V.C. S.] EGLIN V. SANDERSON. [V.C. S. he gave to his wife Elizabeth Eglin a legacy of 501., | them, the defts., their heirs and assigns, upon trusts also some household goods, and an annuity of 2001. for the payment of his creditors. for her life in case she should so long remain his widow. They further said that the real estate comprised in Testator left to the discretion of his executors to set the said indentures of the 11th and 12th Aug. 1830 canaside such parts of his real and personal estate sisted of certain particulars, all of which were subseor both as they should think best for better quently sold by the testator, with the concurrence of securing the payment of the annuity; and sub- his trustees, in the years 1832 and 1835 respectively. ject to payment of debts and the legacy and annuity In execution of the trusts so reposed in them they, the above mentioned, testator gave the residue of his per-defts., disposed of the principal part of the trust presonal estate and effects, and also all his real estates, mises, and reconveyed the residue to the testator in unto Joseph Sanderson, John Sanderson and William his lifetime, subject to a mortgage thereon. In the Dryden, their heirs, executors, administrators and year 1835 the testator carefully investigated the acassigns, upon trust to sell and dispose of the same counts, and, at a meeting held at Hull, on the th real and personal estates, or of such part or parts Oct. 1835, he finally balanced the said accounts, and thereof as they should think proper, for the payment signed a memorandum to the effect that the accounts of his just debts, for the benefit of the trusts of that then exhibited and marked A. were finally balanced, his will, and upon further trust to stand seised and it being agreed that the stated balance of 1544. should possessed of the residue for the benefit of any chil- be paid to Mr. Eglin, and that the ship Diadem, with dren he might happen to leave, or which might be the advantage of her then present voyage, should be born in due time after his decease, and to pay and transferred to Mr. Eglin, subject to his granting a apply the income as his trustees should consider reason- mortgage thereof for 9002, to secure Worrill's trust, able and proper for and towards the maintenance, and, on his giving to Mrs. Harker a satisfactory security education and advancement of his said children; and, for the 250/. due to her. All the rest of the property was when the youngest of his children should attain twenty-to be assigned to Messrs. Sanderson, subject to the one, upon trust to assign and convey the residue among all such children, their heirs, executors, administrators and assigns, as tenants in common. Testator appointed the said Joseph Sanderson, John Sanderson and William Dryden his executors. other debts. The private debts of Mr. Eglin since the creation of the trust were to be paid by him. On the arrival of the Diadem she was to be addressed to Messrs. Sanderson, for the purpose of enabling them to receive the freight, out of which they were to repay themselves the 2617. 10s. outfit, and 551. 5s. 10d. insurance, or any subsequent claims on the vessel; in case of any deficiency, Mr. Eglin engaging to make good the difference. The account A. then followed, stating the balance of 1541. due to Mr. Eglin. The ship Diadem was then at sea, and no legal mortgage of the Testator died at Hamburg, on the 29th March 1836, leaving his widow Elizabeth and three children, Joseph Eglin, his eldest son, the plt. William Henry Eglin, and Josephine Eglin. The widow died on the 22nd Jan. 1852 intestate, and there was no personal representative. Joseph Eglin the son died on the 23rd Nov. 1852, never having been married, and intes-vessel was ever executed. The defts. said that had tate. Josephine Eglin, the daughter of the testator, was born about the 28th Aug. 1836, after the testator's death. She was adopted by a friend of her father, was never recognised as a daughter of the testator, and was living in Australia. The bill was filed in July 1858, against the two Sandersons, William Dryden and Josephine Eglin, who was out of the jurisdiction. It alleged that the plt. had, since the death of his mother, made various applications to the trustees and executors, and on being applied to, William Dryden said that Joseph Sanderson had the entire management of the estate of the testator; and Joseph Sanderson stated that the will was of no use, and, moreover, that he did not know such a will was in existence. In reply to more recent applications, it was alleged that the trustees and executors now stated that the testator during his lifetime conferred upon them full powers of management over his property; but they absolutely refused to discover of what the property consisted, or the terms of such powers of management, or to render any account. The bill further charged that the testator was at his death entitled to real