of the children being an infant, declined to decide the proper construction of the bequest upon petition, and directed a suit to be instituted.

The bill in the present case was accordingly filed by the two children against the executors and against their parents, praying a declaration in accordance with the allegations of the petition.

Mr. Turner and Mr. W. D. Evans, for the plaintiffs.-There are two questions. First, whether the parents take life interests with remainder to the children, or whether, on the other hand, the parents and children take together as joint tenants. Second, supposing the latter to be held, whether Capt. Gordon and his wife are to be reckoned as two persons or as one. The rule of law, on the former point, recognized in Wild's case (1) and acted upon ever since, is, that if there is a simple gift to parents and children, and there be children living at the time, the children take with their parents: if there be no children living at the time, then the parents take for their lives, with remainder to their children.

[The MASTER OF THE ROLLS intimated his concurrence in this view, saying that he believed in all the instances where, in case of there being children living at the time, the parents had been held to take life interests with remainder to the children, the gifts had not been simple, but had contained some intimation of an intention that they should so take.]

On the second point, the rule of law is stated in Littleton (2) "If a joint estate be made of land to a husband and wife and to a third person, in this case the husband and wife have in law in their right but the moiety. And the cause is for that the husband and wife are but one person in law. In the same manner it is where an estate is made to the husband and wife and to two other men in this case the husband and wife have but the third part and the other two men the other two parts.” The anonymous case reported in Skinner (3) is an authority exactly in point to the same effect, and was, like the present, the case of a legacy. Bricker v. Whatley (4), though

(1) 6 Rep. 16, b.

(2) Section 291.

(3) Skinner, 182; s. c. 4 Vin. Abr. 154, pl. 10. (4) 1 Vern. 233.

treated with some specialty, also contains a recognition of the general rule. The bequest there was "in equal shares between the testator's kinsman, Richard Bricker, Christian Bricker his sister, and his cousin Stephen Whatley and Hester his wife, equally to be divided amongst them," and "it being proved that the wife was only of kin to the testator and not the husband, the Lord Keeper was of opinion that the husband and wife should have but onethird part, and the rather for that he observed the two ands in this devise, viz.to A. B. and C. and his wife: and though a man may devise to ten persons, and add an and betwixt every person's name, yet it is not natural or usual to add an and till you come to the last person." Back v. Andrew (5) is another authority in which the general rule stated by Littleton is recognized. No authorities having a tendency to impugn the rule are to be found until the modern cases of Paine v. Wagner (6) and Warrington v. Warrington (7). The former is perhaps distinguishable from those which have been cited, and from the present, inasmuch as the family between whom the question arose, were named and described as "Mr. and Mrs. W. and children." The Vice Chancellor says, "all the parties who are either named or described are to take as between themselves as tenants in common." His Honour seems, too, to have dwelt on the last circumstance, and to have considered himself authorized to escape from the effect of the rule, by holding that the parties were not to take as joint tenants: a ground of distinction which, it is submitted, is not tenable, and which was expressly disclaimed by Vice Chancellor Wigram, in Warrington v. War rington. With respect to that case, his Honour distinguished it from those put by Littleton, by noticing that the husband and wife were not placed first in the enumeration, as is always done in Littleton's illustrations, and from Bricker v. Whatley by noticing that the word "and" did not, as there, occur before the husband's name to afford an indication of his being intended as the last person in the enumeration. Whether, however, these recent cases are or are not

(5) 2 Vern. 120. (6) 12 Sim. 184. (7) 2 Hare, 54.

distinguishable in their circumstances from the older authorities, it is submitted that the general rule laid down by Littleton was clearly established, and that it must be considered still to be the law.

Mr. Ayrton, for the executors.

Mr. Doria, for the defendant Capt. Gordon, contended that the intention of the testatrix was that the parents should take life interests with remainder to the children; but that if the Court should hold itself precluded from adopting this view, then that the parents were each entitled to an equal share with the children. In support of the former, he cited Morse v. Morse (8) and Jeffery v. Honywood (9.)

