In re FLUKER. 1855. Jan. 28, 29. 1855. Feb. 8. 1855. March 3, 5. Rolls Court. ROMILLY, [147] THE MASTER OF THE ROLLS: I cannot accede to this motion. It would work injustice in many cases, if it were held that a client cannot obtain an order of course to tax his solicitor's bill, if any of the items happen to be included in an existing order to tax in a suit. What would be the result? How is the client to get his papers? There may be additional costs not included in the decree, and is the client to wait until all the costs have been taxed in the suit? Mr. Fluker is no longer the solicitor in the cause, and cannot prosecute the decree himself, except by a special application; it must be done by the existing solicitor, although Mr. Fluker will be entitled to the amount of the plaintiff's costs when ascertained. There may be considerable inconvenience in having two bills of costs and two orders to tax, and I strongly advise the parties to come to some arrangement to obviate it. I must, however, refuse the motion with costs. COX v. TOOLE. An equitable mortgagee was formerly only entitled to a decree for foreclosure, and not to a sale. IN RE BEVAN. (20 Beav. 146-147.) Costs of a journey to Paris to obtain the execution of a deed disallowed, beyond the expense of doing it through an agent. COARD v. HOLDERNESS (1). (20 Beav. 147-156; S. C. 24 L. J. Ch. 388; 1 Jur. N. S. 316; 3 W. R. 311.) The testator gave all estate, effects and property, whatsoever and wheresoever," which he was or might be possessed of or entitled to " to his three executors, their executors and administrators," upon trust to stand possessed thereof, and the proceeds thereof, upon certain trusts for children and grandchildren: Held, that this, by itself, would pass real estate, but, upon the subsequent expressions, and the general scope and object of the will, the contrary was held. The COURT, in this case, principally relied on the absence of the words "heirs," ""devise" and "rent," and the use of the expressions "possession," balance," "executors and administrators," "principal," the the principal of the said legacies," the direction to claim a share from "his personal representatives," and the power to appoint new trustees, applicable to "executors" and not to " heirs." LAZARUS HOLDERNESS, by his will, dated in February, 1851, appointed his son Henry Holderness, C. W. Coard and P. A. Coard, executors thereof, and bequeathed four legacies, and then proceeded thus: "And, subject to the said four legacies, I give, (1) Distinguished, Lloyd v. Lloyd (1869) L. R. 7 Eq. 458; and see Prescott v. Barker (1874) L. R. 9 Ch. 174, 43 L. J. Ch. 498, 30 L. T. 149; Kirby COARD v. [ *148 ] bequeath and dispose of all estate, effects and property, whatsoever and wheresoever, which I am now or shall at the time of my HOLDERNESS. decease be possessed of or entitled to, at law or in equity, or over which I have any right or power of disposition, unto my son Henry Holderness and C. W. Coard and P. A. Coard, their executors and administrators, upon trust to stand possessed thereof, and of the proceeds thereof, upon the trusts following, that is to say: I direct the same to be divided into five equal parts or shares, and, as to one of such equal fifth parts or shares, upon trust to pay the income thereof, accruing from my decease, to my eldest son Lazarus George Holderness, during his life; and from and after his decease, upon trust, as to the principal, for all and every of his children and child who shall attain the age of twenty-one years," as tenants in common. And he gave the trustees a power of maintenance out of the income. of the shares and of advancement to the extent of half "the presumptive share." But in case no child should live to acquire a vested interest, there was a gift over of "such principal." The testator then gave the other four-fifths upon like trusts for his sons Henry and William, and his daughters Mrs. Langdon and Mrs. Porter, and their respective children, in similar language applicable only to personalty as in the gift to Lazarus George. As to the second share, for instance, he directed 1,000l. 31l. per cent., or its value, to be deducted thereout, and gave the "balance" to another son; and throughout the whole, he spoke of "the original parts or shares or legacies." And as to the fifth share he proceeded as follows: "And as to the other or remaining one of such equal fifth parts or shares, upon trust for, and I bequeath the same to, my son William Holderness, if living at my decease (who has been