V.C. K.] EATON v. HEWITT. [V.C. K. was not ineffective. There was no absurdity in such limitations, and I doubt whether I should go so far as the V.C. went under those circumstances; but that case strongly illustrates this principle, that if it does produce an absurdity, then the doctrine that the testator meant the gift over to take effect either on the marriage or the death of the tenant for life is not to be held. In this case it is impossible to hold that the clause took effect either on the marriage or death of Eliza, therefore I must hold that that clause at least is entirely governed by that consideration; and it is immaterial whether the others are so governed or not, for Mary Hewitt might die without leaving children, or they might die under twenty-one without issue, and then the whole property would go to the children of Eliza; and therefore it being necessary that Eliza should leave children, if she had none, the clause would simply be inoperative, the condition being tacitly involved. Then we come to the last clause, which relates to the event that has now happened, of Eliza dying without issue. Now, this clause is not, as it appears to me, necessarily connected grammatically with the condition, because Eliza might have married and never had children, or if she had left this. He has already provided for the event of Mary dying without leaving any issue, that is without leaving a child or children, or if she leaves any, those children dying under twenty-one without leaving issue. He has, secondly, provided for the event of Eliza dying in the same manner, and he now provides for the event of both of them dying in the same manner. And, in the event of both dying without leaving any child or children surviving, or those children dying under twenty-one without leaving issue, then he makes a gift over to some collateral branches of his family. Now, the question is, whether the clause which contains the condition of Eliza marrying overrides all, or any, and which of the subsequent clauses? It is contended, on the part of the next of kin and of those representing the next of kin of the testator, that there is an absolute intestacy, founding that contention on the proposition that the clause of condition overrides all the gifts; and, that condition not having been fulfilled, the gifts fail, and there would be an intestacy. Another question raised is, that, even supposing there is not a total intestacy, what is to become of the income now? Eliza has died, without ever having been married. Mrs. Hewitt is living, and has several children, some of whom have attained twenty-none, then the whole property would go to Mary, one. It is suggested that that income is, at all events, because the income was given to the two dependent undisposed of, and goes to the next of kin. Another on the consideration of Eliza marrying. No doubt, as suggestion is, that the income is impliedly given to has been argued, the testator might have framed all Mrs. Hewitt, and that she is entitled to it, not by these consecutive clauses with a general intention; bat virtue of intestacy, but under the gifts of the will. the rule is, that if without absurdity you can give And a third suggestion is, that, even supposing she is effect to the intention the limitation over does not take not entitled by implication to the whole of the income, effect, and therefore, subject to the question of interyet she is, at all events, entitled by implication mediate income, the whole corpus on the death of to the income of a moiety. Now, it appears to Eliza unmarried goes to the children of Mary, subject me, that the conclusion of intestacy cannot be to the gift over on the contingent event of the death maintained. I see no reason whatever to sup- of Mary without leaving any children surviving. As pose that the testator intended that all the gifts, to the intermediate income, is that to go to the including the ultimate limitation of the collateral children? Does the corpus carry the income, or is there branches in case of failure of the testator's own issue, any interest in Mrs. Hewitt, by virtue of any implied should simply depend on the question whether Eliza gift in the will, or in the next of kin, by reason of married or did not marry, but it does not necessarily partial intestacy, to have the income till the death of follow that, because all the limitations are not de- Mrs. Hewitt? Now appears to me, as I have pendent upon that contingency, therefore none of said, with regard to the clause giving the income them are. It is a well-established rule that, where a in moieties to the two sisters in the event of Eliza testator gives to a person a life-interest during widow-marrying, that it can only take effect in the event that hood, or during the time of remaining single, that in the event of that person marrying, or marrying again, the property should go over to