and personal estate of large value, that the defts. as executors and trustees had possessed themselves of the personal estate, and had entered into receipt of the rents and profits of the real estate. The bill prayed for execution of the trusts, for administration, and for accounts, charging the trustees with the profits of any business in which the testator's moneys might have been employed, and with losses arising from default. The defts. put in a joint and several answer, dated the 20th Sept. 1855, whereby they said that the testator's estate was much incumbered, and that he was involved in debt; that at the time of his death he was seised of no real estate, having immediately previous to the date of his will, viz. on the 11th and 12th Aug. 1830, conveyed all his real estate to the use of such mortgage been executed, there would not have been any occasion to have proved the testator's will, which was wholly inapplicable to his altered circumstances. On the 27th Feb. 1836 the testator executed a release to the defts., reciting that the greater part of the trust premises had been sold, and the residue thereof, subject to a mortgage thereon, had been conveyed and assured to the said Joseph Eglin, bis ap pointees, heirs and assigns, as he thereby admitted. At the same time a memorandam was signed, having the same date, stating that the undersigned Joseph Egliu acknowledged that, notwithstanding the release, there yet remained to be done, a mortgage bill of sale on the Diadem; also a transfer of the Lowndes to Messrs. J. and J. Sanderson, a discharge from the debt of Mrs. Harker and the executors of the late Mr. Sanderson. The deft. Joseph Sanderson said, he "gave to the plt., to the best of his power, an account of the way the testator got through his property by extravagant expenditure, and he informed the plt., as the fact was, that his father died in hopeless insolvency." The same deft. said the plt. afterwards wrote to him, the deft, requesting the loan of 20%, which was refused. Defts. positively denied that there remained a large or any balance of the personal estate received by them, or any of them. The deft. Sanderson said that they applied the proceeds arising from the sale of the ship Diadem, 50 far as the same would extend, in payment of the debts of the testator. This sale was made in the month of April 1838, for the sum of 1000%., and the defts. alleged that after such sale, upon payment of the expenses the testator's will, of the principal sum of 9001 and interest to Worrill's executors, and of 2501 and interest to Mrs. Harker, there remained a balance of 4001. and interest still due to them, the defts. Sanderson. The deft. Dryden said, that on the 27th Feb. 1836, the testator borrowed 501. of him, on his memorandum, which was still unpaid; that after the testator's death he paid the sum of 431. 1s. 11d. out of his own moneys of for a schoolmaster's bill for the education of the plt. and his brother, and he afterwards caused the plt. and his brother to be removed from Hamburg and placed under the protection of their grand-aunt, Mrs. Harker. In the last paragraph of the answer, the defts. Sanderson said: "We say that the prosecution of this suit can lead to no useful result, as there is no estate of the testator's remaining unapplied; but, as the executors under the said will, we, these defts., are ready and willing to account for the said estate as this hon. court shall be pleased to direct, on being paid and indemnified our reasonable costs on this behalf." An administration decree was made on the 5th May 1860, and in pursuance of the inquiries thereby directed the chief clerk, by a certificate dated the 2nd July 1861, found that the defts. Joseph and John Sanderson, the executors, had received personal estate not specifically bequeathed to the amount of 13824. 18. ld., and they had paid or were entitled to be allowed on account thereof sums to the amount of 11791. 5s. 9d., leaving a balance due from them of 2021. 15s. 4d. on that account; also that the only debt of the testator which had been allowed was one of 521. 4s. 2d. due to the deft. Wm. Dryden. The legacy of 50%. to the widow had not been paid, and was due to her representatives. The annuity of 2001. also was never paid. The plt. now moved to vary the certificate by being allowed to charge certain items which the chief clerk had disallowed. The remaining facts in the case will be found stated in his Honour's judgment. Malins, Q. C. and T. H. Terrell appeared for the plt. Bacon, Q.C. and Renshaw for the defts. Sanderson. [V.C. S. who afterwards carried in an account which they swore The VICE-CHANCELLOR.