Mr. Amphlett, for the defendant, Mrs. Gordon.-There can be little doubt that in all gifts of this kind the real intention (though it may have failed to be expressed or intimated,) is, that the parents should take for their lives with remainder to the children. With respect to the general rule to the contrary, supposed to have been established by Wild's case, it may be remarked, that no question of the kind was really in issue in that case, and that the rule as there stated may consequently be looked upon as a mere dictum. Even, however, if it is to be taken as the rule, where no contrary intention is intimated by the testator, it is contended that the present codicil does afford some evidence of a contrary intention. Looking at the reasons assigned for the bequest in the case of Mr. Atcheson, it appears clear that in these legacies the father was the primary object of the testatrix's bounty, and that the regard for the children was simply derivative from that intended to be manifested for the parent. This consideration would lead to the conclusion, that all the children of the father were meant to share in the benefit of his legacy, those after-born as well as those living at the death of the testatrix. In no other way, however, could this result be accomplished than by giving life interests to the parents. Supposing that the Court should come to a contrary decision on this point, and hold that the parents and the children living at the death of the testatrix are to take together as joint tenants, then

(8) 2 Sim. 485. (9) 4 Madd. 398.

it is submitted that, notwithstanding the rule laid down by Littleton, each of the parents is entitled to an equal share with the children. The proposition that husband and wife are to be regarded as one person, is true for some purposes, such as questions of tenure, which were principally in Littleton's contemplation, but it cannot be considered true for all purposes. The case of The Attorney General v. Bacchus (10) is an instance to the contrary. The real question is, what was the intention of the testatrix, as it can be gathered from the mode of expression made use of. The circumstance of the word "and" before the husband's name, of which the occurrence in the case of Bricker v. Whatley, and the omission in the case of Warrington v. Warrington was relied on, as affording in the one case a presumption that he was and in the other that he was not to be regarded as the last person in the enumeration, may have been rightly so relied on in those cases where the husband and wife came last in the enumeration. The case is entirely different where, as in the present instance, the husband and wife come first in the enumeration; and the question then is, what inference is to be drawn from the insertion or omission of the word "and" between the names of the husband and wife. It is submitted that in these circumstances the case is just reversed, and that the insertion of the word would be the ground for presuming the husband and wife to have been regarded as one person, and that the contrary inference is to be drawn from its omission : "To Capt. Robert Gordon and his wife, and his children," would have been the natural mode of expression if the testatrix had looked upon the husband and wife as one person. "To Capt. Robert Gordon, his wife and children," shews her to have contemplated them as distinct. Take the case of a person speaking of the three estates of the realm as consisting of "The Lords Spiritual and the Lords Temporal and the House of Commons," there would be nothing in the expression itself inconsistent with the notion that the speaker regarded the Lords Spiritual and the Lords Temporal as forming one political body; but if the expression had been "The Lords Spiritual, the Lords

(10) 9 Price, 30; s. c. 11 Ibid. 547.

Temporal and the House of Commons," the absence of any connecting particle between the two first bodies would repel the notion that the speaker regarded them as

one.

Mr. Turner, in reply.

The MASTER OF THE ROLLS said, he must look at the cases. From the bequest itself he could collect nothing more than an intention that the husband, wife and children should all derive a benefit from it.

-

Aug. 3.-The MASTER OF THE ROLLS.The only intention of the testatrix which is indicated by the will is, that a legacy of 3,000l. should be given to Capt. Robert Gordon, his wife and children. The testatrix has used no words from which it can be discovered what, if any, intention she had with respect to the proportions in which the legatees were to take and enjoy the legacy thus given to them jointly. Under such circumstances the proportion must be determined by the ordinary rule of law applicable to such cases, and there being nothing to distinguish the present case from those in which the rule stated in Littleton, and applied in the several cases cited at the bar, was acted upon, I am of opinion that the legatees must take in thirds-viz. the husband and wife one, and the two children each of them one.

