in fee, in exchange for other lands. B.'s heir afterwards having contracted for the sale of the land, the purchaser refused to complete the contract, on the ground that A. had no power to exchange the lands in fee. The vendor then procured the execution of certain deeds, with a view of bringing the exchange within the terms of a power of sale and exchange, given to the trustees under the settlement:-Held, under these circumstances, and likewise on the ground that the afterexecuted deeds were grossly inaccurate, that the purchaser was not bound specifically to perform the agreement. Cowgill v. Lord Oxmantown,

369

Semble, that the after- executed deeds, although the surviving trustee of the marriage settlement was a party to them, did not make the transaction between A. and B. a due execution of

the power.

Ibid.

6. The conditions of sale represented, that a deed under which M. C. claimed an interest in the estate was a forgery, and that the vendor had made his affidavit to that effect, and, therefore, that the purchaser should not take any objection to the title by reason of that deed. The purchaser afterwards refused to complete the purchase, brought an action for his deposit, and obtained a verdict, the jury declaring the deed to be genuine. In this state of circumstances, it was held by a court of law that the purchaser was precluded from rescinding the contract, on the ground that the statement of the plaintiff turned out to be untrue, and by a court of equity, that the vendor, in case he could make a good title in other respects, was entitled to a decree for the specific performance of the contract, with costs. Cattell v. Corrall, 413

7. Upon a bill filed by a vendor for the specific performance of the contract, it appeared, that he could make a good title before the commencement

8. By an agreement between vendor and purchaser, it was agreed, that the purchaser should be entitled to the rents on the 1st May, 1813, or from such time as the purchase should be completed. An abstract of title was afterwards furnished to the purchaser, and the title appeared to be satisfactory to the purchaser; and in May, 1806, he sent the vendor a draft conveyance for his approval, which was returned approved in July, 1816. Afterwards, the purchaser, on the suggestion of counsel, made several objectious to the title, and delayed completing the purchase. In November, 1817, the vendor filed his bill for specific performance, and in that suit the Master found, that the vendor could make a good title before the bill was filed, but did not shew a good title to the purchaser till the 20th January, 1825:-Held, upon a decree for the specific performance of the contract, that the proper date of the conveyance was the 20th January,

Court refusing a decree for specific performance, if there was no fraud, Ibid.

WILL.

See CHARITABLE BEQUEST.
DEVISE.

LEGACY AND LEGATEE.

1. Testator bequeathed 80,000 rupees to his daughter absolutely upon her attaining 21; and in the event of her dying under 21, he bequeathed the fund to his brother's children. He then directed that should his daughter live to marry, her interest in the said rupees was to be enjoyed by her during her natural life, and, at her decease, the principal to be divided amongst her children:-Held, that the latter clause was to be confined to the case of a marriage under 21, and consequently that the daughter, who did not marry until after she had attained the age of 21, took the fund absolutely. Vulliamy v. Huskisson,

80

2. Where residuary property was bequeathed to a woman, to be paid to her at 25, with a proviso that it should be put in settlement in the event of her marrying before that time, but no gift over of the property in the event of her dying before that time:-Held, that upon her attaining 21 unmarried, she was entitled to the income of it. Grant v. Grant, 171

3. The next of kin of a party who died leaving a codicil, but no will, allowed to take the residue, upon giving recognisances to refund in case a will should be found. Bakewell v. Tagart, 173

4. Testator bequeathed the residue of his property to trustees, upon trust to pay the interest and dividends thereof unto and between his grandchildren, E. and G., during their respective natural lives, in equal shares; and, after the decease of the said E. and G., upon trust to pay, assign, and transfer such interest and dividends, and the

stocks, funds, and securities upon which the same should be then invested, unto and between all and every the child and children of the said E. and G. in equal shares; and if there should be no child or children of the said E. and G. living at the time of their decease, or born in due time after the death of G., then upon trust to pay, assign, and transfer the same to the testator's personal representatives. E. died in the lifetime of G., leaving several children. G. also had children: -Held, that G. was entitled to the whole of the interest and dividends of the trust fund during his life, and that, upon his decease, the corpus of the fund would be distributable among such of the children of E. and G. as should be living at G.'s death. Pearce v. Edmeades, 246

5. Testator bequeathed two leasehold houses to his sisters H. and M., to be held by them during their natural lives, they keeping them in good repair, and to be disposed of at their deaths as follows; namely, the house, No. 79, to descend to his sister H.'s eldest son or daughter, and the next heir male or female, until the expiration of the lease; and the house, No. 80, to descend to M.'s eldest son or daughter, &c., in the same words as before:-Held, that H. and M. took an absolute estate in the leaseholds.

Quære, whether, if it had been a devise of freeholds, H. and M. would have taken estates in fee or in tail? Ex parte Harrison—In the matter of the Commercial Railway Act, 275

6. Testator devised his real and personal estates to trustees, who were also executors, upon trust, to raise thereout, by sale or otherwise, 4,500l., and invest the same in Government or mortgage securities, and pay so much of the annual proceeds as should be necessary for the maintenance of his grand-daughter, M. A., until her age of 25 years, and then to pay the annual

proceeds to her for her life; and upon her death to divide the principal among her children, and if she died without children, among the testator's other grandchildren, B., C., and D.: and as to residue of the testator's real and personal estate, he directed his trustees to pay the rents, interest, and annual proceeds of it to the said B., C., and D. equally, till the eldest son should attain 25, and, upon that event happening, to convert so much of the residue as should not consist of money into money, and divide the same equally among B. C., and D.; and power was given to the trustees to advance to B. and D. part of their expectant portions before they attained 25:-Held, that it was the duty of the trustees to set apart and invest as soon as possible the sum of 4,500l., and, for that purpose, to sell the testator's real estates, notwithstanding that none of the grandchildren might have attained 25; and in consequence of the non-performance of this duty by the acting trustee and executor, and other acts of misconduct on his part, a receiver was appointed. ards v. Perkins,

