instrument, being either a will or codicil, should be signed and published by her, in the presence of, and attested by, two or more credible witnesses. 7 Taunton, 355. 1 Mad. 516. See also Macqueen v. Farquhar, 11 Vesey, jun. 467. Wright v. Wakeford, 17 Vesey, jun. 454. She introduces here the term publication, a term that does not belong to wills; for wills, as it has been frequently observed, require no publication; but she thinks fit to guard her power of disposition, by requiring that it shall not prevail, unless the instrument be, not only signed, but published in the presence of three witnesses. It is not the case of Moodie v. Reid that the court is to refer to alone. That is but the last link of the chain, as it applies to the particular circumstances of this case. After great consideration, much argument, and much doubt, it has been settled, that, where a person thinks fit to guard the disposition of property by requiring certain forms, the attestation must express that those forms were complied with. Suppose that the case of Moodie v. Reid had not been decided, the single consideration I should have had to enter into would have been, whether this lady's power was so executed, that it would have been intended that the forms required for her disposition had been complied with? The policy of the law has required that her power of disposition is to be acted upon literally, before it shall be intended that the required forms were complied with; the attestation, therefore, must express that this instrument was signed and published in the manner prescribed. Now, does the attestation express that this instrument was signed and published? The attestation is in the presence of three witnesses who are named, not saying either signed or published. But, it is said, that as it is to be inferred that some act was done in the presence of those three witnesses, the act will be intended to be that act which is apparent upon the paper, namely, the signature; and that, when the names of persons as witnesses are written to an instrument, it means that they are witnesses to the signature or execution of that instrument. But even if that were so, it surely cannot be intended, that something else was done in their presence which does not appear upon the face of the instrument. It cannot be intended, that publication-an act intrinsic to the instrument-took place in their presence. Then it is said, that although it cannot be intended that the publication took place as the power of disposition requires, yet there is in the body of the will that which amounts to a publication; that the attestation is to be connected with the body of the will; that it must be intended that all, which in the body of the will, is referred to by the attestation; and that the attestation is to be explained by the language of the will. Without making any particular com ment upon the language of the will, I am of opinion, that, in order to explain the attestation, I cannot refer to the body of the will. I cannot intend that the witnesses were acquainted with the body of the instrument. Upon that ground, I am of opinion, that I must follow-not merely the authority of Moodie v. Reid as a case more immediately in point-but the numerous authorities which have laid down, that where, to guard the execution of a power, particular forms are required to make a valid instrument, the policy of the law demands that those forms should be strictly observed. Here they are not observed, and the instrument must fail. A., being at the time abroad, became tenant in common with B., and died fifteen years afterwards, without having been during that period in England, and being all the time ignorant of her right as tenant in common; B. continued all along in the sole possession and receipts of the rents and profits of the premises: Held, that E.'s possession did not amount to an ouster, and that A.'s representative could sustain a bill for an account against B., without previo ously recovering the possession. The bill stated, that Robert Brooke, by his last will duly executed and attested, and dated on the 2d of February 1765, devised certain real estates, situate in the county of Kent, (after the expiration of particular interests therein given to his widow and to his son Robert Brooke), unto all and every the child and children, both male and female of his son Robert Brooke, lawfully to be begotten, equally to be divided between them as tenants in common, and to the several and respective heirs of the body and bodies of such ild and children, and if any such children should die without issue, then he gave and devised the part and share of him her or them so dying without issue, unto the survivor or survivors of such children, equally to be divided as aforesaid, and to the heirs of the body or bodies of such survivors or survivor, such survivors to take likewise as tenants in common. The testator died in 1767. His son Robert Brooke then entered into possession of the premises as tenant for life, and died on the 24th of December 1802, leaving two daughters, his only issue, him surviving. The one was Sarah, who had intermarried with the defendant, Nathaniel Burslem; the other was Maria, who intermarried with the plaintiff, in August 1800. Maria Johnson died in November 1817, leaving two sons Freeman viving, besides several daughters. Johnson, and George Johnson her sur The bill was filed by Johnson in his own right, and as administrator to his deceased wife; insisting that she and Mrs. Burslem became, upon the death of their fathers entitled to the premises in question as tenants in common in tail, with cross remainder, between them; that he, upon the death of his wife became entitled, as tenant by the courtesy under the custom of Gavelkind to a moiety of the rents and profits of his wife's moiety of the estate ; that he continued to be so entitled until his second marriage; and that his two sons, Freeman and George, were entitled