another person. Although, according to the mere language, the gift over is expressed only to take effect in the event of marriage, the courts, both of law and equity, will assume the testator intended the gift over to take effect even though the party never did marry; and if this were res integra, I think I should be bound to hold that if such a view would produce an absolute uncertainty the condition would not prevail. In this case none of the clauses contingent on Eliza's marriage would produce an absurdity; but it does not follow, because the holding the doctrine I have referred to would produce an absurdity as to one, that the condition is necessarily to be applied to all the clauses. In this case Eliza was to enjoy the whole income during her life in case she so long remained unmarried, and if she married it was to be equally divided between her and her sister. Now, it strikes me as a gross absurdity to suppose that the testator meant to say, whether Eliza marries again or not, even if she dies without ever having been married, then upon her death the income is to be divided for life between her and another person. I have the authority of the V.C. of England, and of Wood, V.C., to say that, in that case, the general rule, about which there is no question, does not prevail, the former in a case where there appeared no necessity for it, because it was corpus, and therefore part of the property, and would go to the devisee's legatees, or heir, or next of kin, and therefore the gift has not happened, and therefore it contains no gift of income to Mrs. Hewitt in the event which has happened. Now, in what part of the will can I find any design on the part of the testator that upon the death of Eliza, not the whole income, but a moiety of it, was to go to Mrs. Hewitt? I find no such intention expressed. Can I imply it to do so? I must find something in the context which necessarily implies that intention. It must be an irresistible inference arising out of something in the will, which reduces me to the necessity of coming to the conclusion that the testator meant that, although he has not in terms expressed it; but I confess I cannot find that in the will. If I may use such an expression, I should be glad if I could; because it would be more what I should suppose a testator would intend, that before the property went to his grandchildren it should go to their parent. But it has been well observed, that in a given event of Eliza marrying, and either having no children, or having children they all die before her, that in that event the gift is not then the income of that moiety to Mrs. Hewitt and then to her children, but a direct gift to the children, passing over Mrs. Hewitt. In order to imply a gift, I must find the ground of that implication in the will cited, and I confess, having carefully considered this will, I do not find any grounds upon which I can found an implication of intention to give Mrs. Hewitt during her life, in the events that have hap pened, either the whole or a moiety of the income. It appears to me, therefore, that the whole property, on the death of Eliza, became the property of the children, Vol. 7.] V.C. K.] THE LAW REPORTER. BRANDON v. BRANDON-SHEPARD V. BROWN. purchase-money in other lands. [V.C. S. with a vested interest in them, and subject to be devested | power, submit to bear all expenses of reinvesting the in the event of Mrs. Hewitt dying without leaving any child surviving her. The other event could not happen at all, her children dying under twenty-one without leaving issue, because I understand some of them have attained twenty-one. Therefore the children of Mrs. Hewitt have a vested interest in the whole of the property subject to be devested in case Mrs. Hewitt should die without leaving any children her surviving. Where the property will go in case that event happens, it is not necessary for me to determine, and I refrain from expressing any opinion upon it. I ought to mention the case which has been referred to, of Jeffery v. Reynons, more particularly as it is a decision of the H. of L. on the absurdity which would be involved in In that case applying the rule to a particular case. the testator meant the gift to take effect whether the termination of the interest of the tenant for life was to happen by reason of marriage, or by reason of death. The reasons on which the Lords proceeded in that case are not given in the report; but they are implied by the rule which prevails, that where an absurdity is involved by holding the doctrine you must not hold it. I refer to that case because it is a H. of L. case, and if I thought it a case governing the present, I should follow it; but I do not think it does. The costs of all parties must be borne by the estate. Solicitor, Thos. Smith, 15, Furnival's-inn. Friday, Nov. 7. BRANDON v. BRANDON. The person whose property they are taking