-There is no doubt about the balance due, and, I think, no doubt of the plt.'s right to charge the executors, the Sandersons, with in-charge there was an inquiry directed by the decree terest at 4 per cent. on that balance from April 1838. as to what real estate the testator had. I have not There must be a direction to pay that balance, with in- found anything to justify the plt. in adhering to that terest at 4 per cent. from April 1838, the amount to charge, or in asking for that inquiry; and I think I be verified by affidavit. The material question is as to can only allow, therefore, to the plt. and charge the the costs of the suit. It is the duty of executors to defts. Sanderson with the costs of the suit, except so keep proper accounts, and to have those accounts much of the suit as relates to the real estate. I have ready for the inspection and examination of those who considered whether strict justice requires that the are entitled to them. Before this bill was filed, re- costs of that part of the suit which relates to the peated applications were made by the plt. for informa-real estate should fall upon the plt., and I have felt tion as to the state of the assets. No account was rendered to him; indeed, he was ultimately told that, unless he came with a professional man, they would not give him any further information, but that he was under some delusion with regard to the testator's estate. The plt., under these circumstances, filed his bill to compel the executors Sanderson to render an account. By their answer they swear, in the strongest terms, that nothing is due, that the suit is vexatious; and in that last passage of the answer which has been read, the expressions are as strong as can well be to show that no good result could follow from taking the accounts that were sought by the bill. The court decreed the accounts to be taken; and upon the result, the first thing done is, that the Sandersons carry in an account, claiming a balance of 400l., no doubt very improperly claimed, as due to them. Then, when that account was directed to be remodelled, they brought in an account confined to their dealings with the assets after the testator's death, and upon that account they claimed a balance due to them of 60%, upon which they charged interest. The chief clerk, after a laborious and contentious examination of the accounts, attended with very considerable expense, when he had completed his work, found that a balance of 2021, was due from these executors, who first swore that the suit was vexatious, that nothing was due, and very considerable doubt upon it. Upon the result I think it does. I think it is a demand not made with sufficient ground to justify it, and which has occasioned some expense. Therefore the defts. Sanderson (not Dryden) must pay the taxed costs of the suit, except so much as relates to the real estate. It is too late to dismiss the bill as to the real estate, the decree having been made; but the costs of so much of the suit as has been occasioned by the relief sought in respect of real estate must be taxed and paid by the plt., and the amount deducted and set off against the costs which are payable from the defts. Sanderson. As to the motion to vary the certificate, the motion has failed; but the circumstances of the case are by no means clear. I do not feel sufficiently satisfied upon any one of the points brought forward on behalf of the plt. to justify me in varying the certificate; but it is impossible to say the case is so clear that the plt. was not justified in bringing these matters before the court. Therefore the motion to vary the certificate is refused without costs. There will be no costs on either side as to that part of the motion. The sum of 521. 4s. was ordered to be paid to the deft. Dryden; and the balance to be paid into court, inasmuch as the plt. did not allege a complete title, and there were other persons V.C. W.] 1848 AND 1849, &c.-Re MACFARLANE. Re THE WINDING-UP ACTS interested; with liberty to all parties to as to payment out. Solicitors: for the plt., Frederick Asprey; Alfred Watson; for the defts. Sanderson, Cunliffe v. Beau mont. V. C. WOOD'S COURT. Reported by W. H. BENNET, Esq., Barrister-at-Law. Monday, March 3. Re THE WINDING-UP ACTS 1848 AND 1849, AND Practice. Leave given to present a petition to have a mining This was an application for leave to file a petition in this court for the purpose of having a company called the Tretoil and Messer Mining Company wound-up under the usual order. [V.C. W. amount, which had been discounted by the purser and managers of the mines, and indorsed away by them to creditors of the company. Part of these bills became due on the 2nd Sept. 1861, and the remainder on the 2nd Nov. following, all of which, when due, were dishonoured by the acceptor. A resolution to wind-up the company was the consequence. The debts of the company were about 4000l., and the assets not sufficient to pay more than half of that sum. Two actions had been commenced against the petitioners by creditors of the company. The petition then contained the following allegation, which was duly proved: "That the said mines were within and subject to the jurisdiction of the court of the