to the inheritance of the mother's share of the property. The plaintiff and his wife had been abroad from November 1800, up to the time this country till October, 1822. During the of her death in 1817; nor did he return to whole of this time, the plaintiff and his wife were ignorant of the will of the grandfather, Robert Brook, nor had they property. It was not till after his return in any knowledge of the wife's interest in the 1822, that the plaintiff discovered that he or his disceased wife had any rights under Robert Brook's will. The bill, after stating these circumstances, charged, that, in or about the month of January 1801, the testator's son Robert his life estate and interest in the hereditaBrooke sold and conveyed, or assigned all ments and premises, to Nathaniel Burslem, whereupon Nathaniel Burslem and Sarah his wife, or one of them, entered into possession of the whole of the hereditaments and premises, or into the receipt of the rents and profits thereof, and continued in such possession down to the death of the testator's son; that from and after the death of the testator's son, the defendants, Burslem and his wife, taking advantage of the absence of Johnson and his wife from this country, and under a false pretence that Johnson's wife was not a legitimate child of the testator's son Robert Brooke, and that Sarah Burslem was the only legitimate child of Robert Brooke, continued in possession of the entirety of the hereditaments and premises, or in the receipt of the rents and profits thereof, down to the death of the plaintiff's wife, and never paid to him and his wife or either of them a moiety or any part of the rents and profits of the hereditaments and premises accrued during that time; that from and after the death of the plaintiff's wife, Nathaniel Burslem and Sarah his wife, under the same false pretence, kept, and continued in, possession of the hereditaments and premises, or in the receipt of the rents and profits thereof, down to the time of the plaintiff's second marriage; that they had ever since continued and still were in such possession or receipt ; and that the defendants or either of them had never paid or accounted to the plaintiff for any part of the rents and profits of the hereditaments which accrued due during the lifetime of his wife Maria Johnson, or during the time when the plaintiff was tenant by the courtesy. The bill also stated, that the plaintiff, upon discovering his rights, applied to Bursiem and his wife, to account to him for that share of the rents to which his wife was entitled during her life, and he after her death, as tenant by the courtesy; that much negotiation took place upon the subject between him and Burslem, but that no part of that which was due had been paid to him. The prayer was for an account of the rents and profits which the plaintiff was entitled to, either as administrator of his wife, or as tenant by the courtesy. To this bill a general demurrer was put in. Mr. Horne and Mr. Tinney appeared for the demurrer. Mr. Lovat, for the bill. In support of the demurrer it was contended, that, Mr. and Mrs. Burslem had been in the sole possession of the premises for more than twenty years, and during the whole of that time had received the rents and profits as their own. Mrs. Johnson had never been in possession, and the possession of the defendants, as stated in the bill, was an ouster of her and her husband. The possession must be recovered at law, before the account of the rents and profits could be had. The bill therefore, could not be sustained. The case of Doe v. Prosser was cited. On the other hand, it was contended, that prima facie the possession of one tenant in common was the possession of the other. The receipt of the rents and profits indeed, by one tenant in common, might be accompanied with such circumstances, particularly where there was acquiescence on the part of the other, that ouster of his companion would be presumed. But here no such circumstances were stated in the bill. On the contrary, the plaintiff and his wife were abroad and ignorant of her rights during the whole of her life. The case of Peaceable v. Read,† was relied on as overthrowing the demurrer. Vice Chancellor.-The bill states this plaintiff to have been the husband of a lady, who, upon the death of her father in 1802, became entitled as tenant in common of a moiety of certain estates. The other moiety went to her sister the wife of Nathaniel Burslem. This Burslem, at the death of Robert Brooke the father, was in possession as purchaser of that gentleman's life interest; and he has continued in possession ever since. At the time of Robert Brooke's death, the plaintiff and his wife were abroad, being both of them ignorant of the existence of the testator's will, and of her rights under it. They continued abroad, and in this state of ignorance, during the whole of her life; and it was not till his return to this country in 1822, that he learned that his wife had in 1801 become tenant in common with Mrs. Burslem of the property in question; and he *Cowper, 217; +1 East, 568. Z immediately applied for payment. Burslem pretended, that the plaintiff's deceased wife was not legitimate. However, negotiations followed; but these negotiations turned out to be without effect. Then, the question is, not whether a decree is to be made in favour of the plaintiff, but whether he is entitled to call upon the defendants to answer; and that depends upon this point, whether, supposing his wife to have been tenant in common with Mrs. Burslem under the circumstances stated in the bill, he is entitled to make Mr. and Mrs. Burslem account here for his wife's moiety of the rents and profits. Prima facie, a court of equity gives that relief to a tenant in common; and in doing so it has a concurrent jurisdiction with that which a court of law exercises upon an action of account. But it is said, that, as here a court of equity has only a concurrent