for many years absent and not heard of), but upon this express condition: namely, that he the said William Holderness, if living at my decease, do, within seven years from the day of my decease, personally claim the same from my executors or the survivors or survivor of them, or the executors or administrators of such survivor, or other my legal personal representative for the time being, at the Royal Exchange, in the city of London, in the presence of two witnesses; and if he shall not so claim the same within the period aforesaid," then his share was to be in trust for the other four branches of his family. And he directed, "that the said fifth part of his estate, effects and property, intended" for William should, in the meanwhile, "be accumulated in the way of compound interest." There was a power for the trustees, or the *last acting trustee, "or his executors or administrators," to [ *149 ] appoint new trustees, in case the trustees, "their executors or administrators," should die or desire to be discharged, &c. &c. COARD v. HOLDERNESS. [ 151 J The testator had real and personal estate, both at the date of his will and at his decease. On the death of the testator, his son Lazarus George Holderness, as his heir-at-law, claimed to be entitled to the real estate, on the ground that the testator died intestate as to it. The plaintiff, a granddaughter of the testator, instituted this suit to establish the will and have the rights of all parties determined. Mr. Lloyd and Mr. Prendergast, for the plaintiff : The general words of description of the property are quite sufficient to include real estate, and the effect of them is not cut down by any apparent intention in this will to limit them to personal estate, or by any subsequent expressions contained in it. [They cited Tilley v. Simpson (1), Doe d. Spearing v. Buckner (2), Doe d. Hurrell v. Hurrell (3), Saumarez v. Saumarez (4), Doe d. Morgan v. Morgan (5), Doe d. Hick v. Dring (6), and other cases.] Mr. Roupell and Mr. Doria, for defendants in the same interest, [cited Doe d. Wall v. Langlands (7), Noel v. Hoy (8), Thomas v. Phelps (9), Sanderson v. Dobson (10), Jongsma v. Jongsma (11), and other cases]. Mr. R. Palmer and Mr. Sidney Smith, for the heir-at-law: The real question is, whether the scheme of the will and the intention of the testator do not exclude the real estate. The gift is to the three executors, their executors and administrators, and not to their heirs, "upon trust to stand possessed thereof and of the proceeds thereof," on certain trusts, of which a long series is declared. Then he gives W. E. Holderness his share, if in seven years he claims it from "his legal personal representatives," and in the meantime he directs it to be accumulated till he comes to claim. This, with the effect of the other words, " effects," "legacies," "executors and administrators" of the trustees, show, that he only contemplated personal estate. (They cited Church. v. Mundy (12), Woollam v. Kenworthy (13), Doe d. Bunny v. Rout (14).) Mr. Lloyd, in reply: proceeds" in one place, and "income" in (8) 21 R. R. 271 (5 Madd. 38). (9) 28 R. R. 120 (4 Russ. 348). (10) 76 R. R. 185 (10 Beav. 478). (11) 1 R. R. 577, n. (1 Cox, 362). (12) 15 Ves. 396. See note post, p. 382. (13) 9 Ves. 137. See note post, p. 382. (14) 17 R. R. 448 (7 Taunt. 79). another, he therefore must be understood as referring to a sale of the real estate. (Meeds v. Wood (1) was also referred to.) THE MASTER OF THE ROLLS: This case has been fully argued, and as I have had *an opportunity of considering it, I will express my opinion at once. Though I have striven to come to an opposite conclusion, this bequest does not, in my opinion, include the real estate. I have striven, because the Court is naturally anxious to arrive at such a conclusion as will not lead to an intestacy. On the whole view of this case, I am of opinion that the real estate is not included in the words used by the testator. There can be no question that the first words, taken alone, are sufficient to include the real estate: they are, "all estate, effects and property, &c.,... power of disposition." No words can be larger than these, and I have not the slightest doubt that these words are sufficient to include. real estate. I am then of opinion, that the burden of proof is thrown upon the heir-at-law, to show that these words are, according to the settled rules of construction, to be cut down so as to include. personal estate only. I think that the rest of the will does justify the COURT