Vice-Warden of the Stannaries, which was now invested with the power of dissolving and winding-up unincorporated companies within its jurisdiction; but said court was wholly unableto effectually dissolve and wind-up said company, inasmuch as it has no power to do justice to your petitioners in respect of the aforesaid debts, the one of which has been paid by your petitioner Louis Stauffer, and for the other of which your petitioner Alexander Charles Barclay is being sued as aforesaid, the said court having no power to order the other shareholders, many of whom have neglected or refused to pay the amounts due from them for calls, to contribute to recoup your petitioners in respect of the said debts, or to protect either your petitioners or any other shareholder against the proceedings of the said Martyn, or any other creditor of the said company. In fact, the only modes of winding-upa company in the said court are either by a petition by one or more shareholder or shareholders against all the other adventurers, making them all parties, and serving all, and praying for a general account and contribution, but which does not enable the court to restrain proceedings by creditors against the shareholders individually: or, by a petition by a creditor praying for a sale of the machinery and assets of the company, and the division of the proceeds Daniel, Q.C., in support of the application, stated amongst the creditors who may choose to prove for that the Court of the Stannaries had no powers by their debts; and, in case of deficiency, the same to be which they could enforce contribution amongst share-made good by the shareholders rateably, but which holders in a mining concern inter se, or to stop legal does not enable the court to protect individual shareproceedings against a shareholder pending the proceed-holders from being proceeded against by the creditors ings for winding-up the concerns of such company. elsewhere." The 12th section of the Joint-Stock Companies Amendment Act 1857 (20 & 21 Vict. c 78), is as follows:-" And whereas the dissolution and windingup of unincorporated companies for working mines within and subject to the jurisdiction of the Stannaries can now in most cases be conveniently, cheaply and expeditiously effected in the court of the Vice-Warden of the Staunaries. Be it enacted, that no petition shall hereafter be filed in the Court of Ch. under the JointStock Companies Winding-up Acts 1848 and 1849, by any adventurer or shareholder in such a company, except upon special application to that court, alleging and showing to the satisfaction of the court that the company cannot be effectually dissolved or wound-up in the court of the vice-warden, or unless the vicewarden shall certify to the Court of Ch. that the jurisdiction and powers of his court are, under the circumstances, insufficient effectually to dissolve or wind-up the same." The VICE-CHANCELLOR, on this representation, gave leave to file the petition. March 15 and 22. Winding-up Acts—Jurisdiction-Court of the Vice- That other creditors threatened to take proceedings for the amounts of their demands of the company. The petition then prayed the usual order to dissolve and wind-up the company. Daniel, Q.C. and Beales in support of the petition. The VICE-CHANCELLOR considered that the allegation and proof that the court of the Vice-Warden of the Stannaries did not possess sufficient powers to do justice between the shareholders was made out within the provisions of sect. 12 of the Winding-up Amendment Act of 1857, and made the usual order to wind-upthe company in this court. Ordered accordingly. Solicitors, Messrs. Vallance and Vallance, Gregory and Co. The above petition now came on for a hearing. It appeared by the affidavits in support, that before March 1859 certain persons were associated together in partnership as shareholders in a joint-stock company for the working of certain copper mines in Cornwall called the Tretoil and Messer Mining Company, upon the "cost-book principle," in 8000 equal shares; and the usual committee of management, consisting of five Practice-Jurisdiction persons, was appointed. That one of the petitioners, A. C. Barclay, was the proprietor of 630 shares, for which he had paid 1700Z., the full amount due on such shares; and the other petitioner, Louis Stauffer, held 240 shares, all sums due in respect thereof having been paid up by him. That the adventure had been unprofitable and unsuccessful, and in consequence a sale of the mine and machinery had been made to a Mr. Longbottom for 20007. He had given various bills of exchange for this Saturday, March 8. Lunacy-Past maintenance of lunatic. A sum of stock had been transferred into court, under the Trustee Relief Act, which sum belonged to a person of unsound mind, not found lunatic by inquisition; the court, on a petition, under its ordinary jurisdiction, ordered the amount to be paid to the father, on