formed part of his estate in the hands of his executors; that an instrument of assignment, bearing date the 7th of December 1842, was made between the said testator and E. Q, which recited the said policies of assurance, and further recited that the said testator and E. Q. had for several years past cohabited together, and the said E. Q. had had and borne four children during such cohabitation, and who were then respectively living, and that the said testator had determined to discontinue such cohabitation, and was desirous of making provision for the future maintenance of the said E. Q. and her said children, and for that purpose had agreed to secure unto her the payment of the annual sum of 250l., by equal quarterly payments, for and during his natural life, if the said E. Q. should so long live, and to assign to her the said two several policies of assurance, and to continue the same respectively on foot during his life, as a provision for the said E. Q. and her said children in case of his decease in her lifetime, but on condition that the monies to be received upon and by virtue of the said policies should be settled by the said E. Q. for the benefit of herself and her said four children as thereinafter expressed, and the said policies in the mean time to be held upon and subject to the like trusts; and by the said deed of assignment it was witnessed, that in performance of the said agreement, and in consideration of the connexion which had theretofore existed between the said testator and E. Q., the said testator covenanted with E. Q. to pay her the said annuity of 250l. during his life and the said testator further assigned unto E. Q, her executors and administrators, the two before-mentioned policies of assurance, and the sums to become payable by virtue thereof; to hold the same upon the trusts therein mentioned, for the benefit of herself for life, and afterwards for her said four children.

The bill charged that if the said alleged indenture of assignment was in fact executed by the said testator, yet that the same was so executed by him at a time when he was insolvent or embarrassed, or at a time when he was indebted to divers persons in considerable sums of money; and that the same was executed by him without any pecuniary or

other good or valuable consideration for the same; and that the said testator never parted with the custody or possession of the said policies or either of them, but retained the same in his possession or power until the time of his decease, and that he from time to time paid the annual premiums which became due and payable in respect of the said policies, and that a considerable part of his estate and effects was applied in or towards payment of such premiums, and which but for such payment would have been assets for payment of the debts of the plaintiffs and the other creditors of the testator. That no notice of the said alleged assignment was given to the said insurance companies or either of them until after the death of the said testator, and that the said policies of assurance were not, nor was either of them, handed over to the said E. Q. in the lifetime of the said testator, or until some time after his decease. That after the death of the testator the sums payable under the said policies amounted to 2,250l. and 3,000l. That the said alleged indenture of assignment (if any) was and is fraudulent and void as against the plaintiffs and the other unsatisfied creditors of the said testator; and that the plaintiffs and the other unsatisfied creditors of the said testator are entitled to have the said insurance and other monies, or so much thereof as may be necessary for that purpose, applied in aid of the other personal estate and effects of the said testator, in payment and satisfaction of the debts due and owing to the plaintiffs and the other creditors aforesaid.

The bill prayed that it might be declared that the said indenture of assignment was fraudulent and void as against the creditors of the testator, and that the monies assured and made payable by the said two policies of assurance were applicable to the payment of his debts.

For the defendant, it was contended, that the testator, although indebted to some extent at the time of executing the assignment, was not so largely indebted as to make the deed void against his creditors, and that the circumstances under which the assignment was prepared were not such as to render it void as against the said E. Q.

Mr. Stuart and Mr. Younge appeared for the plaintiffs, and

NEW SERIES, XVIII.-CHANC.

Mr. Bethell, Mr. Bacon and Mr. Southgate for other parties.

Nov. 11.-The VICE CHANCELLOR.-The only reason for which I reserved my judgment in this case was on account of certain representations as to certain statements in the bill; but it appears to me there is quite enough to reveal more than is necessary. It is stated that the party was embarrassed and insolvent at the time: that is superfluous. It is quite enough to prove that he was indebted at the time. In attending to the language in Lord Townshend v. Windham (1), Lord Hardwicke says, "I know no case on the 13th Elizabeth, where a man indebted at the time makes a mere voluntary conveyance to a child without consideration and dies indebted, but that it shall be considered as part of his estate for the benefit of his creditors." There is no doubt whatever in this case. The only observation I have to make is, that it is rather a worse case for the defendant, the unfortunate woman, than I had thought, because in that very second volume of Vesey there stands the case of Priest v. Parrot (2), where Lord Hardwicke refused to countenance the provision for a woman who had been living with a married man, in contradistinction to a woman living with a single man, considering it as a præmium pudicitiæ. It struck me more forcibly because in Lord Campbell's Lives of the Chancellors, his Lordship selects it as a prominent case for the purpose of shewing what was the turn of Lord Hardwicke's mind as to his decisions. It appears to me, in this case, there must be a decree that the settlement is void as against creditors: the money in the hands of the executors to be assets for the payment of the testator's debts.