Rich

299

7. A., by his will, directed the residue of his estate to be placed out and invested by the trustees of his will on freehold or Government securities, the interest and dividends of which securities he directed to be paid to his several children during their respective lives; and from and after the decease of his said children, upon trust, that his trustees should receive and take the rents, issues, and produce of all the trust estate and effects, and pay and divide the same unto and equally between all his surviving grandchildren who should be then living, share and share alike, until the youngest of them should attain the age of 21 years; and upon the youngest of them attaining such age, to sell and dispose of his real and personal trust estate, and convert the whole into money, and pay and divide

the same unto and equally between all such his said grandchildren, and the children and child of any such grandchild who may be then dead, leaving lawful issue; such children or child to take only his, her, or their parent's share; and if there shall be but one such grandchild who may live to attain the age of 21 years, then upon trust for such grandchild, his or her heirs, executors, administrators, and assigns: -Held, that the bequest to the children of the grandchildren was confined to the children of the grandchildren who should be living at the death of all the testator's children, and that the children of a grandchild who died in the lifetime of some of the testator's children, did not take any interest under his will. Quære, also, if the bequest was not void for remoteness? Smith v. Farr, 328

8. A testatrix bequeathed the residue of her property to certain persons, some of whom lived in the west of England and others in Norfolk, and she appointed two persons to be her executors, one of whom lived at Clifton, and the other at Diss. The executors, having paid all the debts and specific legacies of the testatrix, entered into an arrangement by which the Clifton executor was to pay the residuary legatees in the west of England, and the Diss executor those in Norfolk; and the residuary funds were apportioned between them for that purpose.

The

late daughter H., until the youngest of such children who should live to attain 23 should attain that age; and from and immediately after such youngest child should have attained that age, then he directed the capital, from which such annuity was derived, to be paid and divided unto and equally amongst his last-mentioned grandchildren, share and share alike, as tenants in common. He then directed the two other annuities to be paid to his daughters C. and W. for their lives, and as to the respective capitals from which such annuities were derived, he directed his trustees to pay and divide each of them, from and immediately after the decease of his daughters C. and W., unto and equally amongst all and every his grandchildren. then living, (children of H.), and all the children of C. and W., as well those then living as those which might thereafter be born, share and share alike, &c. And as to the residue of the monies to arise from the sale of his real and personal estate, he directed his trustees to pay and divide the same unto and equally amongst the children of H. then living, and the children of C. and W. then living or to be born during his lifetime, share and share alike, as tenants in common. The will then contained a proviso that the legacies or shares should vest in the grandchildren at 23, and that if any should die under 23 without issue, then the legacies or shares of them so dying should go and accrue to the survivors and survivor of them, to be equally divided between them, share and share alike. At the testator's death there were twelve children of H., C., and W. Of these, four died under 23; then six attained that age; then two died under 23; and of H.'s children, who were five in number, three attained the age of 23, of whom one, namely J. H., died, after surviving M. H., who died under 23, and predeceasing D. H., who died under that age :-Held,

First. That J. H. took an original one-fifth share of the annuity-fund provided for the children of H., and onethird of M.'s share, but no part of D.'s share.

Secondly. That the limitations over of the annuity-fund from which C. and W. took their life annuities, were void for remoteness.

Thirdly. That J. H. took an original share in the residue, and an aliquot part of the shares of the four who died before him, but no part of the shares of those who died after him.

Fourthly. That for the purpose of the above construction, the words "survivors and survivor" were to be taken in their usual sense, and to be considered as referring to survivors in each class of grandchildren. Cromek v. Lumb,

565

10. Testator devised all his real and personal estate to his wife for life, and, after her decease, to such of his children as should be then living, their heirs, executors, administrators, and assigns, share and share alike, as tenants in common, with benefit of survivorship in case any died without issue under 21; but if any of them his said children should happen to die leaving lawful issue, the testator willed that such issue should take their father's or mother's share. The testator left several children, of whom one only, a son, survived the wife; but one of the others, a daughter, left issue:-Held, that the son was entitled to the whole property, to the exclusion of the issue of the daughter; such children only of the testator being entitled to the benefits of the will as were living at the death of the wife. Ex parte Hunter—In the matter of the Birmingham and Derby Railway Act,

610

11. Testator bequeathed the residue of his personal estate to his executors in trust for the benefit of his wife and children living at his decease, in manner following; (that is to say), to pay

the dividends to his wife for her life, and after her decease to apply them for the benefit of his children then living; but his meaning was that such of them as should then have attained 21 should have their shares, and that the others should have their shares on attaining that age. And he directed, that, in case of the death of all his children under the age of 21, without issue, such residue should go to his wife; but that if there should be issue of any of his children living, after the death of the whole of such children, it should be divided amongst such issue : -Held, that the children living at the death of the wife were entitled to the residue, to the exclusion of the issue of a child who died in the wife's lifetime. La Roche v. Davies, in notis.

612,

WITNESS.

See EXAMINATION OF WITNEsses, 1. PRACTICE, 13.

1. An executor in trust, who has not proved the will, is a competent witness in equity as well as at law to increase the testator's estate. Hall v. Laver, 197 2. In order to re-examine before the Master a witness who has been examined in the cause, a party must obtain an order upon motion made with notice, and the notice of motion must state the names of the witnesses proposed to be examined. Jones v. Thomas, 227

3. Under special circumstances a witness was ordered to be examined before the Master as to collateral facts connected with the same points upon which he had been examined before the decree. Barker v. Greenwood, 393