Turner v. Turner. that she should not have understood the nature of the consent then given. That was in the year 1845. No step whatever has been taken inconsistent with that, till in the year 1850, a year ago, an action was brought for the purpose of contesting the will by means of an ejectment, and thereupon this court being applied to, granted an injunction to restrain the action, and for the purpose of preventing any further litigation taking place respecting the will. Now, considering the lapse of time that has occurred, and the loss of evidence that may possibly arise in so great a length of time, particularly on a subject of so much difficulty as the sanity of a testator, it would be under very peculiar circumstances that I should think myself justified in allowing an heiress at law, who had not acted upon a permission to contest given so long ago—-twenty years ago when it was first given that I should allow her to obtain the assistance of the court for doing that which ought to have been done so long before, especially when I find an order expressly made directing the will to be established, and declaring that the costs of all parties, by a species of arrangement, should be paid at that time upon the footing and upon the apparent understanding that there was to be no further litigation on the subject. That has been acted upon ever since. This lady must have been aware of the effect of that order, and of the consequences of it, and any steps that were proper to be taken ought to have been taken. Taking all these things into consideration, I am satisfied I could not do a worse act than allow the matter to be reheard on the present occasion. It is said that the matter for rehearing is for error patent on the face of the decree. I do not think that makes any substantial variation with respect to the particular matter alleged, nor am I satisfied that it is so, for the error, if any, is, that counsel appeared and consented that the orders should be discharged, when, in fact, no such counsel did appear; at least, that is the most favorable way for the petitioner to state this matter. I am not satisfied, nor is there any thing to show me, what actually took place on the occasion. It is possible that upon that occasion the court might have said, that it was necessary that counsel should appear and consent that the orders should be discharged, and that thereupon one of the counsel might have been instructed, and might have given such consent. I think in that case it would have been sufficient. I am of opinion that I ought not to permit the petition to he reheard. I think that the motion must be granted to the extent of ordering the order made by Lord Langdale to be discharged, and taking the petition off the file. Wild v. Gladstone. - Johnson v. Johnson. WILD V. GLADSTONE.1 March 14, 1850. Practice-Plea of Disability. A plea was put in to a bill, by which plea the illegitimacy of the plaintiff was averred. The same having been put in without oath, was overruled. Semble, that it is necessary to move to take such a plea off the file. THE bill in this case was filed by the plaintiff, claiming to be a child of a person in favor of whose children a bequest was made by the will of the testator in the cause. The defendant put in a plea, without oath, alleging that the plaintiff was not legitimate. Russell and Glasse appeared in support of the plea. J. A. Cooke, for the plaintiff. This plea is bad, as not being put in upon oath. Gibson v. Whitacre, 2 Vern. 83. Skey v. Garlike, 1 De G. & S. 396. KNIGHT BRUCE, V. C. At present, the only doubt I am able to have on this point is, whether it is not necessary that there should be a motion to take the plea off the file. I shall give leave to serve a notice of motion for that purpose, unless the plaintiff will treat the case as if such a motion were now on. Glasse consented to that course, and urged that the objection was not valid; Lord Redesdale (Plead. 301) laying it down, that "a plea is filed like a demurrer in the proper office; and pleas in bar of matters in pais must be upon oath of the defendant; but pleas to the juris. diction of the court, or in disability of the person of the plaintiff,” need not to be upon oath. KNIGHT BRUCE, V. C. I overrule this plea with costs. JOHNSON V. JOHNSON.2 November 18, 1850. Bonus on Insurance Shares - Tenant for Life. A testator, possessed of shares in an insurance company, by his will, dated in 1846, gave his property to trustees for the benefit of his wife for life, and after her death, for his children. Two years after his death, namely, in 1848, a bonus was declared: Held, that the widow, as tenant for life, was entitled to the bonus as income. Johnson v. Johnson. In this case a decree had been made in a suit for the administration of a testator's estate. He had by his will bequeathed the whole of his property to trustees, upon trust to pay the income to his widow for her life, and afterwards to divide the capital among his children. He died in 1846. From the master's report it appeared that the testator was entitled to shares in an insurance office, and in gaslight and other companies. The master also reported, that it would be for the benefit of the children, who were infants, that the widow should enjoy the income, without any sale being made of the property, and the investment of the produce. In the year 1848 the Imperial Fire Insurance Company passed a resolution, that "a bonus or increased dividend of 10l. per share be added to the usual dividend of 31. per share, making together 13l. per share." In this company the testator had fourteen shares. Other bonuses were declared, but whether they accrued before or after the death of the testator did not appear. A question having arisen as to the right of the widow to this bonus of 107. above the 31. per share, she presented a petition praying a declaration of her title, and an order on the trustees to pay the same. Malins and Karslake supported the petition. Chandless, for the infants, contended that the bonus was capital, and cited the cases of Witts v. Steere, 13 Ves. 363, and Barclay v. Wainewright, 14 Ves. 