account of the past maintenance of the lunatic, and on an undertaking by him to continue the due and proper future maintenance of his son. V.C. W.] NEWTON V. MARSDEN. It appeared, by the evidence, that this sum of stock had been transferred into court by the trustees and executors of the will of a Mr. Blanch, and that it belonged to George Macfarlane, the son, who came of age in July 1848; that for three years, from March 1856 to March 1859, he had been under the care of Dr. Sutherland, at an expense of upwards of 470l., and from that time to the present had been and now was under the care of Dr. Willett, at an expense of upwards of 3301. The sum in court was the only property to which George Macfarlane was entitled. His father had satisfed the sums due to Drs. Sutherland and Willett respectively, and had expended besides a very considerable sum for the use of his son. [V.C. W. This was a petition presented to the court by the I pointed the plts. Thoma's Newton, Thomas Hone and father and next friend of George Macfarlane, a person William Marsden trustees of his said will, and he of full age, but of unsound mind, not found a lunatic thereby appointed the said Thomas Newton, Thomas by inquisition, praying that a sum of 6331. Three per Hone, William Marsden and the deft. Caroline Cent. Consols might be sold, and the amount, after Marsden (then Caroline Derbyshire, the widow of the payment of the costs of the application, paid to the testator's nephew, John Derbyshire, deceased), joint petitioner. executors and executrix thereof. And the said testator thereby devised unto his said trustees the several pieces of land and hereditaments in his said will, firstly, secondly, thirdly, fourthly, fifthly, sixthly, seventhly, eighthly, ninthly, tenthly, and eleventhly described. And the testator thereby directed that his trustees should stand seised and possessed of the said hereditaments and premises firstly, secondly, thirdly, fourthly, fifthly, sixthly, seventhly and eighthly thereinbefore described, upon certain trusts, for the benefit of Joseph Derbyshire the elder during his life. And as to one undivided moiety of the said firstly described premises, and as to the entirety of the said secondly described premises, upon trust, from and out of the rents and profits thereof, to pay unto the said testator's nephew, Thomas Frost, an annuity of 81. during his life; and upon further trust to pay the residue of the said rents and profits unto the said Caroline Marsden (then Caroline Derbyshire, widow), until his great-nephew, the above-named deft. William Derbyshire, should attain the age of twenty-one years, if she should so long live, for the maintenance and support of herself, and for the maintenance, education and support of the said William Derbyshire; and from and immediately after the said William Derbyshire should attain the age of twenty-one years, Smith, in reply, referred to Re Berry, 13 Beav. 455. then upon trust from and out of the said rents and The VICE-CHANCELLOR said that applications for profits to pay unto the said Caroline Marsden an the payment of money out of court belonging to per- annuity of 61. during her life, and subject to the trusts sens of unsound mind not found lunatic by inquisition, thereinbefore expressed, in trust for the said William and similar applications, were properly made to the Derbyshire absolutely. And as to the said undivided court in its ordinary jurisdiction. He therefore, on an moiety of the said firstly described premises, and the undertaking by the father to continue the due and entirety of the said thirdly described premises, upon proper maintenance of his son, made an order in ac- trust by and out of the rents and profits thereof to cordance with the prayer of the petition, directing the pay unto the said Thomas Frost another annuity of 81. sale of the stock in court and payment of the proceeds during his life; and upon further trust to pay the to the father, in satisfaction, so far as the same would residue of the said rents and profits unto the said extend, of the moneys expended by him for past main-Caroline Marsden until the said testator's great-nephew, Ordered accordingly. It appeared also from the affidavits of Dr. Willett that there was no probability of the recovery of the lunatic from the malady with which he was afflicted. R. Horton Smith, in support of the petition, cited Re Law, 30 L. J. 512, Ch. Decap, for the trustees of the will, suggested that the petition should have been presented in lunacy, and not to the ordinary jurisdiction of the court, and cited Re Irby, 17 Beav. 334. tenance. Solicitors, Messrs. Holmes and Impey. March 8 and 21. Will-Construction-Restraint of marriage-Widow, not of testator. A testator, by his will, gave certain interests arising from the proceeds of real estate to C. M., the widow of a nephew of the testator, for the benefit of herself and her children, till the children respectively