which the Ecclesiastical Court had to determine was, whether the document was or not testamentary; whether it was or not in fact a will, and having determined it to be so, every other question was exclusively within the province of the Court of Construction. For the husband's executor it was contended, that there was no probate of any will of the testatrix being or purporting to be an execution of this power, although there was a probate of a will relating to other property; that on the application of the defendant, the Court had in effect and to every legal purpose annulled that part of the instrument.

The Vice-Chancellor: "I believe the practice of the Court formerly was not to require the probate of the will by which a married woman disposed of property under a power. This Court, however, at length thought right to require it, and it does so now. I must, therefore, require probate, until I am told the contrary by a judge of higher authority. If the court of probate has improperly refused to admit the will to proof, which I cannot assume, the matter may be set right by an appeal to the Privy Council, and if, as has been urged, that Court should act on principles different from those which this Court is in the habit of applying, and should, acting upon those principles, take upon itself to say that a document which in the opinion of this Court is good as an exercise of the power cannot be admitted to proof as a will, owing to some defect of form, it may be competent to this Court to resume its old jurisdiction and act independently of the Court of Probate. Upon these points I express no opinion further than to say, that I think the question cannot arise until the decision of the Court of Probate, which is called in question, has been reviewed and determined by the highest Court of appeal to which the decisions of that Court can be carried."

His Honor afterwards pronounces, that there being nothing but a probate granted for the purpose of administering other sums, expressly excluding the fund in question, "that is not the sort of probate which this Court requires." He, however, allowed the case to stand over, with liberty to the parties to take proceedings by way of appeal or otherwise, for the purpose of obtaining probate as to the property in question.

In the case of Brandon v. Aston the Vice-Chancellor Knight Bruce decided that a provision for forfeiture " on any attempt to

2 Y. & C. C. C. 24.

mortgage, incumber, or anticipate" was given effect to by a petition to the Insolvent Court followed by the usual vesting order and the signature of the usual schedule.

In the present case there was a gift of 5000l. stock for the maintenance of children while under age, "and when the youngest child becomes of the age of twenty-one years, then this said 50007. stock shall be sold, and the money shall be then equally divided between such of the said children equally, share and share alike. No one of the said children shall be allowed or shall ever sell or part with his or her share or interest in the said money until it shall be divided. If on proof of any one or more of them having done so, their, his, or her share shall from that time become the property of the other children.”

There were six children, and four of them were living when the youngest attained twenty-one. One of them before the vesting of the fund on that event, being arrested and imprisoned for debt, had petitioned the Insolvent Court; the usual vesting order had been made, and the insolvent had signed the usual schedule. Under these circumstances the trustees of the fund filed a bill for the directions of the Court, and submitted that the decision must follow that of Brandon v. Aston, and that consequently the share of the insolvent in the fund went over to the other children who were living when the youngest attained twenty-one. For the provisional assignee it was attempted to be contended, first, that the expressions of the clause against anticipation in Brandon v. Aston were more extensive than any thing in the present will; and that presenting a petition to the Insolvent Debtors' Court was clearly not a sale, nor was it a parting with the interest. On this point, however, the Vice-Chancellor expressed himself clear that it was such a parting with the interest as was contemplated by the will. It was then argued that the restraint on alienation was void; that in the cases where a clause of that kind had been supported, the parties had taken an interest for life only, and that it was repugnant and void for inconsistency in all cases of absolute gift, whether vested or contingent. The Vice-Chancellor nevertheless held the clause to be good in the present case, appearing, however, (though the point does not appear in the final conclusion so distinctly as could be wished,) to take a distinction between the case of a contingent reversionary interest, which this had been decided to be, and that of an absolute interest in possession.1

It is mentioned in the report that in the course of the argument an eminent conveyancer, in answer to a question put to him by the Court, stated his opinion to be that a gift to A. in fee, with a proviso that if A. aliene in B.'s lifetime,

This case turned on the point of law on which the leading authorities are the well-known cases of Peacock v. Spooner, with Dafforne v. Goodman 2 and Webb v. Webb3, and which, as is also well known, those cases have left in a rather unsatisfactory state. Though generally and familiarly known, a few words of reference to them are necessary by way of introduction to the present case.

The general question is, whether a rule similar to that respecting limitations of freehold estate, that "where an estate for life is given to the ancestor followed by a limitation to his heirs, general or special, the subsequent limitation vests in the ancestor, and the heir takes not by purchase," holds in the limitation of personal estate also.

In Peacock v. Spooner, a long term being settled in trust for the husband and wife and the survivor of them, for so many years as they and the survivor should live, and after their deaths to the use of the heirs of the body of the wife by the husband, and Lord Chancellor Jeffries having decreed the whole to be vested in the wife who survived, the Lords Commissioners decreed that the heirs of the body took by purchase, and that it did not vest absolutely in the mother who survived, so as to go to her administrator, which last decree was afterwards affirmed in the House of Lords, though the judges were six to two against it. The case of Dafforne v. Goodman was similar, and the decree in it was grounded on the authority of the preceding.

