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they did not claim any thing of which the to the husband, to appoint the wife's estates will purported to dispose.

to one or more of the children of the marFor the defendant, Sir John Trollope, it riage, and the limitation over, in default of was replied, that the portions of 5000l. appointment, to all the children equally, as were charges upon the estates of his mother, tenants in common. That power is obviLady Trollope, over which his father had ously introduced for the purpose of enaa power of appointment :- that these bling the husband to make a provision for charges were clearly intended as a substi- younger children. tution for the appointment of the premises: Sir John Thorold made his will in 1809. —that the plaintiffs could not claim under At the very outset of it, there is a circumthe limitation over in default of appoint- stance of considerable singularity : for he ment, without defeating the express provi- gives to Lady Trollope, for a certain time, sions of the will : and, therefore, that they the mansion-house, situate upon the escould not take the portions and also the tates, which, under his own articles, would estates,

go to his eldest son. He does not affect to Vice Chancellor.—This question is occa- divest his son's interest, but he gives Lady sioned entirely by an accidental slip in Trollope the mansion-house, till the son drawing of Sir John Trollope's will. attains the age of twenty-one years. He

Sir John Trollope being about to inter- then recites his own articles in the very marry with Miss Thorold, who was then words in which they are framed. It is reunder twenty-one years of age, an arrange- markable, that he does not take the least ment is entered into for the settlement of notice of the lady's articles, though they, the estates of both parties ; and with this in the estimation of a court of justice, form view, two sets of articles are executed, both one part of the agreement. After the remade on the same day, though not con- cital, he says, " And whereas, no settlement tained in one instrument:the first set has been made in pursuance of the said relating to the estates of the husband; the agreement, I confirm the said agreement, second, to the property of the wife. By Sir and direct that the same shall be performed.” John Trollope’s articles, all his estates are This merely expresses his intention, that limited to the use of himself for life; then, the limitations, contained in his own artisubject to a term for securing a rent charge cles, should remain. It does not alter the to Lady Trollope, to the use of the first, interests or estates thereby created. It cuts and every other son, in strict settlement; out the power of appointment which interin default of issue male, remainder to such vened between the limitation to the issue uses as Sir John Trollope should appoint; of the marriage, and the limitation to the remainder to his collateral relations ; with brothers of the settlor: but it completely the reversion ultimately to his own right recognizes and ratifies all the other purheirs. Miss Thorold's articles, after con

poses of that settlement. firming her father's estate for life, and He then says, “I give and devise to my giving certain premises to Sir John Thorold said wife, all and singular my messuages, in fee, settled the rest of her real property lying and being at Fisherton,” &c. These on him for life ; remainder to the lady her- messuages were part of the wife's property, self for life ; remainder to such uses for the but were given, by her articles, to the tesbenefit of all and every or any of the chil- tator in fee. The testator, it is clear, condren of the intended marriage, as Sir John sidered, that he had a right to dispose of Trollope should, by deed or will, appoint; these premises, and he had such a right in default of appointment, then to the use only under his wife's articles. This devise, of the children in equal shares, as tenants therefore, shows, that these latter articles, in tail; remainder to such uses as the lady though not recited in the will, were present should appoint; and in default of appoint- to the mind of the testator, while he was ment by her, to the use of Sir John Thorold, making his testamentary arrangements. in fee.

That they are not recited, is, doubtless, an It is to be remarked, that, in these set

