1841.-Jones v. Price.

Now, in this case, we have to put a construction on the lan guage of a will; and the rules of construction which are applicable to such instruments, are not applicable to the case of a trust declared in a deed: because the Courts construe wills with more laxity and with more attention to their various passages, than are allowable in construing deeds.

The testator, in this case, sets out with nominating and ap pointing his three friends, T. L. Jones, C. T. Jones and J. Taylor, and their respective heirs and assigns, the executors of his will. Now it is evident that he had a very imperfect notion as to what the words: "their respective heirs and assigns," meant; and I rather think that you will see, upon the whole construc tion of this will, that the word "respective" may be very well rejected without injuring the testator's meaning; and that, in

fact, unless you do reject it, you cannot act on the will [*566] at all, as far as the real estate is concerned. *Then he seems, in the subsequent part of the will, to have known how to give an estate in fee simple, for that he does in plain

terms.

I should have observed, with respect to the first clause, that, according to my apprehension, the Ecclesiastical Court never would consider that the executorship was to be split and go to the heirs of the three, or to the assigns of the three. The as signs of what? I apprehend that, in the event of all these three persons dying, the executor of the surviving executor, if he proved the will in the same Court, would be the personal repre sentative of the testator; so that, in that respect, the words: "their respective heirs and assigns," must be rejected as nonsen sical. Then he goes on thus: "I do hereby give and devise unto the said Thomas Longueville Jones, Charles Thomas Jones and James Taylor, and to their respective heirs and assigns, all and every the residue and remainder of my estates, both real and personal, for ever, in trust for the purposes hereinafter set forth and declared; and, first, that they, the above-named exec utors and devisees in trust of this my will and (not or) their respective heirs and assigns, shall and do sell." Now, if nobody was to sell except the three trustees and their heirs and assigns,

1841.-Jones v. Price.

how could there ever be a sale at all? How was it possible that the heirs could join with the ancestors? How was it pos sible, before any conveyance was made, that there could be any assign to join either with the heirs or with the ancestors? If the words are to be taken as they stand, they are nonsense: because, there being no severance in the execution of the trust, the trust is to be performed by every one and their respective heirs and assigns. Then he authorizes and empowers the same three gentlemen: "and their respective heirs and as#signs, so to sell, release and convey, all the estates here- [*567] by devised to them, and to give legal receipts for the consideration-money that shall be paid to them for the same:" and, afterwards, he says: "I do hereby declare it to be my will that, after such receipts so given, the purchasers respectively shall be exonerated and discharged from all obligations as to the future appropriation of the money under the trusts of this my will: and I further request the executors of this my will, to sell and convert into money, all my farming stock, furniture, &c., as soon after my decease as to them may appear proper, but without prejudice, as to the furniture, to the accommodation herein before given to my affectionate wife Diana; and, out of the moneys;" -he has before spoken only of money, in the singular number: -"and out of the moneys so arising and all other portions of my personal estate, they, the executors of this my will, and their respective heirs and assigns are required to pay, &c." It appears to me, therefore, that the fund out of which they are required to make the payments, is made up both of the money that was to arise from the sale of the real estates, and the money that was to arise from the personal estate; otherwise there would be a useless change of language, and the word "moneys," would be made applicable only to one sort of money, which was before named: but, as the word "money," is used twice before, (once with respect to the real estate, and once with respect to the personal estate,) it appears to me that the most natural construction is that the word "moneys," applies to both descriptions of money. Out of that they are: "required to pay all my just debts, funeral and testamentary expenses, and the sums VOL. XI.

30

1841.-Jones v. Price.

of 3,000, and 1,000, to my wife," and several other lega cies which are mentioned: and the trustees and execu [*568] *tors are required to pay those further sums out of the same fund. Then he says: "and I hereby will and dispose of all the residue or surplus proceeds of all my real and personal estates, in manner following." In my opinion, the natural construction of those words, is that the subject which he ultimately deals with, is the residue or surplus proceeds after paying the debts and making the other payments before directed. The consequence is that no clause making the receipts of the trustees sufficient discharges, is necessary, the purchaser not being bound to see to the application of the purchase-money.

