1840. Watson v. Watson.

during the life of William Pope; the principal was not given until after his death. That also was the period assigned, by the testatrix, for the distribution of their proportions of the fund among such of the legatees as were then of the age of 21, and from which the division of the interest was to be made with reference to those who had not attained that age. I think, therefore, that those only of the legatees who were living at the death of William Pope, are entitled to share this property." In the present case, there is no immediate gift except of the annuity; the principal is not given until after the death of the surviving annuitant: and, consequently, my client, who was the only child of the annuitants who was then living, is entitled to the whole fund.

THE VICE-CHANCELLOR:-I do not see much resemblance between this case and the case cited; as there, the question was, who was to take under the description of survivors and survivor.

In this case the testator, besides his sisters, Dorothy Martin and Mary Tunstall, and his brother Joshua, to each of whom he gives an annuity, mentions another sister, Jane, and another brother, Daniel, and makes certain gifts to their children, whom he names. Then he gives the three annuities; and, in a subsequent part of his will, he says: "The residue of my property, if any, to be equally divided between my nephews and nieces."

That, therefore, is a gift to all the persons answering the [*77] description of his nephews and nieces, *whether before

mentioned or not. Then he says: "If the annuities are paid by the interest of purchasing money in the stocks: at the death of the different parties, the principal to be divided between the children of the deceased." Now, as the annuitants were only three out of five of his brothers and sisters, it is plain to me that he meant to make, by this last clause, a bequest different from the gift of the residue to his nephews and nieces; that is, to the children of all his brothers and sisters. And, in my opinion, the true construction of the last bequest in the will, is, that as each annuitant dies, the principal of the stock purchased to answer the annuity, is to be divided between the children of

1840. Empringham v. Short.

that annuitant; so that it is, in effect, an immediate gift, in remainder, to all the children of the annuitant: and, therefore, the children of the annuitants living at the death of the testator, took a vested interest in the principal of the stock, as tenants in

common.

*EMPRINGHAM v. SHORT.

1840: 4th, 6th, and 29th July.

[*78]

On a motion to commit a defendant for a contempt, the defendant undertook to make reparation for the act complained of. Whereupon the Master was directed to inquire what reparation the defendant ought to make; and he was ordered to make such reparation accordingly; and to pay, to the plaintiff, the costs of the application and consequent thereon. Held that the report made in obedience to the order, did not require confirmation.

ON the hearing of a motion to commit the defendant for breach of an injunction, by which he was restrained from committing waste on part of the estates of the testator in the cause, the defendant undertook, by his counsel, to make such reparation for the damage done by him, as the Master should award: and, thereupon, an order, dated the 25th of May, 1839, was made, which, after referring to the undertaking, proceeded thus: “This court doth order that it be referred, to the Master of this court, in rotation, to inquire what reparation the defendant, James Short, ought to make for the damage done to the testator's estate, in ploughing up the 12 A. 1 R. 4 P. of pasture land in the pleadings mentioned, and sowing the same with mustard, flax, and poppy seed: and it is ordered that the defendant, James Short, do make such reparation accordingly, and pay, unto the plaintiff, the costs of this application and of the said inquiry, and consequent thereon, to be taxed by the Master."

On the 9th of November 1839, the Master, in obedience to that order, reported as follows: "I am of opinion that the reparation which the said defendant James Short ought to make VOL. XI.

5

1840.-Empringham v. Short.

for the damage done to the said testator's estate, in ploughing up the 12 A. 1. R. 4 P. of pasture land in the pleadings mentioned, and sowing the same with mustard, flax and poppy seed, is the sum of 150l., to be paid by him into the bank to the credit of this cause, and that the said defendant James Short shall be [79] permitted to use the *said land as arable land in future, treating the same in a good and husband-like manner; and that he shall take, therefrom, no more than two crops of corn in succession, without fallowing, one of such crops only to be wheat; and shall not, in future, plant or sow, on the said land, any mustard, flax, hemp, poppy seed, woad or other injurious roots or seeds, or permit any cole or turnips to stand thereon for a crop of seed: and the said defendant is to make such reparation accordingly, as the said order directs: and the bill of costs, of the said plaintiff, of the application for the said order and of the said inquiry and consequent thereon, amounting to the sum of 517. 7s. 10d., I have taxed at the sum of 481. Os. 2d.: and the same is to be paid by the said defendant James Short to the said plaintiff, as the said order also directs. (a)

The plaintiff did not move to confirm the report; but, on the 25th of November, 1839, he obtained an order, on notice, for payment of the 150l. into Court, pursuant to the report.

Mr. Knight Bruce and Mr. Sharpe for the defendant, now moved to discharge that order, for irregularity, on the ground that it had been obtained without the report being confirmed; whereby the defendant was prevented from excepting to the report as he had intended to do. They cited Chennell v. Martin, (b) and Scott v. Livesey, (c) and 2 Smith's Pract. 357.

[*80]

*Mr. Jacob and Mr. W. M. James, for the plaintiff, said that, as the report had been made in pursuance of an interlocutory order, it did not require confirmation; and that it appeared, from the order, that the report to be made in pur

(a) That part of the above report which relates to the mode of cultivating the land in future, seems not to have been warranted by the order.

(b) Ante, Vol. IV.
p. 340.

(c) 3 Sim. & Stu. 300.

1840.-Empringham v. Short.

suance of it, was to be final; for, otherwise, it would have concluded in the following words: "And thereupon such further order shall be made as shall be just; and, moreover, it directed the defendant to make the reparation, and to pay, to the plaintiff, the costs of the application and consequent thereon.

THE VICE-CHANCELLOR :-I have had a conversation with the Registrar, upon the subject of the order sought to be discharged in this case; and I find that it is difficult to determine, by any general rule, what are the reports which this court requires to be confirmed, and what are those reports which are taken to be sufficient for the court to act upon, though they be not confirmed. With respect to the latter class of reports, it seems to be rather singular that, notwithstanding they do not require confirmation, yet they may be excepted to.

But, when I look at this particular report, coupled with the order which gave rise to it, and see the way in which the order was drawn up, I cannot but think that it is a report which ought to have been confirmed; and that it was quite a surprise upon the defendant to move, in the way that was done, that the money should be paid into court.

The order of reference in this case, was of a very special kind; and, under it, the Master finds what sum ought to be paid by way of reparation for the damage done to that part of the testator's estate which was in *the defendant's posses- [*81] sion; and that the sum ought to be paid by the defendant, into court, to the credit of the cause. Then the Master goes on to state, as part of his finding, the particular mode of using the land in future.

Now the court was not asked, by the notice of motion upon which the order of the 25th November was made, to confirm the report; but to carry only a portion of it into execution. The defendant had carried in objections to the report; and it strikes me that, if the notice of motion had been to confirm the report, he would have seen what was the object of the party, and most probably would have matured his objections into exceptions.

1840.-Empringham v. Short.

But the particular mode in which the notice was given, appears to me to have thrown him off his guard.

I cannot but think that the report, upon the face of it, is one that required confirmation, and that the order that was drawn up was wrong; and the Registrar informs me that, if his attention had been called to the report, he would not have drawn up order, without the report being confirmed.

The consequence is that the order of the 25th of November the 1839, must be discharged with costs.

On the 29th of July, the plaintiff moved Lord Cottenham, C., to discharge the Vice Chancellor's order.

His lordship said that the order of the 25th of May was final; that it directed the defendant to make the reparation, [*82] when the amount should be ascertained by *the Master: and his lordship granted the motion, and directed the defendant to pay the costs of the application made to the ViceChancellor.