accidental slip tlements, there is no provision for the Having given his wife this interest, he younger children, except the power given proceeds to say, "I give and devise, and by virtue of every power enabling me in wife's estates, as he has here made. He that behalf, I appoint to John Linton, and has created a term, subject to which he has Thomas A. Trollope, &c. all the manors, given the estates to his first and other sons &c. agreed to be settled as aforesaid :". in tail male, with remainder over to others. which words, I grant, must be read as The power, under the articles, was to apconfined to the estates which were settled point to one or more of the children of the by his own articles ; but he adds inmedi- marriage; if he made no appointment, ately, “and all other the manors, mes- there was a limitation in favour of all the suages, &c., both freehold and copyhold, children; and if there were no children, belonging to me, or over which I have a Lady Trollope had a power of appointment. power of appointment." The words with This appointment is, undoubtedly, not an which this clause begins, and those with appointment according to his power : and, which it ends, must determine what this if it prevails, the interests of the daughters, testator meant to pass to Linton and Trol- under the limitation over in default of aplope upon the trusts which he has declared. pointment, are gone; and Lady Trollope's Now, the words here are very general and power of appointment is gone too. comprehensive; for he gives every thing I find, however, great difficulty in yieldbelonging to him, or over which he had ing to this argument. The only provision any power of appointment: and it is the made by the articles for the younger chilsettled rule of a Court of Equity, that ge- dren, consisted of the power given to the neral words of this description, unless husband, to appoint the wife's estates plainly narrowed and qualified by prece- among them, and of the limitation over in dent, or subsequent words, will carry all their favour. Now that, which was the that they comprise in their natural import, object of his power, is, also, the very first that is, everything which the testator object of the appointment which he has could, by power of appointment, or other here made: for the appointment is upon wise, affect. Therefore, unless it can be certain trusts, the tirst of which is, to raise shown that there are other expressions portions for the younger children out of which modify the unrestrained sense of this those very estates, over which he had a clause, a court of justice must allow them power of appointment for their benefit. their full operation ; and it lies upon those, The very nature of the property, and the who support the interest of the younger manner of the exercise of the power, would children, to show, that these words do not lead one, extrajudicially, to say, that the comprise all that in their natural import testator must have intended the portions to they comprise,—that they do not comprise be a substitute for that provision which the the estates, given by the mother's articles, younger children would take, if he did not to be appointed among the children, as Sir exercise his power of appointment; and John Trollope should, by decd or will, direct. that he thought it more convenient to raise

For the younger children, it is said, that a reasonable and definite sum for them out the larger sense of the words is thus to be of these very estates, than to apportion narrowed :-the testator must be supposed among them the estates themselves. That, to have intended to comprise only those however, would be but conjecture; and I premises, over which he had such a power should hesitate to proceed judicially upon it. of appointment, as would enable him to The satisfactory answer to the observaappoint in the inanner in which he has tion is found in the will itself. The argudone here: Now, upon looking at the ment is, that Sir Jolin Trollope did not lady's articles, it will be found, that, though mean that his devise and appointment he had a power of appointing his estates, should extend to these estates, because his yet he had no power to limit them in the power was not absolute but qualified ; and mode in which they are limited by this the appointment here made is one which clause: therefore, the clause ought not to he could not make in the due exercise of be construed as extending to these estates. that power. Now, in the first place, I say,

It certainly cannot be argued, that Sir that it was not his purpose, in franaing his John Trollope had, under the articles, a will, to make only those dispositions which power to make snch an appointment of the his wife's ar içles authorized him to make, He adopts, in the most express words, the decease, their debts, fc. to be paid; He limitations of his own estate, and extends then gives various legacies, and bequeaths them to his wife's. He had in his view, the residue to his nephew :-Held, that the the principle of election; and, with refer- daughter takes the personal property absoence to it, he made, and knowingly made, lutely, and an estate tail in the real prodispositions which he had, legally, no right perty, and that the legacies were meant to to make. The argument of the plaintiffs, be given only upon the failure of heirs of therefore, must go for nothing; because it the body of that daughter. proceeds upon the supposition, that it was John Champion made his will, duly exe. the intention of the testator to do only that cuted and attested, in the following words : which he had legal authority to do; and First, I will that all my debts and that supposition is refuted by the plain funeral charges befully paid and discharged. tenor of the will.

First, I give to my only daughter, Rachael This is not all : for, secondly, there is Champion, and her heirs, my estate, lands, an express clause, which orders, “That and tenements, my goods, cattle, and chatevery person claiming a benefit under his tels, ready money, and securities for money, will, shall be bound to give effect to every and whatever to me belongeth, and at their disposition and direction therein contained, decease, their debts and funeral charges to and that no one of his daughters or younger be fully paid and discharged; first, I give sons shall be entitled to claim any provi- and bequeath unto my niece, Sarah Bell, sion under him, or out of his settled or un- the sum of 501. good lawful money; item, settled property, other than the provision I give to my niece, Mary Williams, the made for him or her respectively, under sum of 50l. ; item, I give to my niece, his will.” The testator considers, that he Sarah Bennett, the sum of 50l. ; itein, I has purchased the rights, which he has give to my nephew, Matthew Hart, the given by that will. He tells us, on the sum of 50l.; item, I give to my niece, face of the instrument, that he is sensible Mary Wilson, the sum of 50l.; item, I that he has exceeded his strict legal autho- give to my niece, Mary Widdison, the sum rities, but that he conceives himself to have of 100l. ; item, I give to my niece, Elizadone that which was most for the benefit beth Newstead, the sum of iool. ; item, I of the family, and to have secured his give to my nephew, John Widdison, the younger children a provision more advan- sum of 100l. ; item, I give to my nephew, tageous to thein, than what the settlement Robert Widdison, the sum of tool. The gave