in coming to the conclusion, that these words were intended to be confined to personal estate. The view I take of this case is this: that these words are to be construed with due regard to the general scope and object of the testator, and that, for this purpose, the whole will must be looked at together. Now, the first peculiarity to be observed is this: that there is not, upon the face of the will, a single expression which refers particularly or peculiarly to the real estate. The word "heir " is not to be found in it, nor are the words, "devise" or "rent; " there is nothing which points exclusively to real estate, although there are one or two expressions which are ambiguous. The reason on which my opinion is founded is very much the same as that in the case of Doe d. Spearing v. Buckner (2), because *all the subsequent expressions are referable to personal estate. In the first place, having used these general words which I have stated, the testator gives the property to two persons, "their executors and administrators," without giving an estate of inheritance in the real estate. He does not use words properly applicable to a gift of real estate in fee. The trustees are directed to stand "possessed thereof " upon trust to divide the same into five parts, and pay the "income" of one part to his son Lazarus for life, and as to the "principal" upon trust for his children. The word "principal" has exclusive reference to per(1) 105 R. R. 123 (19 Beav. 215). (2) 3 R. R. 278 (6 T. R. 610). COARD 2. HOLDERNESS. [ *152 ] [ *153 ] COARD ?'. HOLDERNESS. [*154 ] sonal estate. With respect to the next one-fifth, he directs that 1,000l. stock, or its value, shall be taken thereout, and he gives 'the balance" to another son. As to the third share, he directs. "the income" to be paid to his daughter, and on her death "in trust as to the principal of the said legacies," (still speaking of it as "principal of the legacy,") for her children. He does the same as to the fourth share. As to the fifth share, he gives it to his son, on condition of his personally claiming it within seven years from the testator's "executors, or the survivors or survivor of them, or the executors or administrators of such survivor or other his personal representatives for the time being,"-excluding the notion that there would be anything vested in the heir of the surviving trustee. He directs "that the said fifth part of his estate and effects and property" intended for his son William, (thus using the same words, "estate, effects, and property," which he had before used,) should" be accumulated in the way of compound interest." In the direction for the appointment of new trustees, the word "heir " does not occur, but he speaks throughout of the trustees, and their or his "executors and administrators," *evidently contemplating their duties to extend over personal estate only. What is confirmatory of this is, that in the early part of the will he gives legacies and says, subject to the said four legacies, "I give, bequeath, and dispose of all estate," &c. It would be difficult to say that this would be a charge of the legacies on the real estate, and yet he seems to be disposing of something out of which the legacies are payable; this is confirmatory of the view I have taken. Again, he directs another legacy, in a certain event, to fall "into the residue of my estate,"-words still applicable to personal estate, into which the legacy would naturally fall. All these observations appear to me to confirm the same view, that all the limitations seem applicable to personal estate. The word " proceeds" is the only word which is ambiguous. Now, what are the authorities which should compel me to come to a contrary conclusion? In Woollam v. Kenworthy (1), the COURT did proceed upon the context of the will, and upon the general form and scheme as demonstrating the intention. Church v. Mundy (2) does not appear to militate against this construction in any respect. In that case there was a general gift of "all such worldly estate and effects as it may please God to bless me withal, whether real or personal," using the word "real." There was no question that this would pass freehold estate, but the question was this whether, assuming he had no freehold estate, a reversion in (1) 9 Ves. 137. This case was other will.-O. A. S. decided upon the special context of a will which could have no useful application to the construction of any (2) 15 Ves. 396. See now the Wills Act, s. 26, which seems to cover this case.-O. A. S. |