has a right to insist upon that; but, at the same time, this court will not allow the obligation on the part of the company to be made use of, so as to entail upon them capriciously unnecessary expense. In the present case the question is, whether there was any mode of dealing with the matter except the course which has been taken. I think there The property taken by the company and was not. represented by this money was part of the subjectmatter of the suit of Brandon v. Brandon, and was brought into this court in that suit, and in the matter of the Railway Acts. If there was no suit the parties could by application deal with the purchase-money for reinvestment, but unless there were legal grounds and authority thereby vested in the court or the judge in chambers, so far as he has jurisdiction, to lay out the money in the purchase of any particular property, it would be impossible to deal with the matter except by coming to the court by petition. It has been ingeniously suggested, why should the trustees have bought this little piece of land with this 80%.? Could they not have bought it with other money? But that is It was said founded on the supposition that there is other money, which I happen to know there is not. there was no authority to buy this land; but no authority is required-if it had been I should have given it. There is evidence that it is a desirable purchase, and the question then is, can they come here without serving all parties to the suit? Clearly not. Lands taken by railway company-Reinvestment—The petition is properly entitled in the Acts and in More than one purchase-Costs. A railway company took lands forming part of the This was a petition entitled in the causes and in the Baily, Q. C. and Hardy appeared for the peti- J. T. Humphrey for the South-Eastern Railway Walford, Cracknall and Elderton for other parties. The VICE-CHANCELLOR. The principle this court suit. The case, therefore, comes within the principle which I have referred to at the outset, which governs these cases, that expenses not capriciously, but rightly incurred, in order to get the authority of the court for the application of the money, must be borne by the company. No doubt the expense of more than one investment is somewhat heavy, but the Legislature has provided that the company shall only pay the expense of one purchase, unless the court should think it was for the benefit of the cestuis que trust to have it in more than one. Here it is for the benefit of the estate, and the company, therefore, must pay the costs. Solicitors, Messrs. Parker, Rooke and Co., J. C. Rees, F. Mawe, and Shaen and Grant. V. C. STUART'S COURT. Wednesday, Dec. 10. SHEPARD V. BROWN. Demurrer-Bill for discovery and account-Concur→ rent jurisdiction at law and in equity. The right to discovery was A bill by an agent against his principal prayed a discovery and an account. not strenuously denied by the deft., but he demurred on the ground that the account ought to be taken at law, and that this court had no jurisdiction. Demurrer overruled. In matters of account, courts of law and of equity have, generally speaking, a concurrent jurisdiction, and in deciding whether the account shall be taken by a plt. in equity or not, the court will be guided by a consideration of what is best, with a view to the convenience of the parties. This was a demurrer to a bill for want of equity. The plt. was a person acquainted with the engineers and managers of several foreign railways, and the bill alleged to the effect that the defts, who now and have for some time past carried on business in copartnership at the Atlas-street Steel Works, Sheffield, as manufacturers of steel and iron goods, arranged in May 1860 to give the plt. a commission on certain orders which he might obtain for them; that the plt. had Malins, Q.C. and C. Barber, in support of the demurrer, contended that, as the bill sought discovery, and prayed relief in respect of that for which the plt. had a remedy at law, this court had not jurisdiction in the case, and that the proper tribunal under the circumstances was a court of law. They cited Dinwiddie v. Bailey, 6 Ves. 136; Mackenzie v. Johnston, 4 Madd. 373; Pearce v. Creswick, 2 Hare, 293; Phillips v. Phillips, 9 Hare, 471; Padwick v. Stanley, Ib. 627. Bacon, Q.C. and Fitzhugh, in support of the bill, referred to Adley v. The Whitstable Company, 17 Ves. 324; Ryle v. Haggie, 1 J. & W. 236; Pearce v. Creswick (ubi suprà); and the North-Eastern Railway Company v. Martin, 2 Phill. 