them :-that he knows, that they may residue and remainder of my freehold claim under the settlement, against his dis- estates, lands, and tenements and hereditaposition :—and that his purpose is, that, if ments, with my goods, cattle, and chattels, they do so claim, they shall lose the benefits and whatsoever to me helongeth, I give to intended for them by the will. The argu- my nephew, William Widdison, and his ment for the plaintiffs, in effect, insists, that heirs, and I appoint him the sole executor the testator inust be taken to mean, not of this my last will and testament." what he has said, but the contrary.

The testator left him surviving Rachael, Upon the whole, I am of opinion, that, if his only daughter and heiress at law, and Lady Trollope claims under the will, she

likewise the various legatees named in the must settle her own estates to the uses of will. the will, and that, in such case, the younger The bill was filed to ascertain the rights children cannot claim any part of these of the parties. Two questions arose upon estates, as tenants in tail, under the articles. the will: First, What interest did the

daughter take under the will? Secondly, Whether the legacies were payable at all; and if payable, at what time?

Mr. Heald and Mr. Cooper, for William 1823.

Widdison.
WIDDISON U. HODGKIN.
Nov. 12. S

Mr. Bell, for the daughter.
A test ator gives all his property to his

Mr. Teed, for the legatees. daughter and her heirs, directing, at their For the plaintiff it was contended, that

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by the word " heirs” in the bequest to very words in which he had before given it Rachael Champion, the testator must have to Rachael Champion. meant " children ; ” for he had directed The question, then, is-What is the their debts and funeral charges to be paid. interest, which he has here given to his Such a provision was compatible only with daughter, and which he considered to be a limited interest; it was a clause without determinable ; for it is not because he conmeaning, if it affected to modify a fee. The sidered it to be determinable, that it will true construction, therefore, was, that the deterinine contrary to the rules of law. property was given to the daughter for life; Now the words of devise and bequest to the remainder to her children for life; remain- daughter are, -"I give to my daughter, der, subject to the legacies, to William Rachael Champion, and her heirs, my Widdison.

estates, &c. and whatsoever to me belongMr. Bell insisted, that, as the limitation eth." Afterwards, he directs how the proover was to the cousin of the first taker, perty is to go upon the determination of the gift to Rachael Champion and her this interest; charging it in that case with heirs, was a gift to her and the heirs of her certain legacies, and giving the residue to body.

William Widdison. But William WiddiFor the legatees, it was argued, that pre- son, being his nephew, was included in the sent legacies were clearly given to them. line of heirs of the daughter. Therefore,

Vice Chancellor.—This is a will made in the gift to Rachael Champion and her by a person grossly ignorant ; still the prin- heirs, the testator meant, not heirs general, ciples of fixed legal interpretation must be but heirs of her body; and the directions applied to it; and if there be a construc- as to what is to be done upon their tion, which will make every part of it sen- decease,” that is, upon the decease of his sible and coherent, that construction must daughter and her heirs, must refer to the prevail.

failure of heirs of her body, and not of her I cannot agree with the argument, that heirs general. Thus, the construction will it gives present legacies to the several ne- be, that the property is given, in the first phews and nieces mentioned. It is impos- place, to Rachael Champion and the heirs sible to contend, that the gift to the of her body, and that, upon failure of heirs daughter was not meant to carry, and does of her body, it is to go, subject to certain not carry some interest in all that the tes legacies, to William Widdison. tator had in the world. He clearly had it But then, it is said, that there are words in contemplation to give his daughter and which alter this construction, and convert her heirs some interest (of whatever dura- what thus appears to be an estate of inhetion,) in the whole of his property. Those, ritance in the daughter, into an estate to therefore, who insist, that he had an inten- her for life, remainder to her children for tion to give present legacies to various le- life, remainder over to William Widdison. galees, say what is absurd ; for such lega. It is a monstrous intention, which we imcies could not take effect, except by an in- pute to the testator, if we suppose, that he fringement of the former express bequests. meant to exclude his own grand-children All that he had being bequeathed in the from his property, and to prefer his nephew 'first place to his daughter and her heirs, to them. But we are told, that we must imthere could be no present gift of any part pute this intention to him, because he has of it to other persons.

