1841.-Blundell v. Gladstone. mire;(a) Doe v. Bower;(b) Delware v. Robello;(c) Doe v. Westlake; (d) Doe v. Southern ;(e) Doe v. Needs. Mr. Skirrow, Mr. Girdlestone, Mr. Parry, and Mr. Bagshawe, appeared for the other parties. Mr. Jacob, in reply, said that, taking the whole of the will together, there could be no doubt that the testator intended the second son of Joseph Weld to be the first cestui que trust under his will; and, therefore, there was no necessity for resorting to any evidence, except for the purpose of placing the Court in the same situation, with reward to knowledge of the objects of testator's bounty, as the testator himself stood in at the time when he made his will;(g) and that the Court, in every case where it was called upon to construe a will, *was enti- [*485] tled to have evidence produced for that purpose: that, from the language in which the trust in the will was expressed, and from the directions as to taking the testator's name and arms, as to residence in his mansion-house, and as to the furni ture, &c., it was clear that the testator meant the object of that trust to be an existing person; and that he did not contemplate that there would be any vacancy in the enjoyment of his estates at his death: that, according to the argument for the defendants, the testator had made three mistakes; but, according to the argument for the plaintiff, he had made only one, and that a very common one, namely, a mistake as to a Christian name. THE VICE-CHANCELLOR :-This is a very simple case. I have listened to all that has been said, both by way of observation on the will and on the cases that have been cited, and my opinion is that this case is quite within the rule which is laid down in Miller v. Travers; and, that it may be decided with the greatest facility and satisfaction, without adverting to what was laid down in Doe v. Hiscocks. (a) 4 Russ. 384. (b) 3 Barn. & Adol. 453. (c) 1 Ves. jun. 412. (d) 4 Barn. & Ald. 57. (e) 1 M. & S. 299. (2) See Wigram on Ext. Evid. 51, et seq. 1841.-Blundell v. Gladstone. The sole question is, who was the person described as, "Edward Weld, of Lulworth, in the county of Dorset, esquire." That is the sole question, and, for the purpose of determining it, I shall only advert to the evidence which has been given, and very properly given, of the state of the Weld family, entirely reject ing from my consideration everything else dehors the will, that can be at all said to bear upon what the testator's intention was. I look only at the facts of the case, namely, at those [*486] facts which show the state of the Weld *family at the date of the will, and what the testator has said in his will. I find then these facts, about which there is no dispute, namely, that Mr. Joseph Weld, the present owner of Lulworth Castle, had, at the time the will was made, an elder brother living, who was named Thomas; and that he had had a brother of the name of Edward, who, in 1796, was being educated for holy orders in the Romish church, and died at the age of 20 or 21. Mr. Joseph Weld has two sons, Edward Joseph Weld, for whom counsel appear in this cause, and Thomas Weld, who is the plaintiff in the suit: and he has also a sister, Lady Stourton. Then, those things being so, I look at the will, not merely at one line but at every part of it, for the purpose of determining the meaning of that part of it, the construction of which is disputed. I take that to be the legitimate mode of construction; whether it be a question who shall be the person to take, or what is the thing to be taken, or what is the interest to be taken in it. And, in so doing, I merely follow the rule which is laid down in Miller v. Travers. I find then, in this will, that, after the devise of the legal estate in fee to trustees, the testator declares the trusts to be, to permit and suffer the second son of Edward Weld, of Lulworth, in the county of Dorset, esquire, to occupy and enjoy the same for his life: then there is a trust for the first and every other son of the said second son of the said Edward Weld successively in tail male, on which nothing arises. Then, in default of such issue, there is a trust for the third and every other son and sons (except the eldest) of the said Edward Weld, on which also nothing 1841.-Blundell v. Gladstone. arises. Then, in default of issue, there is a trust for the first and every *other son of each brother (except the [*487] eldest brother) of the said Edward Weld; and, for default of such issue, upon trust for the second and every other son and sons (except the eldest) of Lady Stourton, the wife of the Right honorable Wm. Lord Stourton and one of the sisters of the said Edward Weld, successively, in tail male. There is nothing material in the rest of the will, except that it is manifest, on the face of it, that the testator intended the first trust to take effect in possession immediately after his death. I am, therefore, to consider this will in the same manner as if the testator, when he spoke of Edward Weld of Lulworth in the county of Dorset, esquire, had described him as having an elder brother, and as being, himself, the brother of Lady Stourton. I will take it then that, in this will, there is a devise in trust for the second son of Edward Weld of Lulworth in the county of Dorset, esquire, who has an elder brother, and who is, himself, the brother of Lady Stourton. It is said that that devise cannot by any means mean the the second