jurisdiction, if the case be such, that the plaintiff could not in a court of law sustain an action of account, he cannot support his bill in a court of equity. Now this plaintiff, the defendants go on to say, states facts which amount to an actual ouster of his deceased wife from her tenancy in common; where there has been an actual ouster, the tenant in common must recover possession at law, before he can have an action of account; in this case, therefore, the plaintiff could not have an action of account at law, and consequently he cannot have that account upon bill. The important consideration then is,Do the facts stated upon the bill amount to an ouster of the wife from her tenancy in common? When the tenancy in common accrued in possession, the lady and her husband were abroad; they remained, during the whole of her life, ignorant of their rights, and never made any claim upon Mr. or Mrs. Burslem. Now, actual ouster is, properly speaking, the deprivation of the possession by force and violence. It may be presumed, even where no violence has been used; but there must be a demand, there must be a denial of the right by him whose possession is to be presumed to be an ouster. Here the possession of the defendants was under circumstances, in which the other tenant in common was altogether ignorant of her rights. My opinion there fore is, that the bill does not state a case o ouster. Mere possession is not ouster; though it is a ground upon which a jury may presume custer. If there be a demand or submission to demand, without actual violence, that is equivalent to ouster. But here there was neither demand nor submission to demand, nor violence. If the facts, as stated in the bill, were proved on a trial at law, I could not direct the jury to presume actual ouster. The bill, therefore, states a case which must compel the defendants to answer. The demurrer was over-ruled. Where a suit becomes abated by the death of one of several plaintiffs, the representative of the deceased plaintiff cannot revive it, except by a bill of revivor to which the other plaintiffs in the original suit are parties. In such a case the representative of the deceased plaintiff cannot make the other plaintiffs in the original bill defendants to the bill of revivor, unless they have refused to be co-plaintiffs in it. The bill was filed by several creditors for the payment of their debts. They did not sue on behalf of themselves and the other creditors. One of them having died, his personal representative filed a bill of revi vor against the defendants. The original co-plaintiffs were neither plaintiffs nor defendants in the bill of revivor. The defendants demurred to the bill of revivor. The ground of demurrer was, that all the co-plaintiffs in the original bill, were not parties to it. In support of the demurrer it was said, that, by the death of one of several plaintiffs, the suit abated in toto, and that it was necessary to revive it as between all the parties; that upon this bill the suit could be revived only between those who were parties to the bill of revivor; that the order of revivor could be only between the same parties; and therefore that it could not operate as a revivor of the suit so far as those plaintiffs in the original bill, who were not made parties to the bill of revivor, By an order of revivor, on the bill, the personal representative of the deceased plaintiff will have the benefit of the proceedings, and the surviving co-plaintiffs have been all along before the court. Convenience too shows, that it cannot be necessary to make these co-plaintiff parties to the bill of revivor. The personal representative of the deceased plaintiff cannot force them to concur with him as plaintiffs, and what right has he to change their character in the suit by making them defendants ? Vice Chancellor.-It is impossible that the order of revivor can revive a suit as to persons who are not parties either to the order, or to the bill upon which it is made. No order, therefore, can be made upon this bill, which will revive the suit of the surviving plaintiffs in the original bill. The suit, which is unquestionably abated, and which it is the object of this bill to revive, as to them will still continue abated. It is true, that, if there be two or more co-plaintiffs, and one of them dies, the personal representative of the deceased. plaintiff cannot make the survivor a defendant, without first applying to him to be a plaintiff. If he refuse to join as a plaintiff, the personal representative of the deceased may then make him a defendant; and he ought to state in his bill of revivor, that he has applied to him to concur as a plaintiff, and that he has refused to do so. The demurrer was allowed. it. The plea was, that one of the defendants to the bill was a married woman, and was the wife of " James Eastaway, now living in the county of Devon," who ought to have been a party to the suit. Mr. Phillimore appeared in support of the bill. Mr. Knight, in support of the plea. For the plaintiff it was argued, that the plea was bad in point of form; because it did not contain a sufficient description, by his residence, of James Eastaway, who, it was insisted, ought to have been made a party, so as to enable the plaintiff to serve him with a subpœna. On the other side it was contended, that the plea pointed out with sufficient distinctness who it was that ought to be added as a party, and the addition of the parish in which he resided was altogether unnecessary. The plea would be a good plea in abatement at law; and therefore could not be bad in point of form here. The Vice Chancellor expressed his inclination to concur with the plaintiff, in regarding the plea as not containing a sufficient description of James Eastaway. However, he could not in such a case be more strict than a court of law. The case stood over, in order that the common law authorities might be looked into. Finally, the plea was allowed. |