Then the testator directs that the three trustees or their respec tive heirs or assigns, (so that he there changes the language,) shall place all the said residue and surplus proceeds in some of the public funds, in their joint names. Now, supposing the case was that the three trustees had died, and had left three heirs; what are they to do? They are to place the surplus proceeds: "in some of the public funds, in their joint names, or upon mortgage of some real estates of land, as may appear to them the most proper; and all the dividends and interest that may arise and become due therefrom, is to be received by the executors and devisees in trust of this my will, or their respective heirs and assigns." How was that possible? When once the fund was invested in the joint names, those only could receive the dividends who happened, in the ordinary course of law, to represent the parties in whose joint names the fund was placed. Therefore, there is an end, at once, to any meaning in the words: "the executors and devisees in trust of this my will or their respective heirs and assigns."

[*569]

*Looking at the whole of this will, the proper course seems to be, to omit altogether the word "respective," and to construe the will just in the same manner as if that word was not there, and then it will be all plain and simple; because then the trustees, when they do sell, will invest in their joint names. The words: "heirs, and assigns," are inapplicable to the public funds: they must mean, executors, administrators

1841.-Eedes v. Eedes.

and assigns" that is, the representatives of the joint body; for they alone can, by any possibility, receive the dividends of the joint fund.

Declare that the debts are charged on the proceeds of the sale of the real estates, and that the two plaintiff's can make a good title.

EEDES v. EEDES.

1841: 17th & 18th February.

A married woman who had left her husband and was living separate from him, but not in a state of adultery, held to be entitled to a settlement out of a sum of stock, to which her husband had become entitled in her right.

THE bill was filed, by a married woman, against her husband and the trustees of a sum of stock to which she, or her husband in her right, had become entitled, for a reference to the Master to approve of a proper settlement of the fund, no settlement or agreement for a settlement whatever having been previously made.

The plaintiff had left her husband in consequence, as the bill alleged, of ill treatment which she had experienced from him, and was still living separate from him. He did not contribute to her support; but she was endeavoring to maintain herself by keeping a school.

*Each party entered into evidence as to the conduct [*570] of the other; but there was nothing to show that the wife had been unchaste.

The question was whether the wife was entitled to a settlement out of the fund, notwithstanding she was living separate from her husband.

Mr, Knight Bruce and Mr. G. L. Russell, for the plaintiff, cited

1841.-Eedes v. Eedes.

Roberts v. Roberts, (a) Watkyns v. Watkyns,(b) Carr v. Eastabrooke,(c) Ball v. Montgomery.(d)

Mr. Jacob and Mr. K. Parker, for the plaintiff's husband, cited Coster v. Coster,(e) Bullock v. Menzies,(g) De Manneville v. De Manneville,(h) Duncan v. Duncan.(i)

Mr. Lowndes for the trustees of the fund.

THE VICE-CHANCELLOR :-I take it to be perfectly settled law, that, where a wife is entitled to a chose in action which consists of a principal sum and not merely income, she may file a bill, against her husband and the trustee, for a settlement. Circumstance of conduct on the part of the wife, may, certainly, exist under which the Court would not listen to her case. But that is not so here for nothing has been shown to induce the Court to withhold a settlement, to which she is prima facie en[*571] titled. *The amount of the evidence is, that the wife has used very provoking language, and that the husband is of an irritable temper, and the effect was that she went from his house on a certain day, and has ever since lived separate from him. There is no evidence that she ever deviated from the conduct of a chaste wife; but, on the contrary, it is shown that she has lived in a penurious and laborious manner, and has support ed herself by her own industry, without any assistance whatever from her husband. So far the husband's conduct is not free from blame. I, however, do not sit here to decide on the merits or demerits of the husband; but, having heard no reason why there should not be a decree, I think it ought to be referred to the Master, to approve of a proper settlement of the plaintiff's property.

(a) 3 Cox, 422.

(b) 2 Atk. 96.

(c) 4 Ves. 146.

(d) 2 Ves. 191.

(e) Ante, Vol. IX.

(g) 4 Ves. 798.

p. 597.

(h) 10 Ves. 52; see 56.

(i) 19 Ves. 394.