attained their ages of twenty-one; and after they should respectively attain that age he gave small annuities to the widow for life: and he declared that if the said C. M. should marry again, then the trusts for the payments to her during the infancies of her several children, and those for the payment to herself of the annuities after the respective children coming of "should thereupon absolutely cease and be age, roid." The widow of the nephew married again : SPECIAL CASE. the above-named deft. Frederick Derbyshire, should attain the age of twenty-one years, if she should so long live, for the maintenance and support of herself, and for the maintenance, education and support of the said Frederick Derbyshire; and from and immediately after the said Frederick Derbyshire should attain the said age of twenty-one years, upon trust from and out of the said rents and profits to pay unto the said Caroline Marsden another annuity of 67. during her life, and subject to the trusts lastly therein before expressed in trust for the said Frederick Derbyshire absolutely. And as to the said fourthly described premises, subject to the said estate for life therein of the said Joseph Derbyshire the elder, and as to the said fifthly described premises, upon trust from and out of the rents and profits thereof to pay unto the said Thomas Frost another annuity of 8. during his life, and upon further trust to pay the residue of the said rents and profits unto the said Caroline Marsden until the said testator's great-nephew, the above-named deft. John Derbyshire, should attain the age of twenty-one years, if she should so long live, for the maintenance and support of herself and for the maintenance, support and education of the said John Derbyshire; and from and immediately after the said John Derbyshire should attain the age of twenty-one years, then upon trust from and out of the said rents and profits to pay unto the said Caroline Marsden another annuity of 67. during her life, and subject to the said trusts lastly thereinbefore expressed, in trust for the said John Derbyshire absolutely. And as to the said sixthly described premises, upon trust Evans. v. Rissall 10 £ 5. ns. 159 VC [V.C. W. John Derbyshire, Joseph Derbyshire, Caroline Derbyshire, and Annie Derbyshire respectively, are infants under the age of twenty-one years. said William Derbyshire, Frederick Derbyshire, John Derbyshire, Joseph Derbyshire, Caroline Derbyshire, and Annie Derbyshire, the said William Derbyshire was appointed to be their special guardian for the purpose of concurring in this special case in their name and on their behalf. The above-named plts. and defts. concur in stating the following questions for the opinion of the court, viz. :— 1. Whether, by the said marriage of the said Caroline Marsden with the said Benjamin Marsden, the trusts in the said will of the said William Frost contained for payment to her during the infaney of the said William Derbyshire, Frederick Derbyshire, John Derbyshire, Caroline Derbyshire, and Annie Derbyshire of the rents and profits of the hereditaments and premises by the said will devised to or in trust for them respectively, ceased and became void. 2. Whether, by the marriage of said Caroline Marsden with said Benjamin Marsden, the trusts in the said will contained for payment of the said several annuities in the said will given to or in trust for the said Caroline Marsden, ceased and became void. from and out of the rents and profits thereof, to pay unto the said Thomas Frost another annuity of 8. during his life; and upon further trust to pay the residue of the said rents and profits unto the said By an order bearing date the 13th July 1861, made Caroline Marsden until the said testator's great-nephew, by his Honour, Wood, V.C., in the matter of an Act of the deft. Joseph Derbyshire, should attain the age of Parliament, 13 & 14 Vict. c. 35, and in the matter of twenty-one years, if she should so long live, for the William Derbyshire, Frederick Derbyshire, John Derbymaintenance and support of herself, and for the main-shire, Joseph Derbyshire, Caroline Derbyshire, and tenance, education and support of the deft. Joseph | Annie Derbyshire, infants, upon the application of the Derbyshire; and from and immediately after the deft. Joseph Derbyshire should attain the age of twenty-one years, then upon trust from and out of the said rents and profits to pay unto the said Caroline Marsden another annuity of 67. during her life, and subject to the said trusts lastly thereinbefore expressed, in trust for the deft. Joseph Derbyshire absolutely. And as to the said seventhly described premises, upon trust by and out of the rents and profits thereof to pay unto the said Thomas Frost another annuity of 37. during his life; and upon further trust to pay the residue of the said rents and profits unto the said Caroline Marsden until the said testator's great-niece, the above-named