guous word "unmarried" is to bear. It may mean, without violence of language, either" without ever having been married," i.e., being a spinster, or "not being married at the time of her death," i.e., being a widow. The rule in all such cases of ambiguity is to see by the context which meaning is intended, and if this does not assist the construction, then to construe the word according to its natural or proper English meaning. For a case where the words used were "without ever having been married," see Emmins v. Bradford, 49 L. J. Ch. 222; L. R. 13 Ch. D. 493.

184. Certain trust funds are settled upon trust for a widow for her life, for her separate use, without power of anticipation, and after her death upon trust for such persons as she shall by will or codicil appoint, and, in default of appointment, upon trust for her children equally. Can you suggest any method by which she can by deed secure to one of her children a share in the trust funds, to enable him to raise money upon it, and, if so, what objections to the security, which could be made, would occur to you?

No indefeasible interest in the trust funds can be given to the son by his mother except by will.

She can release or covenant not to exercise or disclaim her power of appointment in part or altogether. This latter is now settled law (see Sugden on Powers, 8th ed., 88-90), after some doubt existing upon the subject, by decided cases and recently by statute (the Conveyancing Act, 1881, s. 52; Conveyancing Act, 1882, s. 6); but any release by her will not have the operation desired above. It will only bring the trust as on default of appointment into force.

She might execute a covenant or bond in her son's favour to leave him by will, or in default charging her separate estate which is not subject to any restraint against anticipation (if any), and her executors or administrators with the payment of a fixed sum agreed upon between them, which is to be accepted in performance of her covenant if not literally performed. This will not affect the trust funds, but will be useless if the mother has no such separate estate, as is probably the case here.

Another mode suggested is that she should covenant to exercise the power in his favour, and execute a will in exercise of her power. The objection to this is that there will be no remedy against her estate (if any) for damages if she does not perform her covenant by

revoking the will before her death. (See Palmer v. Locke, 50 L. J. Ch. 113.) The lender on such a security only trusts to the mother's moral promise to exercise the power by will, and not to revoke it so far as this son's share is concerned.

185. Certain real and personal estate is devised and bequeathed upon trust for A. for life, with remainder in favour of such person or persons as A. shall by will appoint, and, in default of appointment, to B. absolutely. A. by will appoints to trustees, upon trust for C. absolutely, and appoints the trustees executors. C. dies in A.'s lifetime. Upon whom does the real and personal estate devolve upon A.'s death? State the grounds of your answer.

So much of the property as falls under the denomination of real estate will devolve upon A.'s residuary devisee or heir-at-law, and so much of the property as falls under the denomination of personal estate will devolve upon A.'s residuary legatee or next of kin, by way of resulting trust. (In re Van Hagen, 50 L. J. Ch. 1.)

A. has under the original will a life estate, accompanied with a general power of appointment over the remainder. Such general power is for almost all purposes equivalent to property, and by exercising it in favour of trustees for A. absolutely, A. has shown an intention to exercise it, and to exercise for C.'s benefit, assuming, as A. has done, that C. survives A. Now A. has not failed to exercise his power of appointment, and therefore B. cannot claim the property; and as C. has not survived A., the trustees hold the property upon a trust which has failed, and in accordance with the ordinary rule of law in such cases it is a simple case of a resulting trust; and as respects resulting trusts, the law is the same as to real as to personal property. (Re Van Hagen, supra.) It would not have been so if there had been no trustees.

186. A leasehold house is settled upon trust for A. for life, and after her death for such persons as she should appoint by will, and, in default of appointment, to B. A., by will, appointed the house to her nephew C. absolutely, and gave the residue of her property to D., whom she appointed her executor. C. died in A.'s lifetime. On A.'s death who is entitled to the house?

D. will be entitled to the house. A. has a power of appointment which is unlimited in its objects. C. having died in A.'s lifetime

his interest therein has lapsed; and C. is not a child of A. so as to come within the benefit of sect. 33 of the Wills Act (1 Vict. c. 26, s. 33).

By the operation of sect. 27 of 1 Vict. c. 26, "A general devise of real or personal estate is to be construed to include any real or personal estate over which the testator has a general power of appointment, and shall operate as an execution of such power unless a contrary intention shall appear by the will;" and by the operation of sect. 24 of the same Act, "Every will is, in the absence of a contrary intention being shown, to speak and take effect as if it had been executed immediately before the death of the testator." The leasehold house will pass to D. under the residuary devise. Sect. 27 applies only to general powers, but it matters not that a particular form of execution (i.e., by will) is here required. (Sugden on Powers, 8th ed., 306—7.)

