stated in the bill; but there was no distinct charge of the inference or of the conclusion to be drawn from these facts; the bill, however, prayed it might be declared, that the defendant was not entitled to the production of the lessor's title. That was the form of the record in Ogilvie v. Foljambe. In Hayden v. Bell, there was a distinct charge that the defendant had waived his right to call for the lessor's title; but the prayer of the bill in that case was in the usual form; and in Hayden v. Bell, a declaration was made, that the defendant was not entitled to call for the lessor's title. I should submit, that if we were here on the hearing of the cause, we might, under the prayer for general relief, have that qualified reference which we seek ; for, under the prayer for general relief, any relief may be granted that is not inconsistent with the facts of the case. There is a case, Jerard v. Saunders (a), which contains some observations of Lord Rosslyn applicable to this question. The bill sought a discovery of deeds relating to the plaintiff's title, and an injunction to restrain proceedings in ejectment. It charged constructive notice of a settlement under which the plaintiff claimed, from a transaction in which certain deeds, the discovery of which was sought, were delivered. The defendant pleaded purchase for valuable consideration, without notice. The Lord Chancellor said: "He must set forth the facts charged in the bill, from which the Court will construe notice, particularly, whether the title-deeds were delivered. He assumes to himself the proposition. He judges what is constructive notice, and then denies that, to his knowledge and belief, he had constructive notice. The bill does not impute direct notice to him. It is consistent with everything he says, in answer, that the very settlement itself might have been delivered. He must let the Court judge of that." Now, the inference I draw from that case is, that it is the (a) 2 Ves. jun. 187; 4 Bro. C. C. 322. 1848. CLIVE v. BEAUMONT, 1848. CLIVE v. BEAUMONT. province of the Court, not the office of the pleader, to draw the conclusion from the facts stated. The VICE-CHANCELLOR.—I am sorry, on account of the nature of the case, to say, that my opinion is against the plaintiff on this point. A decree was then taken, by consent, dismissing the bill, each party paying his own costs up to the decree, inclusive; and the plaintiff paying the defendant's costs, in the Master's office, and of the rehearing, the last not to exceed the deposit. 1847. May 25th & A reference as to which of two suits is most for the benefit of infant plaintiffs, does not of itself stay in the suits. WESTBY U. WESTBY. IN this case, two suits had been instituted, in the names of the same infant plaintiffs, by different next friends. By an order made on April 17th, 1847, in both suits, it was referred to the Master to appoint a receiver, and to the proceedings inquire which of the suits it was most proper and advantageous for the infant plaintiffs should be prosecuted, and whether such one of the suits, as he should think ought to be prosecuted, should be prosecuted by the then present next friend in the said suit, or by any and what other person. May 25th. A motion was, this day, made, that the inquiries directed by the above order might be made to the Master in rotation, and not to the Master to whom certain other suits were referred; and also, that the plaintiffs in one of the two firstmentioned suits might be at liberty to proceed in the cause notwithstanding the order of April 17th. Mr. Russell, Mr. Cooper, Mr. Lee, Mr. Haldane, Mr. Torriano, and Mr. Schomberg, appeared for the different parties. The Vice-Chancellor directed inquiry to be made at the Registrar's office as to the practice. The Registrars agreed that the reference as to which of two suits was most for the benefit of infants did not necessarily stay proceedings; and that though it generally had in practice that effect, it was competent to the Court to entertain any application pending the reference. Mr. Colville, jun., the Registrar, who communicated to the Court the result of the inquiry, referred to Sullivan v. Sullivan (a), and stated, that the order in that case did not contain any direction to stay proceedings, nor did the common form; but that the practice was, after report made, to apply for an order to stay proceedings in the defeated suit. No order was made. (a) 2 Mer. 40. 