Jongsma v. Jongsma (a); Doe d. Evans v. Evans (b); Secondly, the term at least passed to the widow. It was purposely kept alive as a term in gross, and was not a satisfied term attending the inheritance; Gunter v. Gunter (f). The MASTER of the ROLLS. I will not trouble the Defendant on the first point, for I must strike out the word "personal" to make the will include freeholds. case. The cases referred to were cases in which, after a long enumeration of particulars relating to personal chattels the word "estate" was used, and the question was, whether it was to be treated as a word ejusdem generis, and I am of opinion that they have no application to this Here the testator gives "the whole of my personal property, estate and effects of every and whatsoever kind they may be." If he intended to give her all his freehold as well as his personal estate, it was wholly unnecessary for him to insert the word "personal." If I were to hold that the word "personal" applied only to his "property" and not to his "estate," I must introduce something between the words "property' and "estate," and read it thus:-"the whole of my personal property and the whole of my estate and effects". I am of opinion that this is a gift of personal property and estate only, and that the real estate does not pass thereby (g). (a) 1 Cox, 362. (b) 9 Adol. & E. 719. (c) 3 Ell. & Bl. 572. (d) 1 Coll. 74. (e) 5 Madd. 38. (f) 23 Beav. 571. " Mr. (g) See Coard v. Holderness, 20 Beav. 147; Woollum v. Kenworthy, 9 Ves. 143. 1866. BELANEY 1. BELANEY. 1866. BELANEY v. BELANEY. Mr. Bevir, contrà, on the second point. The term did not pass to the widow; it is not merged, but it has become consolidated and passed with the inheritance. The testator was owner in fee, and could not be called his own lessee, so as to pay his own rent to himself, and there was no object in keeping the term and inheritance separate. The rule, as laid down in Sugden's Vendors (a), shews that this term attended the inheritance; Dowse v. Percival (b); Tiffin v. Tiffin (c); Attorney-General v. Sands (d); Cooke v. Cooke (e); Capel v. Girdler (f); Goodright v. Searle (g). If the testator had died intestate, his widow would have been entitled to dower. The term was virtually consolidated with the fee, and descended with it on the Defendant. The MASTER of the ROLLS. I do not dispute or doubt the authority of any of the cases cited, but I think they do not apply to this particular case. They determine that when a legal term is vested in a trustee for the person entitled to the inheritance, such person is entitled to call on the trustee to assign this term to him, and this testator might have done so. Here the testator has taken care to preserve it as a term in gross, by having the fee conveyed to a trustee expressly in order that the term may not merge. There is no question that this term is personal estate, and the testator bequeaths the whole of his personal estate to his wife. This being personal estate at law, (a) Vol. 3, p. 87 (10th edit.) (c) Ibid. 1. (d) 3 Chanc. Rep. 33. (e) 2 Atk. 67. (f) 9 Ves. 509. (g) 2 Wil. 29. why If the tes why is it not to pass to her? The equitable doctrine 1866. BELANEY v. BELANEY. NOTE.-The widow appealed, but the case was affirmed on both points by Lord Chelmsford, L.C., 14th January, 1867, 36 L. J. (Chanc.) 265. A Re THE RAILWAY FINANCE COMPANY · (LIMITED). PETITION had been presented by a creditor to wind up this company, but, before it had been heard, the Petitioner obtained ex parte an the appointment of a Provisional Liquidator. order for Mr. Southgate and Mr. Cottrell, for the company, now applied to discharge the order, contending that it was irregular to appoint a liquidator until an order had been made to wind up the company; see 25 & 26 Vict. c. 89, s. 92. Mr. Swanston, contrà. May 24, 28. An order for the appoint ment of an Official Liqui dator, obtained er parte before an order to wind up the company had been made, discharged. The 1866. Re THE RAILWAY FINANCE CO. (LIMITED). The MASTER of the ROLLS. I never appoint a Provisional Liquidator until it appears that the company must be wound up. I must discharge the order. June 5. A testator de vised to each of his four daughters a house and garden at G., to be built at the expense THE EDWARDES v. JONES. (No. 2.) HE testator, by his will dated in 1835, gave as "Also I give, devise and bequeath unto each of my daughters Mary Ann, Sarah, Eliza and Margaretta and their heirs and assigns for ever a house and garden of his executors. A in the village of Gwynfil, free of rent, if they feel indaughter, M., requiring the clined to live in the said village, but not otherwise, house, one was which house or houses is or are to be built at the built with a garden by D., expense of my executors." the executor, who was also residuary legatee and devisee: Held, after the death of D., that the gift was not void, and that M. was entitled to the house and garden. The testator died in 1835. After the testator's death, his daughter Margaretta and her husband requested his son Daniel (who was residuary devisee and legatee and also executor) to build a dwelling-house on some part of the testator's real estate in the village of Gwynfil, and he accordingly, in 1841-2, erected a house on the testator's estate, which was called "Tymelin." Daniel Lewis died in 1851, and Margaretta and her husband took possession of " Tymelin" (as they said) in 1851, but they went to reside in it in 1861. They now claimed to be entitled to "Tymelin." The The Chief Clerk considered the devise void for uncertainty, and that "Tymelin" formed part of the testator's residuary estate. This was a motion to vary the certificate. Mr. Chitty for Margaretta. It is said that this gift is void for uncertainty, but the rule of law is this :-id certum est quod certum reddi potest. If the gift had been considered invalid, no inquiry would have been directed by the Court at the hearing of the cause. Time is no bar, for no period is mentioned within which the option is to be exercised; and it is not an immediate devise, but was to operate when the daughter "felt inclined to live in the said village." He cited Grace Marshall's Case (a); Hobson v. Blackburn (b); Jacques v. Chambers (c); Wood v. Drew (d); Duckmanton v. Duckmanton (e); Jarman on Wills (f); Coke Litt. (g). Mr. Everitt, contrà, argued that the gift was too indefinite and was void for uncertainty, for the size and nature of the house and extent of the garden were undefined. Secondly, that the claim was barred by the Statute of Limitations. He referred to Jones v. Hancock (h); Jarman on Wills (i). The MASTER of the ROLLS. I think Margaretta is entitled to have the certificate varied. The meaning of this devise is, that any of the daughters, (a) Dyer, 281 a. (f) Vol. 1, p. 335 (3rd edit.) (i) Vol. 1, p. 207. 1866. EDWARDES v. JONES. (No. 2.) |