a time for payment of it. Then, by this third codicil, he makes an alteration in the time of payment appointed by his will, and directs that the legacy shall not be paid until 12 months after the death of his wife: whereas, by his will, he had directed that it should be paid within 12 months after that event. And although it is true, in the abstract, that the republication of the will was a republication of the codicil, yet, taking all these instruments together, my opinion is that there is a gift of a legacy of 1,000 l. to Ganning.

LAUTOUR v. HOLCOMBE.

THE bill was filed by an uncertificated bankrupt against his assignees and certain other parties(a). The assignees put in their answer, and, afterwards, obtained an Order dismissing the bill, as against themselves, for want of prosecution, with costs.

1842: 17th March.

Practice. Parties. Supplemental Bill. Dismissal.

Where a bill
has been dis-
missed for want

The cause now came on to be heard, as against the of prosecution other Defendants.

Mr. Bethell and Mr. Beavan, for those Defendants, contended that the assignees were necessary parties, and

that the suit could not be heard in their absence..

Mr. Wakefield, Mr. Koe and Mr. Lovat, for the Plaintiff, contended that the assignees were not neces

sary parties.

(a) See ante, Vol. VIII. p. 76.

against a Defendant, who, at the hearing is held to be a necessary party;

the Court will not allow the Plaintiff to bring him before the Court again by supplemental bill, but will dismiss the bill with costs.

1842. LAUTOUR

27.

HOLCOMBE.

The Vice-Chancellor, however, ruled the contrary.

The Plaintiff's counsel then asked that the cause might stand over, and that the Plaintiff might be at liberty to file a supplemental bill, for the purpose of bringing the assignees again before the Court.

The Defendant's counsel opposed the application, and cited Bierdermann v. Seymour (b), and Tyler v. Bell (c).

The VICE-CHANCELLOR *:

The only thing asked is for leave to file a supplemental bill against the assignees. I am of opinion I ought not to grant it; and for this very plain ́reason: it is admitted that the bill was properly dismissed as against the assignees, for want of prosecution. But that did not prevent the institution of a new suit against them: and I have yet to learn that, when a dismissal for want of prosecution is ordered against one Defendant, the Plaintiff can escape from the effects of the Order, by filing a supplemental bill: and I am of opinion that what is asked cannot be allowed.

I am asked, expressly, to give leave, in the absence of those who have obtained the order to dismiss. I might be thereby doing a great act of injustice, and should be deciding in the absence of parties concerned.

The bill was dismissed against them in November 1836, and this application is made five years afterwards,

(b) 1 Beav. 594.

(c) 1 Keen, 826, and 2 Myl. & Cr. 89.

The judgment is given ex relatione.

when, in all probability, they have abandoned all thoughts of this suit. They might have then had sufficient evidence of the fairness of the transaction, which may now have perished. It appears to me, that, after what has taken place, it would be most unjust if I allowed them to be brought back again to this suit.

The bill must therefore be dismissed with costs.

1842.

LAUTOUR

v.

HOLCOMBE.

WATSON v. WATSON.

1840: 26th June.

Will. Construction.

THOMAS STALKER, by his will dated the 29th of April 1811, made the following amongst other bequests: "I give and bequeath to my brother Daniel's children, Harriet and Maria, 500l. each; Captain annuities to Testator gave James Murray, 100l.; to his daughter, Mary, 501.; to three of his remy nephew, John P. Stalker, 1,000l.; to Edward lations, and directed that, if Owen, of Wood-street, 50l.; to my cousin, Horace the annuities Watson, 300 l.; to my brother, Joshua Stalker, 500 l.; were paid by to each of the children of my sister, Dorothy Martin and John Martin, 100l. each; to Dorothy Mariin an annuity of 30 7. a year, and, after, to her husband, if he

survives her; to Jane Tunstall, daughter of my sister,

the interest of money in the stocks, at the death of the dif ferent parties, the principal

vided between

Jane Tunstall, 150 l.; to my sister, Mary Tunstall, an should be diannuity of 30 l.; to William Bell, 100 l.; to my brother the children of

the deceased.

One of the annuitants had five children living at the testator's death; but only one of them survived the annuitant. Held that the capital of the stock which had been provided to answer the annuity, did not vest in the surviving child, on the annuitant's death; but vested, on the testator's death, in all the children then living, as tenants in common.

1840.

WATSON

v.

WATSON.

Joshua and Esther his wife, an annuity of 60l. a year, to go to the survivor; to Mary Stalker, eldest daughter of my brother Joshua, 200 l.; to the next daughter, 2007., to be paid when of age; to each of the younger children, 100 l. to be kept out at interest and paid when of age : and I appoint my brother, Daniel Stalker, and James Watt to be my executors, to see the preceding carried into execution; wishing them to act in such manner as they may think best in everything: the residue of my property, if any, to be equally divided between my nephews and nieces: if the annuities are paid by the interest of purchasing money in the stocks; at the death of the different parties, the principal to be divided between the children of the deceased."

The testator died shortly after the date of his will. At his death, John Martin and Dorothy his wife, had six children living. Five of them died in the lifetime of John Martin; and the Plaintiff, Daniel Watson, was their personal representative. John Martin survived his wife and died in December 1839.

Daniel Stalker survived his co-executor, James Watt, and afterwards died. The Defendant, Horace Watson, was his executor.

The bill was filed against Horace Watson as the personal representative of the testator, and also against Mary Martin, who was the only surviving child of John and Dorothy Martin: and the question was whether the sum of stock which had been purchased, out of the testator's assets, to answer the payments of the annuity of 30 1. bequeathed to Dorothy Martin and John Martin, vested in Mary Martin on her father's death; or whe

ther it vested in her and her deceased brothers and sisters, on the testator's death.

Mr. Knight Bruce and Mr. Cooke, for the Plaintiff : The gift of the principal of the sum of stock, is an immediate gift: the enjoyment of it only is postponed. The bequests of 1007. each to the children of Dorothy and John Martin, are bequests to children living at the testator's death; and the bequest of the residue is to the testator's nephews and nieces living at the same time.

Mr. Jacob and Mr. Chandless, for Horace Watson, the testator's personal representative.

Mr. Follett, for Mary Martin:

There is no gift of the principal of the sum of stock, until after the death of the surviving annuitant: in such a case the period of distribution and of the gift is the same. At the testator's death, there was no fund that could vest in the children of the annuitants. Where the principal of a fund is given and a life-interest is taken out of it, it vests immediately; but not so, where there is no immediate gift. In Pope v. Whitcombe (a), the Lord Chancellor says: "By the terms of this will, the interest of the residue was given, by the testatrix, to her brother William Pope; and the executors were authorized to place out the fund as they should think proper, during his life; and, from and after the death of William Pope, the residue itself was given, to the executors, in trust for the persons therein named and the survivors and survivor of them, share and share alike, to be paid

(a) 3 Russ. 124.

1840.

WATSON

7'.

WATSON.