saiil, that “at their decease, (that is, at the The construction I must adopt, is this. decease of his daughter and those whom He gives an interest to his daughter in all he describes as her heirs,) their debts and the property which he had in the world, funeral charges are to be paid ;” and this but an interest which he considered might direction, it is argued, was probably meant in some manner determine. Then looking to apply to the debts of his daughter and to the determination of that interest, he her children. I will not deny, that it may directs what upon that event is to be done; have been so meant; but what is there in first ordering certain legacies to be paid, such a direction to cut down the estate and then giving the residue of his real and before created, and to change totally the personal estate to William Widdison, in the character of the gift?

EX PARTE JACKMAN

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IN THE MATTER OF KING,

The decree declared, that the daughter by moduses this constitutes a prima took the personal property absolutely, and facie case for the moduses ; and it becomes an estate tail on the real property.

the business of the plaintiff to overthrow them, not that of the defendant to sustain them.

The bill was for an account and pay

ment of tithes; the answer insisted on 1823.

various moduses as a defence to the claim. Nov.

Mr. Sugden and Mr. Van Heythuysen, An cquitable mortgagee of property bec

to prove the title of the plaintiff to the tithe longing to a bankrupt, who has written

of the lands in question, read certain pasevidence of the mortgage, will be allowed sages from the answers of the defendants, , the costs of his petition for the sale of the

in which the defendants, though they adpremises, though the petition further prays,

mitted facts constituting a prima facie title that he may be at liberty to be a bidder at

of the plaintiff, insisted on their belief, that the sale.

as to certain matters, they were protected This was a petition by an equitable from the payment of tithes by good momortgagee of property belonging to the

duses. It was then argued, that the plainbankrupt, praying, that the premises might

tiff having shown a prima facie title, it be sold, that the petitioner might be at

was incumbent on the defendants to esliberty to bid for them, and that the pro

tablish the moduses, which they had set ceeds of the sale might be applied in satis

up. faction of his debt.

Mr. Bell, contrà, alleged, that the plainThe pledge was not created merely by tiff, by the evidence which he had employdeposit: there was a written agreement for

ed to establish his title as tithe-owner, had a mortgage.

himself made out a prima facie case for

the moduses. Mr. Tinney, for the petition, stated, that

The moduses, therefore, the only difficulty was with respect to the

must be held to be good, unless satisfaccosts. As the pledge was proved by a

tory evidence to impeach them was adwritten document, the petitioner was en

duced. To adduce that evidence was the titled to the costs of the petition, so far as

duty of the plaintiff. it was a petition for the sale of the

Vice Chancellor.--The plaintiff, to make

premises ;* but it prayed also, that he might

out his own title, has read passages from be at liberty to bid for the premises, and

the answers, in which the defendants state in that respect, he was not entitled to costs.

their belief, that as to certain titheable The Vice Chancellor thought, that the

matters, the lands in question are covered

This constitutes a prima expense of the petition for the sale of the by moduses. premises was not increased by the introduce facie case against the plaintiff; and under tion of the prayer for liberty to bid at the

these circumstances, it is his business to sale, and, therefore, allowed the petitioner

overthrow the moduses, not that of the his costs generally.

defendants to sustain them.

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COPE 0. BANNING.

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1823.
1823.
CARRINGTON V. JONES,

Dec. 12. S
Nov. 13.
If in a suit for tithes, the plaintif, to

A testator, out of a fund composed of prove his title as tithe-owner, reads

the proceeds of his real and personal estate,

passages from the answers, in which the defen- gives a legacy to A. and a contingent les dants state their belief, that as to certain

gacy to B.; he then directs his trustees to matters, the lands in question are covered pay to his devisees as under, C., D., &c.

certain sums; finally, he gives the residue * Ex parte Vauxhall Bridge Company, Glyn

to his devisees above named, share alike, in and Jam, Cases in Bankruptcy, 101.

proportion to their several legacies; Held,

c%

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