son of Joseph Weld of Lulworth in the county of Dorset, esquire; because it appears as a fact that he has a son named Edward Joseph, and that, for ordinary purposes, he is called Edward; but it is also proved that, on solemn occasions, the gentleman in question, writes his name, Edward Joseph. It is to be observed too, that, though it may be very true that the description of Edward, might be a sufficient description of Mr. Edward Joseph Weld for some purposes, yet that the name Edward given solely to him, is not the perfect and accurrate description of him by name. Then this is to be further observed, that not only he is not *designated fully and [*488] accurately by name, but he does not at all answer the description of having an elder brother, or as being, himself, a brother of Lady Stourton. In answer to that, it was said that Mr. Edward Joseph Weld, though erroneously designated with respect to his Christian name, was correctly described as of Lulworth in the county of Dorset, esquire. I admit that it might be very well to describe Mr. Edward Joseph Weld, as Edward VOL. XI. 26 1841.-Blundell v. Gladsone. Weld of Lulworth, in the county of Dorset, esquire, for some purposes: but here the testator is making a disposition of his estates, and is evidently speaking of some person who was to be the stirps from whom the takers were to arise. Besides, I find that the person whose second son was to succeed the testator in the enjoyment of his estates, was a person who had an elder brother and was, himself, a brother of Lady Stourton. Therefore, I have, on one side, a sufficient designation for some purposes, (but not a full and accurate one,) of one person with two circumstances attached to it and describing him, but which by no means suit him; and, on the other side, I have a designation of a person which is inaccurate: but the two other circumstances of description so suit and point to that person as not to leave, in my mind, the shadow of a doubt that he was the person whom the testator intended to describe. I decide this case upon the words of the will, coupled with that evidence only which has been given as to the state of the Weld family at the date of the will, and which, I think, is the only part of the evidence which ought to be received. I have thought of the question a good deal from the time when the hearing of the cause commenced; and it seems to me [*489] that no advantage *would arise from sending a case for the opinion of the Judges of a Court of Law, but that the question can be satisfactorily decided in this Court. If I had had the least doubt on the question, I certainly should have acted as a Judge of this Court, who entertains a doubt, ought to do; and have sent a case to a Court of Law: but the case seems to me to be a very simple one, and wholly free from doubt and I think it due to the feelings of the parties and to justice, that I should declare my opinion at once.(a) The will of 1827, mentioned ante page 480, was not proved, nor had any order for proving it been obtained, when the cause (a) The Lord Chancellor, assisted by Mr. Justice Patteson and Mr. Justice Maule, affirmed the above decision in H. T. 1843.[1] [1] This case, on appeal, is reported, (1 Phil. 279.) The report there contains, in full, the opinion of Mr. Justice Patteson and the Lord Chancellor. 1841.-Houghton v. Houghton. was heard originally; but Lord Camoys's counsel proposed to prove it, viva voce, as an exhibit, at the hearing reported above. THE VICE-CHANCELLOR, however, would not allow the document to be proved; because the cause was substantially before him for further directions, and, therefore, the Court could not allow any exhibit or other matter to be given in evidence, which was not proved, or for the proving of which an order had not been obtained when the cause was heard. *HOUGHTON v. HOUGHTON. 1841 16th and 25th January, and 15th April. [*491] Two brothers, A. aud B., entered into co-partnership without articles, and purchased land for the purposes of their trade, with money borrowed from C., and had the land conveyed to themselves in moieties, to uses to bar dower. Shortly afterwards they mortgaged the land to C. in fee, to secure the money borrowed. A, died intestate, leaving B. his heir: B. then took D. into partnership. Each of the firms erected trade buildings on the land, and paid for them and for the insurance on them, and also paid the interest on the mortgage-money out of their partnership funds. Ultimately, B. and D. paid off the mortgage out of their partnership property, and took a re-conveyance of the land to themselves as joint tenants in fee. B. died, and his heir, who was also the heir of A., claimed the land; but the Court held that it was converted into personalty, and dismissed the bill. IN 1812, William Houghton and his brother James, entered into co-partnership, as soap-boilers, at Liverpool; but it did not appear that any articles of partnership were executed by them, or that the partnership was entered into for any definite term. In March, 1816, they agreed to purchase, of W. MacIver, for 8007., a piece of land in Liverpool, which they had previously rented and used for the purposes of their trade; and, by indentures of the 15th and 16th of that month, one moiety *of the piece of land was conveyed to uses for the bene- [*492] fit of James and his heirs, in the usual way to bar dower; and the other moiety was conveyed to like uses for the bene |