758. Malins, Q.C. in reply. [V.C. S. ascertained that orders to a very large amount had, in | decided. In some cases it may appear very plainly consequence of his introduction, been given to the that the question would be more conveniently decided defts.; that he had incurred considerable expense and at law; in others, that it may be more conveniently loss of time in procuring such orders; that he had fre- decided in a court of equity. In the case of Dinwiddie quently applied to the defts. for an account of the v. Bailey, where a bill was filed by a broker for an orders obtained for them by him, and for the payment account, in order to enable him to recover the amount of his commission thereon, in accordance with the of his commission, Lord Eldon said: "It is clear this arrangement between him and the defts., but that he case might be disposed of altogether at law. It is had obtained no answer to his applications; and it another question, whether the jurisdiction of this prayed for a discovery and for an account. court might not attach upon it." If the jurisdiction for discovery be allowed, it is difficult to see upon what principle this court can refuse relief, where the question is one of convenience. In the case of Mackenzie v. Johnston, Sir John Leach had before him, on demurrer, the case of a bill filed by a principal against an agent whom he had employed to sell goods for him. That was this very case, except that here the bill is by an agent against his principal. It was not, it could not be, doubted in Mackenzie v. Johnston, that an action at law would lie, and the demurrer was argued on the ground of the question being one to be properly tried in a court of law. In overruling the demurrer, Sir John Leach said: "The defts. here were agents for the sale of the property of the plt.; and wherever such a relation exists, a bill will lie for an account. The plt. can only learn from the discovery of the defts. how they have acted in the execution of their agency; and it would be most unreasonable that he should pay them for that discovery if it turned out that they had abused his confidence; yet such must be the case, if a bill for relief will not lie." Lord Eldon, in the case of Adley v. The Whitstable Company, observed: "It is said that the party may have a discovery (which is what would happen here, the jurisdiction as to discovery being admitted) "and then go to law. The answer to that is, that the right to discovery carries along with it the right to relief in equity." Why? Because, when relief is, sought in the shape of an account, courts of law and equity have, generally speaking, a concurrent jurisdiction. Sir Thomas Plumer, in the case of Ryle v. Haggie, states precisely the same view. The defts. on this occasion have quoted a case before Sir J. Wigram, V. C., of Pearce v. Creswick. In that case Wigram, V. C. does not state any one proposition, nor does he decide the case in any way which supports the argument in favour of this demurrer. The case then is this: it is one in which, either at law or in equity, an account must be taken; one in which the right to discovery in equity is admitted; and what I have to decide is, whether, since the late Act of Parliament, there is no longer any jurisdiction to direct an account. I should not be justified in taking any such view. It is very true that in the case of Phillips v. Phillips Sir G. Turner, V.C. said that, in order to maintain a bill of this nature, there must be a mutual demand, and a mutual account means that each of the two parties must have received and paid money on account of the other. The same qualification is to be found in another part of the judgment of the V.C. He says, that it would require a strong case for a court of equity to entertain a bill for an account, when the account is all on one side. In the present case it may possibly appear that the account is on one side; but it would be hardly fair to assume that. I consider, upon the authority of the law as laid down in Phillips v. Phillips, keeping the late Act of Parliament in view, that this is a case in which the plt. might have had a discovery (which is a remedy in aid of the right of account), and I cannot send him out of this court to seek relief in a court of law. I therefore find myself bound to overrule this demurrer. The VICE-CHANCELLOR.-The substance of the plt.'s case is, that he was employed by the defts. to obtain orders for goods manufactured by them, and that he was to be allowed remuneration in the shape of commission upon the amount of all goods sold under orders which were obtained through his exertions. Upon that he comes to the court with a bill, and he prays relief first of all, I think, in the shape of a declaration that he was properly constituted an agent; and next he seeks an account of all orders received and executed by the defts. through his exertions; and by the machinery of an account he seeks to have it ascertained how much is coming to him for commission in respect of the quantity of goods so sold. To this bill a general demurrer has been filed for want | of equity. It is said with perfect truth that at law he might recover in an action the whole amount of that commission which he seeks to recover by account in this court. In