uses as her husband should appoint, and in default of appointment, to him in fee, but no admittance was entered under the surrender. The husband then executed a conveyance of the copyholds to a purchaser, but still no admittance was entered. The plaintiff, who claimed under the purchaser, filed a bill to restrain an action of ejectment by the copyhold heir of the wife, and to compel a surrender to complete his title:-Held, that the husband of the copyholder had no power to make perfect that title which he, as a volunteer, and without consideration, took imperfectly, and no person claiming under him could ask that his defective title should be made complete; and the bill was dismissed, with costs.

The bill stated that Mary Gutteridge was entitled in fee to a moiety of certain copyhold hereditaments, to which she had been admitted, and she and her husband, James Gutteridge, in November 1782, surrendered this moiety to the use of herself for life, with remainder to the use of her husband for life, with remainder to the use of her heirs in fee, and she was admitted in March 1787 as tenant for her life. In September 1791 she and her husband surrendered the moiety to the use of herself, for the joint lives of herself and her husband, with remainder to him for life, with remainder to such uses as he should by will appoint, and in default of appointment to him in fee. No admittance was ever made of J. Gutteridge to the copyholds under this surrender, and in 1796 M. Gutteridge died, leaving, as her copyhold heir, a son, named James. In 1791, the husband purchased the other moiety; and in January 1820, he contracted to sell the entirety to William Oakley. W. Oakley, in February 1826, was admitted in pursuance of this contract.

W. Oakley, the purchaser, by his will, devised his estate to his nephew, Richard Oakley, and died in 1834. In 1843 a contract was entered into by R. Oakley for the sale of this property, together with some other property for 22,9417., and a release was executed by R. Oakley in August 1843, under which the plaintiffs became entitled to the copyholds, but no surrender was ever made of them.

In 1822 J. Gutteridge, the eldest son and heir of Mary, died intestate, leaving the

defendant his only son and heir. J. Gutteridge, the husband of Mary, died in 1830.

J. Gutteridge, the grandson of Mary, had commenced an action of ejectment for recovering possession of the copyholds, insisting that as J. Gutteridge, the husband, had never been admitted, the estate descended to the defendant as heir of Mary.

The plaintiffs thereupon filed this bill, praying for an injunction to restrain the defendant from proceeding with the action of ejectment, and that the defendant might be ordered to be admitted as tenant, and then to surrender to the plaintiffs, and do all necessary acts for vesting the whole estate in them.

The cause was first heard before the Vice Chancellor of England, who gave the following decision:

The VICE CHANCELLOR.-When this case was opened certain cases were cited, in which the Court, where there has been a power to appoint, has relieved against defective execution, when it was for valuable consideration. No doubt that is the law of the Court. The question now is, what the law ought to be, deduced from the cases cited. [His Honour then went through the facts of the case.] It appears to me that this case has no resemblance to the case of a power well created but imperfectly executed; here there was no attempt on the part of Mary and James Gutteridge to vest the copyhold fee in James Gutteridge, but merely a voluntary instrument, and left imperfect because there was no admittance, and J. Gutteridge had no power to make perfect that title, which he, as a volunteer, took imperfectly. It appears to me this is a case in which, inasmuch as there was no valuable consideration to be considered as the foundation of the copyhold title of James Gutteridge, no person claiming under him can ask that his defective title shall be made complete. The bill must, therefore, be dismissed with costs.

The plaintiffs appealed from this decision, and the case was re-argued before the Lord Chancellor, by

Mr. J. Parker and Mr. Burdon, for the plaintiffs. plaintiffs. The plaintiffs claim under a purchase deed, which was executed for a good consideration, and the parties from whom they purchased were ancestors of the