1847. WESTBY v. WESTBY. BISHOP v. CAPPEL. June 29th. quest to a bro and after his WILLIAM BISHOP, by a codicil to his will, and in- Residuary be dorsed thereon, dated October 27th, 1822, bequeathed as ther of the tes follows:-"It is my will and desire that the moiety or half tator for life, part of the rest and residue of my personal estate, left as death to his within to my brother George Bishop, one of my executors, shall not be left to him and his heirs for ever, but for the term of his natural life; and, after his decease, to go to Mrs. wife, and at her death to go to tator's relations as sur such of the tes vived them : Held, to give the whole to Sarah Bishop, his wife; and, at her decease, to go to such of my relations as shall survive them, share and share alike." the The testator died on the 28th of April, 1830, leaving thers of the three brothers and two sisters him surviving, of whom the testator who of the bro survived the tenants for life, to the exclusion of the children and representatives of brothers of the testator who survived him, but died in the lifetime of the second tenant for life. 1847. BISHOP v. CAPPEL. plaintiff, Vezey Bishop, alone survived Sarah Bishop, who survived her husband, and died on the 14th of November, 1843. The question was, whether the whole moiety belonged to the plaintiff, or whether the children of the deceased brothers and sister should participate. Mr. Russell and Mr. John Baily, for the plaintiff.-The meaning of the expression "relations" is now settled to be the persons who, at the death of the testator, would be entitled to his personal estate under the Statute of Distributions; and the bequest is to such of this class as should survive the tenants for life; hence the plaintiff, being then the only survivor of the class, is entitled to the whole. This is, in fact, the decision in Spink v. Lewis (a), where the testator directed the proceeds of real estate to be laid out at interest for ten years, and, at the end of that time, directed five-sixths thereof to be divided among such of his next of kin and legal representatives as should be then living under the usual and due course of representation. The only distinction between that case and the present was, that the period of postponement was ten years, whereas here it was for the continuance of two lives, and that here the description is, "my relations," instead of "next of kin;" but neither of these circumstances alters the case, the word "relations" having been held to mean a definite class; and it seems as likely that the expression "such of my relations as shall survive" is intended to denote a selection from a class as to denote the entire class. There is another case, of Green v. Howard (b), in the same reports, where the bequest was to the widow for life, with remainder to the testator's own relations who should be then alive. [The Vice-Chancellor.-If one of the testator's brothers had died, leaving children, between the date of the codicil and the testator's death, would the children have partici (a) 3 Bro. C. C. 355. (b) 1 Bro. C. C. 31. pated?] It is not necessary for us to deny that they would. There is no distinction between a gift to relations and a gift to next of kin as to the period of the ascertainment of the individuals comprising the class; nor is the decision in Spink v. Lewis founded on anything peculiar to the class defined by the term "next of kin." The ground of the decision was, that the testator must have meant some class of persons of whom it was not certain that all would be alive when the gift was to take effect. Here, also, the testator intended a class, of whom it was doubtful whether all would survive the tenants for life. [The Vice-Chancellor. -Then, if the plaintiff had died before the surviving tenant for life, would there have been an intestacy?] That is the result of the words, and the same observation applies equally to Spink v. Lewis (a), but the Court did not then, on that account, depart from the most obvious import of the words of the bequest. They also referred to Rayner v. Mowbray (b) and Doe v. Owen (c). Mr. Swanston and Mr. Hubback, for children of a deceased brother. According to the plaintiff's construction, there would be an intestacy. The words employed by the testator, in Spink v. Lewis, were technical expressions, having a definite meaning. But there are many cases in which the Court has come to the conclusion that the testator did not mean his next of kin at the time of his death, although that was primâ facie the natural import of the words: Jones v. Colbeck (d), Clapton v. Bulmer (e), Butler v. Bushnell (f), Briden v. Hewlett (g), Minter v. Wraith (h). Sir F. Simpkinson and Mr. Chichester, for other parties, (a) 3 Bro. C. C. 355. (b) Ibid. 235. (c) 1 Taunt. 263. (d) 8 Ves. 38. VOL. I. EE (e) 10 Sim. 426; 5 My. & Cr. 108. (g) 2 My. & K. 90. D. G. S. 1847. BISHOP v. CAPPEL. |