order to recover at law, however, he must be able to prove what orders have been received, how much has been sold by the defts., and what has been received by them in respect of the sales, in order to ascertain the amount of the commission. It is quite plain, from the allegations in the bill, that, as the transactions of sale are transactions by the defts., and not by the plt., there must be in the custody of the defts. that which affords material evidence for the plt. to enable him to recover at law or in equity. It cannot he denied that a bill for discovery would lie. Some faint attempt has been made to argue that the court has lost its jurisdiction in regard to discovery, because, since the recent Act, courts of law have had given to them a jurisdiction of discovery. But I know of no authority to justify me in holding that this court has lost the power to enforce discovery. The case of the plt. is one in which he seeks an account of transactions and dealings with the defts. in which he is materially interested, and the evidence of which must remain principally, if not entirely, in the hands of the deft. I think it would be extremely difficult to say, that upon a bill seeking an account of that kind upon a case so stated, this court has no jurisdicdiction to entertain it Lord Cottenham, in the case cited by Mr. Fitzhugh, of The North-Eastern Railway Company v. Martin, decided that, upon a question of account, where courts of common law and of equity have concurrent jurisdiction, if a question arises, whether the remedy for an account should be at law or in equity, it should be decided with a view to the convenience of the parties as to the mode of having it Vol. 7.] V.C. S.] Friday, Dec. 12. THE LAW REPORTER. Hook v. HOOK. [V.C. W. her children. The petitioner never had an absolute Re THE TRUSTEE RELIEF ACT (10 & 11 Vict. interest, because the event contemplated-her marriage c. 96), AND Re THE TRUSTS OF THE WILL OF-by which her interest was cut down, had happened. At her death the children would be entitled absolutely, WILLIAM SARJEANT. and if there were none, it would go to the husband. He referred to Child v. Giblett, 3 Myl. & K. 71; and Smith v. Coleman, 26 Beav. 216. Will-Construction-Conditional limitations. Testator bequeathed property, at the decease of his wife, to his wife's niece, for her own absolute use, provided that she survived his wife, or if she married before her aunt's death, then the property was to go equally between her children, but if none, then to her husband. If she died unmarried before his wife, then he willed that, at his wife's decease, his property should go to other persons in the will named: Held, that three events were contemplated: one, the niece surviving the aunt, in which event she was to take absolutely; another, her dying before her aunt, leaving children, in which event the property was to go to the husband; the third, there being neither niece, husband, nor children at the death of the aunt the tenant for life, in which event it was to go over. The niece married and had children in the lifetime of the aunt, and survived her: Held, that she was entitled absolutely. This was a petition presented by Martha Weeks, the wife of James Weeks, of Poole, by Edward Henry Henning, her next friend, praying that it might be directed that a sum of 3651. 19s. 7d. Three per Cent. Consolidated Bank Annuities might be sold, and that the money to arise from such sale and the dividends thereon (less the costs) might be transferred to the petitioner for her own absolute use and benefit. William Sarjeant, late of Wimborne Minster, by his will, dated the 4th May 1846, inter alia, gave and bequeathed to his wife Hannah all the interest-money arising from the whole of his property to and for her support during her life, and he directed that his executors should pay her out of the principal sum that he might die possessed of 201. per annum, or as much as would make her income 30l. per annum; and at the decease of his wife Hannah the testator gave the remaining part of his property to his wife's niece, Martha Coombs, for her own absolute use, provided that she survived his wife; or, if she married before her aunt's death, then the property was to go equally between her children, but if none, then to her husband. If she died unmarried, before his wife Hannah, then he willed, that at his wife's decease his property should go to other persons, as in the will mentioned. The testator appointed two executors, and his wife executrix, and died on the 7th May 1846, and his will was proved on the 12th June following. The testator's widow died on the 26th Feb. 1853. The petitioner, on the 21st Oct. 1847, intermarried with, and was at the time the petition was presented the wife of, James Weeks, and had three children living. The residue of the testator's estate had been paid into court and invested, and was