Then followed the case of Webb v. Webb, in which a term of 100 years was assigned in trust for the husband for life, then for the

the estate shall shift to B., is valid. There does not certainly, at first sight, appear any very decisive argument against its validity. Probably, by research, cases might be found in which the question has been discussed, or which involve the decision of it one way or the other. There is an old case (Spittle and Davie's Case, 2 Leon. 28., Moor. 271.) where lands were devised, part to the testator's eldest son in tail, part to his youngest son in fee, "provided that neither of the said sons should sell or lease the lands so given to them, or do any act, &c., before they came to the age of thirty years;" and if either of them did, then the other should have the portion so devised to his brother. The eldest son leased the lands devised to him before he attained that age; and it was held that the entry of the younger upon him was lawful. This seems to involve, and if considered a sufficient authority, to decide the principle contained in the above question of

the Vice-Chancellor.

1 2 Vern. 43. 195., 2 Freem. 114.

* 2 Vern. 362., 2 Freem. 231.

31 P. Wms. 132.

wife for life, and after their deaths for the heirs of the bodies of the husband and wife. The wife died leaving issue, the husband survived, and it was determined by Lord Keeper Harcourt that the whole term vested in the latter.

The observation on these cases of the most learned of the writers treating of such matters is1, that "the last case appears to have been the ruling authority ever since in cases of the like nature, and that of Peacock v. Spooner, it seems, is only attended to in cases exactly the same with itself, as was that of Dafforne v. Goodman."

It is stated, however, to have been laid down in an opinion on the present case given in the year 1827 "by an eminent counsel now holding a high judicial office," that in Webb v. Webb "the Court escaped from the rule in Peacock v. Spooner, as the circumstances were not precisely similar; but the reasoning of the Lord Keeper in the latter case was erroneous, and the decision of the House of Lords must be binding until reversed there."

In the present case of Bartlett v. Green the limitations in the settlement of a term of 2000 years were in trust for the husband for so many years as should expire in his lifetime, then for the wife for life, and after the several deceases of the husband and wife, for the heirs of the body of the husband and wife for so many years of the term as should expire in the life or lives of him, her, or them respectively, and after the several deceases of the husband and wife, and in default of issue of their bodies as before limited, for the husband's brother, his heirs, executors, and administrators for all the residue of the term.

The property had come into the possession of the personal representative of the wife, who survived, and the suit was instituted by the heir of the eldest son, claiming under the limitation to the heirs of the body, and it was argued for the plaintiff, that the cases of Peacock v. Spooner and Dafforne v. Goodman so closely resembled the present, that the Court could not hold the words heirs of the body in this case, words of limitation, without overruling a decision of the House of Lords; that in Webb v. Webb Lord Keeper Harcourt could not overrule, nor indeed did he profess to overrule the decision of the House of Lords. But the ViceChancellor, without requiring an argument from the other side, decided that he could not distinguish the present case from Webb v. Webb, and expressed his opinion that in that case Lord Harcourt "in effect overruled the authority of Peacock v. Spooner and Dafforne v. Goodman,". a result from which that intimated by

Fearne, Ex. Dev. p. 493.

Fearne, though expressed in more guarded language, does not perhaps practically differ.

It is stated that the decree in the present case has been appealed from.

Papers admitted to Probate in the Ecclesiastical Court treated as Nullities in the Court of Chancery.

"In Gawler v. Standerwick Sir Lloyd Kenyon M. R. said that the codicil in that case having been proved in the Spiritual Court, he was bound to receive it as a testamentary paper, but having done so, this Court was to construe it. The construction which his Honor put upon the codicil was that it operated nothing.”

The present case, though not with quite equal simplicity, was brought to a similar result.

The testator, some time before his death, delivered to his butler two sealed packets addressed to his bankers, with directions to retain them until after his death, and then to present them at the banking house. On being opened after the testator's death, they were found to contain two cheques, dated September, 1833, one in favour of the butler, the other of another servant. In November, 1834, he made a testamentary instrument, by which he gave life annuity to each of these servants. He then bequeathed the residue of his estate, and revoked any former will or codicil.

The Ecclesiastical Court admitted this instrument and the two cheques to probate, as constituting together the testator's will.

On a petition in the cause presented by the residuary legatees, the question was, whether the servants were entitled to be paid the amount of the cheques in addition to the annuities, or whether they were entitled to the annuities only. It was argued on their behalf, that the revocation clause in the testamentary instrument of November, 1834, could not be held to apply to the cheques, because that clause, being a revocation of former wills and codicils, could not affect papers which had been decided by the only competent tribunal to be subsisting parts of the will; that the Ecclesiastical Court never admitted to probate instruments that were wholly revoked, and for that reason alone the Court of Chancery was precluded from considering the cheques as revoked.

The Vice-Chancellor, however, and on appeal the Lord Chancellor, both held that, though the Ecclesiastical Court for the pur

1 2 Cox. 15.