66, in support of that view. Dickinson, for the trustees. KNIGHT BRUCE, V. C. I consider this bonus to be income, and that the petitioner is entitled to it accordingly. As to the other bonuses, I am not clear whether, although they are themselves income, they are such income as the widow is entitled to; for they may have accrued before the death of the testator, and therefore may form part of his estate, to the income only of which estate she is entitled. An order was made referring it to the master to ascertain whether any and what changes should be made for the future in the scheme for the application of the income of the testator's estate; but an arrangement was subsequently come to as to the application of all the bonuses among the parties. In a claim for administration of an estate, the probate or letters of administration must be produced. LOVELL applied for leave to file a claim for the administration of real as well as personal estate. KNIGHT BRUCE, V. C. Has the will been proved; for I have received a communication from one of the masters, that under an administration claim an order has been made without the will having been proved in the ecclesiastical court at all. On asking for the probate, the master had ascertained that there was none. In none of these cases, therefore, should the registrar draw up the order without the production of the probate or letters of administration. I wish that to be carefully attended to. LESLIE V. TOMPSON.2 Special Case-Compensation to Vendor in Respect of Excess in Quantity of Land sold over Quantity stated in Conditions of Sale. By the particulars of a sale by auction, at which the defendant was declared the purchaser of lots 1, 2, 3, and 4, lot 1 was described as comprising 70 acres, 24 perches more or less, and lots 2, 3, and 4 as comprising together 321 acres, 2 roods, 30 perches more or less; and by the conditions of sale it was provided, amongst other things, that any mistake or error in the description of the property should not annul the sale, but should be the subject of compensation, to be given or taken, as the case might require. A map or plan of the property was annexed to the particulars, in which the different lots were distinguished by different colors. After the sale it was found that lot I comprised 89 acres, 29 perches, and lots 2, 3, and 4 only 310 acres, 3 roods, 18 perches: Held, upon special case, stating that the error in the particulars had arisen from the adoption therein of the description furnished by a surveyor's report made on a former occasion, which was erroneous, and submitting the question of the vendor's title to compensation to the court, that the purchaser was bound to make compensation to the vendors in respect of the extra quantity of land comprised in lot 1, and entitled to receive compensation from the vendors in respect of the deficiency in lots 2, 3, and 4. The addition of a statement of the acreage, more or less, to the previous description of property offered for sale, held to negative any presumption, arising out of such prior description, of an intention to sell the property in the lump. THIS was a special case, filed to take the opinion of the court upon the question, whether a purchaser by auction, whose purchase had 1 15 Jur. 714. 2 15 Jur. 717. Leslie v. Tompson. been found to comprise a larger quantity of land than the quantity specified by the particulars of sale, was bound to pay a compensation to the vendors in respect of the extra quantity of land. The facts disclosed by the special case were the following: On the 29th of August, 1850, certain lands and hereditaments, situate at Iver, in Buckinghamshire, were put up for sale, in several lots by auction, pursuant and subject to certain particulars and conditions of sale, with a plan or map annexed to, or forming part of, such particulars. A printed copy of such particulars and conditions of sale, with a map or plan denoting the various lots by different colors, had been sent by post to the defendant and others by the auctioneer a few days before the sale. The defendant attended the auction, and was declared the purchaser of lot 1 at the price of 28001. He also became the purchaser of lots 2, 3, and 4. Lot 1 was stated by the particulars to consist of a country residence, park, and grounds, called "Dromenagh Lodge," and the nature and quantity of the land comprised in the said lot was set forth in the particulars in the words following, viz.: "The well-timbered park is enclosed by thriving plantations and strong oak palings. There is a neat lodge entrance, containing neat sitting-room, three bed-rooms, with good garden, and strong entrance gate. The long coppice is a gradually sloping wood, to a pure running stream abundantly supplied with fish, and is studded with numerous rustic lodges and seats. This lot comprises about seventy acres and twenty-four perches, divided in the following manner : No. on Plan. Description. 1. Residence, offices, garden, lawn, and fish pond, 2. Stabling, yards, and kitchen garden, 3. Lodge and park, 4. Long coppice, Total acres, more or less, 70 0 24" Lots 2, 3, and 4 were described in the particulars as comprising certain messuages, out-buildings, &c., together with certain quantities of arable, pasture, meadow, and wood lands, amounting in the aggregate to three hundred and twenty-one acres, two roods, thirty perches, more or less. By the eleventh of the conditions of sale it was provided, that if any mistake or error should appear in the description of the property, or any error whatever appear in the annexed particulars, such mistake or error should not annul the sale; but, except where otherwise provided for by the conditions, a compensation or equivalent should be given or taken, as the case might require, to be settled by two referees, or an umpire to be nominated by them before entering on the business, one referee to be nominated by each party within seven days after the discovery of the error, and notice thereof given to the other party; and in case either party should refuse or neglect to name a referee within the time appointed, the referee of the other |