standing to the credit of "the account of the parties entitled to Wm. The dividends on the Sarjeant's residuary estate." residue had been paid to the petitioner since the death of the widow up to April 1862, and she was now desirous to have the principal sum transferred to her for her own absolute use and benefit. Kay, for the petitioner, submitted that she was absolutely entitled to the fund; but if this were a conditional limitation to become vested absolutely only in the event, of her marriage, then it was void, as being against the policy of the law. He cited Morley v. Rennoldson, 2 Hare, 570; Lloyd v. Lloyd, 2 Sim. N. S. 259. Geo. Lovell, for the children and husband, submitted that this was a settlement of the fund for their benefit. The word "then" meant in the event of marriage generally, and not in the event of marriage before the aunt's death. If the petitioner married before her aunt's death, then the fund was to go to The VICE-CHANCELLOR.-It seems to me, notwithstanding the difficulty of this case, to be sufficiently clear that upon the death of the tenant for life there were three objects of the testator's bounty, each of whom, if they took anything at all, was to take There are no words to cut down the absolutely. interest given to the petitioner, to the children, or to the husband. The first gift is to the petitioner abso. lutely, provided she survived the testator's wife. That is intelligible enough. Then the next thing contemplated was, her not surviving his wife and leaving children, and then, if she married before his wife's death, the fund was to go equally between her children. The testator That was a very sensible direction. directed that the petitioner should take absolutely, or that in another event the children were to take absolutely. It was an extremely rational direction to make in a will that, provided the object of the testator's bounty should survive the tenant for life, she should take absolutely; but if not, the children, if any survived, were to take in the alternative, or if none, the husband was to take. The limitation, that if she married before it would be a gift to the husband, because if there Saturday, Nov. 22. Gavelkind tenure-Descent to collaterals. A bill was filed to have the rights of the several parties under a testator's will declared. It appeared that at the time of his death he was seised Held, that H. took a moiety of the gavelkind lands, Hook v. HOOK. V.C. W.] assigns, upon the trusts following (that is to say), upon trust as soon as conveniently might be after his decease to sell and dispose of his said real estate, and also such parts of his personal estate (except his said leasehold property) as should be of a saleable nature in such manner as the trustees or trustee for the time being of his said will should in their discretion think most advisable. And the said testator directed his said trustees to stand possessed of his residuary personal estate and of the moneys arising by the sale of his said real estate, and also of such part of his said personal estate as should have been sold upon the trusts following, that is to say, upon trust to distribute and divide the same into eleven equal parts or shares, save and except that two of such shares should be less than the others of them by the sum of 50%. each, and which two several sums of 50l. each, arising from the same two lesser shares, should be added to and form part of the nine remaining shares, and upon trust to pay one of such lesser shares unto his nephew the deft. James Barnard, and the other of such lesser shares to his niece the deft. Mary Ann, the wife of the deft. Edward Colbran, and to pay one of the nine remaining shares, including therein the said two sums of 50%. each, to each of the following persons, namely, his niece the deft. Caroline, the wife of the deft. Alexander Ross; his niece the deft. Charlotte, the wife of the deft. Jesse Barrow; his nephew William Hook; his sister-in-law Aun Stevens, Jane Clifton (therein described as his niece), William Stevens (therein described as his nephew), Ann Stevens (therein described as his niece). And the said testator declared that such of the said shares as were given to married women should be held in trust for them for their respective separate use; and the said testator directed his trustees to stand possessed of the two remaining shares upon trust, as to one of such shares, to pay one equal moiety or half part thereof to the deft. George Hook, son of his late nephew Robert Hook, and to stand possessed of the remaining moiety or half part thereof, and also of the said remaining share, making together three twenty-second parts or shares, upon trust to invest the same as therein mentioned, and to pay and apply the annual produce arising from such investment in manner therein expressed and declared. And the said testator directed, that in the event of