187. How far can a contingent power of appointment, affecting the legal interest in land, be exercised by deed or will before the contingency is determined by the event; and does it make any difference whether the power is general or limited? What Acts of Parliament affect the law on this subject?

The rules are as follows:

(1.) A power presently given to a designated person to be exercised upon a contingency can be well executed before the contingency happens.

(2.) But a power which is not to arise until a future or contingent event happens, or until a condition is fulfilled, cannot be exercised until the event happens or the condition is fulfilled; for until then it has in fact no existence.

(3.) A general power affecting the legal estate in land, given to a contingent person, could not, under the old law, be exercised until the person to exercise it was determined by the event. But this is altered by virtue of 8 & 9 Vict. c. 106, s. 6, which makes contingent interests alienable.

(4.) Before the Wills Act, a power affecting the legal estate, given to a contingent person, was not well exercised by the will of that person before the contingency determined for the will spoke from its own date, at which time the power was in the nature of a con

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tingent use; and such uses were only devisable when they were descendible, and this they could not be unless the person who was to take was certain.

(5.) A general power of appointment, whether affecting the legal or equitable estate, may now be well exercised, by deed or will, by a contingent person who in the event proves to be the person actually entitled to exercise the power.

(6.) But a limited power, given to a contingent person, cannot be well exercised, at all events by deed, until the person to exercise it is determined. Whether such a power may be exercised by will, in virtue of the 24th sect. of the Wills Act, which makes a will, with reference to the real and personal property comprised therein, speak from the death of the testator, appears to be doubtful.

(Mozeley's Law Exam. Journal, No. 52, p. 242, citing Farwell on Powers, 118–131.)

PRACTICE OF THE SUPREME COURT.

188. Give the outline of the proceedings in an action on the part of plaintiff and defendant?

(1.) Writ of summons which unless renewed must be served within a year. Service thereof personally, or substituted service after obtaining an order therefor upon an affidavit showing that personal service cannot be promptly made, unless a solicitor undertakes to appear, and does appear, for the defendant.

(2.) Appearance of defendant. (See hereon Rules S. C., May, 1883.)

(3.) Statement of claim or notice in lieu thereof.

(4.) Statement of defence with or without counterclaim; or demurrer; or defence and demurrer combined.

(5.) Discovery, including interrogatories delivered and answered by either party requiring the answers, and order for affidavit of documents made against either party, or in the case of a company being a party, by one of its officers competent to do so, and inspection of property forming the subject matter of the litigation, or any of these, according to circumstances. (See hereon Lyell v. Kennedy, 52 L. J. (H. L.) Ch. 385.)

(6.) Reply by the plaintiff.

(7.) Rejoinder, if issue is not joined in the reply, without any special pleading.

(8.) Notice of trial.

(9.) Notices to produce and admit and inspect respectively. (10.) Trial or hearing

(11.) Verdict, if there is a jury, but whether there is or not judgment, followed by taxation of costs, and execution, by one or more of the following writs of fi. f., elegit, attachment, sequestration, or by a charging order, stop order, garnishee order, &c., &c., &c.

The above includes the course ordinarily pursued in an action which is fought out by all parties either in the Chancery or Queen's Bench Division.

It may be followed by:—

(12.) Appeal upon question of law to the Court of Appeal by motion, or by rules nisi and absolute for a new trial, and a new trial where there is a misdirection, or, more usually, a verdict against the weight of evidence.

If the action is solely of an administrative nature, in the Chancery Division, the procedure is generally as follows:

(1.) Writ with claim indorsed for (say) administration.

(2.) Summons under Order XV. for an administration decree.

(3.) Statement of claim raising point of construction arising under a testator's will.

(4.) Statement of defence.

(5.) Notice of motion for judgment, at the hearing at which the point of construction is decided at once or adjourned until after further consideration, but in either event any necessary accounts and enquiries may be directed to be taken in chambers, and further consideration is adjourned.

(6.) Summons to proceed upon order, and proceedings thereunder, ending in chief clerk's certificate, which is filed eight days after it has been signed by the judge, and if no summons has been taken out in the meantime to vary it the action may be set down upon.

(7.) Further consideration, when any remaining questions are disposed of, and costs ordered to be taxed. If no argument is required, it can be marked as a "short cause." If there are further difficulties to be disposed of, it may be adjourned for a second or even a third further consideration. (See Haynes's Chancery Practice.)