deft. Caroline Derbyshire, should attain the age of twenty-one years, if she, the said Caroline Marsden, should so long live, for the maintenance and support of herself, and for the maintenance, education and support of the said Caroline Derbyshire; and from and immediately after the said testator's great-niece should attain the age of twenty-one years, upon trust from and out of the said rents and profits to pay unto the said Caroline Marsden another annuity of 31. during her life, and subject to the said trusts lastly thereinbefore expressed, in trust for the said Caroline Derbyshire absolutely. And as to the said eighthly described premises, upon trust from and out of the rents and profits thereof to pay unto the said Thomas Frost another annuity of 31. during his life, and upon further trust to pay the residue of the said rents and profits unto the said Caroline Marsden, until the said testator's great-niece, the deft. Annie Derbyshire, should attain the age of twenty-one years, if she, the said Caroline Marsden, should so long live, for the maintenance and support of herself, and for the maintenance, education and support of the said Annie Derbyshire; and from and immediately after the said Annie Derby- Archibald Smith, for the husband and wife (who had shire should attain the age of twenty-one years, upon been the widow of the testator's nephew), admitted that if trust from and out of the said rents and profits to pay the restriction against the second marriage had been in to the said Caroline Marsden another annuity of 31. reference to the testator's own widow,it might have been a during her life, and subject to the trusts lastly therein- valid condition; but the present, as being one with before expressed, in trust for the said Annie Derby-reference to the widow of a third party, was wholly shire absolutely. And the said testator declared that if bad and against public policy. The present condition the said Caroline Marsden, then Caroline Derbyshire, related solely to real estate, and the cases which had widow, should marry again, then that the trusts therein been decided upon the question all related to personalty and thereinbefore contained, for payment to her during and did not apply in the present case. After comthe infancy of the said William Derbyshire, Frederick menting on the cases which would probably be cited on Derbyshire, John Derbyshire, Joseph Derbyshire, Caro- the other side (Scott v. Tyler, Bro. C. G. 488; line Derbyshire and Annie Derbyshire of the rents | Morley v. Reynoldson, 2 Hare, 176; and Heath v. Lewis, and profits of the hereditaments and premises therein-3 De G. M. & G. 954), he relied upon Bac. Ab. "Lagabefore devised to or in trust for them respectively, cies," Div. A. 411; Godol. Orphan's Leg. 45; the and the trusts for payment of the said several annuities Novells Civ. L. ch. 44; Rushton v. Cobb, 9 Sim. 33; thereinbefore given to or in trust for her the said Grace v. Webb, 15 Sim. 384; reversed on appeal, 2 Caroline Marsden, should thereupon absolutely cease Phill. 581; Lloyd v. Lloyd, 2 Sim. N. S. 255. and be void. present was quite a novel case, and the court would not extend the doctrine in favour of restraining conditions. The testator afterwards made a codicil, dated the 30th March 1860, to his said will. But such codicil did not in any way revoke or alter the said will so far as the same is herein before stated. The testator died on the 27th April 1860, and his said will and codicil were duly proved by the executors and the executrix. Thomas Frost, the nephew of the said testator, died on the 21st Sept. 1860. The said Caroline Marsden (then Caroline Derbyshire, widow) intermarried with Benjamin Marsden, her present husband, on the 2nd April 1861. The said William Derbyshire, Frederick Derbyshire, 3. Whether, in case the said trusts, or either of them, ceased and became void by such marriage, the said rents and profits, and the said annuities, or any of them, were apportionable. And whether a proportionate part thereof respectively was payable up to and including the day of the said marriage of the said Caroline Marsden, or up to what time were the same payable. 4. By whom or out of what fund ought the costs of this special case to be paid? W. Hislop Clarke, for the trustees of the will, submitted these questions to the court. The Chapman Barber, for the infant children, contended that the condition was a valid condition, and that the legatee having married, all the trusts of the will which had been created for her benefit failed. The obvious intention of the testator was to provide for the children of his deceased nephew, and in the event of their mother's second marriage that such benefit should be increased. In addition to the three cases commented upon by Mr. A. Smith (above referred to), he cited Scott v. Tyler, and as reported in Dickens, 712; 2 Jarm. 836; Bac. Abr. "Marriage and Divorce;" Doe v. Pearce, 1 |