the death of any infant legatee the share of such legatee so dying should go to and be equally divided amongst the brothers or sisters, if more than one, or brother or sister if only one (as the case might be) of such deceased infant legatee, and if there should be no such brother or sister surviving such infant legatee, then to the next of kin of such legatee; and the said testator gave all his leasehold estate to the plt., his executors, administrators and assigns, and the said will contained the usual provisions as to the receipts of trustees and the appointment of new trustees, but no further or other residuary gift of real or personal estate, and the said testator thereby appointed the plt. Spencer Hook and the said Thomas Burfield executors and trustees of his said will, as by the said will or the probate thereof will appear. The testator died on the 8th July 1861 without having revoked or altered his said will. [V.C. W. William Hook the nephew of the said testator, the said Ann Stevens the said testator's sister-in-law, and the said William Stevens respectively named in his will, died in the lifetime of the said testator. The plt. and the defts. James Barnard, Mary Ann Colbran, Caroline Ross and Charlotte Barrow, at the time of the decease of the said testator, were his sole next of kin; William Stevens, Jane Clifton, and Ann Stevens, described in the said will, being the son and daughters respectively of the testator's said sister-inlaw Ann Stevens. Doubts having arisen as to the persons who were entitled to the said three lapsed shares of the said testator's real and personal estate, and whether or not the same lapsed shares, so far as they comprised res estate, were converted by the said trust for sale in the said will contained, and if such conversion had not taken place, then as to whom the said lapsed shares of real estate descended as heirs in gavelkind, the plt. submitted to the judgment of this honourable court, and asked for a declaration of the rights of all parties as to the said three lapsed shares, and, if necessary or advisable, that the trusts of the said will might be performed and carried into execution by and under the direction and decree of this court. The plt. submitted that he was entitled, as one of the next of kin of the said testator, to a share of his said undisposed-of personal estate and as his sole heir in gavelkind to any undisposed-of real estate of that tenure, but the plt. believed that the defts. George Hook and Robert Hook claimed to be entitled to a moiety of the same by the right (as they allege) of represen tation, the said two defts. being great-nephews of the said testator, and the only sons of the plt.'s only brother now deceased. The bill prayed (inter alia) as follows:-That the rights and interests of the plt. and the said defts. respectively, in and to the said testator's undisposed-of real and personal estate might be declared by this honourable court. J. Napier Higgins (Rolt, Q.C. with him) for the plt., contended that there was no case which had extended the custom of gavelkind to collaterals beyond brothers, and the rule ought net now to be so extended. The rules of descent by the old common law, of which gavelkind tenure was a part, were the same for realty and personalty. Gavelkind was a feudal tenure, and the partibility could not have extended to collaterals. He cited Co. Litt. 1406; Chitty on Descent, 183; Beviston v. Hussey, Skin. 358; Crump v. Norwood, 7 Taunt. 362; Radcliffe v. Chaplin, 4 Leon. 242; Denn v. Spray, 1 Term R. 461, 1 Rolls Abr. 623; Blackborough v. Davis, 1 P. Wms. 49, 2 Black. Com. by Coleridge, 85 n. Osborne, Q.C., for the defts., the children of the son of testator's brother, contended that partibility did extend to collaterals; that representation was an integral part of the law of descents, and that the defts. were entitled to a moiety of the gavelkind lands between them. He cited Clement v. Skudamore, 1 Salk. 243; s. c. 1 P. Wms. 63; Locke v. Coleman, 1 Myl. & Cr. 423; Robinson on Gavelkind, 3rd edit. 116; Watkins on Descents, 95. J. N. Higgins in reply. The VICE-CHANCELLOR said the case had been The testator at the time of his death aforesaid was ably argued. Referring to Doe v. Gooding, cited and seised of or entitled to real estate of gavelkind tenure commented upon in Chitty on Descent (ubi suprà), he of considerable value, and also to personal estate of observed that the opinion of the counsel in that case considerable value. agreed to the extent that the partible property of gavelkind extended to "brothers and "the issue," or "representative of brothers," which in his (the V. C.'s) opinion was sufficient for him to decide the present case. Lord Holt, in Clement v. Scudamore, had said "the law would imply all the necessary incidents of descent;" now one of them was clearly " representation." With reference to the enactments. |