Practice-Conduct of Proceedings-Next Friend-Executor.

In the administration of an estate under a decree made in a suit, where an infant was plaintiff, it became necessary to take hostile proceedings in order to get in the assets:-Held, overruling one of the Vice Chancellors, that in the absence of misconduct on the part of the executor, he was the proper person to have the conduct of the intended suit.

This was an ordinary administration suit, the bill having been filed on the 15th of May, six days after the will of the testatrix in the cause had been proved. The defendant, the executor, took out a summons to extend the time for putting in a voluntary answer, which was dismissed. On the 20th of June the usual decree was taken by consent of all parties.

It became necessary to take proceedings against a Mr. French, for the purpose of setting aside certain deeds executed by the testatrix, as to which counsel's opinion had been given that they were invalid. The facts concerning these deeds were communicated by the executor to the plaintiff's solicitor, whereupon the plaintiff took out a summons for leave to institute proceedings in the name of the executor against French.

The executor objected to this course, contending that he was the proper person to have the conduct of such proceedings, since he would be rendered liable for the costs of them. Vice Chancellor Stuart, however, made an order giving the next friend of the plaintiff leave to institute the intended suit, and directing that the executor should be indemnified out of the estate against any costs; he made the order principally upon the ground that the intention to put in a voluntary answer was improper on the part of the executor. From this order the defendant Richards, the executor, appealed.

Mr. Bacon, Mr. Craig and Mr. C. A. Beavan, for the appellant, contended that he ought not to be rendered liable for the

Hazlerigg v. Robson (4th of June, 1864, unreported).

As to the security, there was a fund of 15,000l. in court belonging to the estate. Mr. Bacon, in reply.

LORD JUSTICE KNIGHT BRUCE. — My doubt has been whether there was any ground to warrant our interference with the discretion of the Vice Chancellor. I think, however, that there is a principle involved in the case. I must say that, by analogy to other cases, I do not see sufficient reason for taking the conduct of these proceedings out of the hands of the executor.

LORD JUSTICE TURNER. -The order which has been made takes the conduct of the proceedings out of the hands of the person legally entitled, and puts it into other hands. The only reason assigned is, that the executor wished to put in a voluntary answer. It seems to me that it would have been convenient if he had done so, because if the Court had been in possession of the facts as to this claim, it would in the decree have given directions concerning it. The executor is the person who has hitherto given all the information, and it is not clear that, if the matter be taken out of his hands and another solicitor employed, all the information which may be material will be given in future. In the absence of misconduct, the executor is the proper person to act. If there had been a rule of the Court, as contended by Mr. Malins, to give the conduct of such proceedings to the persons beneficially entitled, I should not wish to disturb it. But I think that the only rule there is is this, that if the executor refuses to take proceedings, the Court will give the plaintiff

being satisfied with a small amount, because the plaintiff was liable to be forced to pay immediately he should come within the jurisdiction, and the security was merely a surety; whereas, in the present case, the security was the only source to look to for payment of costs in case the plaintiffs should be unsuccessful. The discretion of the Court ought to be exercised in determining the amount of the security. This is the practice at common law

French v. Maule, 4 Man. & G. 107; and in Scotland

Paterson's Compendium of English and
Scotch Law, p. 391.

The point has been decided by Vice Chancellor Wood, before this case, in

The Australian Steam Ship Company v. Fleming, 4 Kay & J. 407; but we ask that that case may be over

When security for costs is granted under section 69. of the Companies Act, 1862, such security will be substantial security, suited to the circumstances of the case; and an inquiry in chambers will be directed to determine the proper amount.

The plaintiffs in this suit were a company now in course of winding up.

On a motion made, by the defendants, before Wood, V.C., under section 69. of the Companies' Act, 1862, that the plaintiffs should give security for costs, his Honour directed that the plaintiffs should procure some sufficient person to give security, according to the course of the Court, by a bond in the penalty of 1007. -see Seton on Decrees, 1269.

The defendants appealed from this order. There was no doubt as to the insufficiency of the assets of the plaintiff company, except so far as depended upon the success of this suit.

Mr. W. M. James and Mr. Eddis, for the appellants, contended that the words "sufficient security" in the 69th section of the act must be taken in their ordinary sense, and not as satisfied by the security which was considered sufficient in the case of a plaintiff who was out of the jurisdiction. There was reason in that case for

Mr. Giffard and Mr. J. N. Higgins contended that the usual course of the Court, where the plaintiff had to give security for costs, was applicable to the case of a company, which was, moreover, ample; the old practice before 1828 being only to give security for 401.

LORD JUSTICE KNIGHT BRUCE.-The legislature must be considered to have had a definite intention in using the word "sufficient," and not merely to refer to the ordinary practice of the Court in exacting a security from a plaintiff. I think that the security should be sufficient in the ordinary sense of the word.

LORD JUSTICE TURNER. This is a special enactment, under a particular state of circumstances, and the ordinary rule cannot apply to it. There must be an inquiry in chambers what amount will be a proper sum; and the order will be that the plaintiffs give security for such an amount. No costs of the appeal.

Will-Construction-Gift over on Legatee dying before actual Receipt.

Testator, after directing that his residuary property should be divided equally between his nephews and nieces, proceeded as follows: "And it is further my will that the property of whatever description, whether real or personal, which by this will I leave to my nephews and nieces, shall, on their decease, severally be divided equally, share and share alike, between such of their children as may survive them; and if either or any of my nephews and nieces should die before me, or before they shall have actually received what is to go to them under this will, that in any and every such case or cases their share shall be divided equally between my surviving nephews and nieces." There were also expressions in the will importing an absolute gift to the nephews and nieces :-Held, that reading the words above cited together, the events on which the testator intended the gift over to take effect were either, first, a nephew or niece dying in his lifetime; or, secondly, a nephew or niece dying after him, but before having actually received his legacy; that the gift over in the latter case was void, and that the nephews and nieces who survived took absolute interests.

This was a SPECIAL CASE.

Josiah Martin duly made and executed his last will and testament, dated the 5th of July, 1842, and thereby appointed his brother Sir Thomas Martin and his nephew Sir Henry Martin executors; and after bequeathing several legacies and making provision for the payment of certain annuities, he disposed of his residuary estate as follows: "It is further my intention and will that all my other property of every

description, whether real or personal, shall be equally divided, share and share alike, between my nephews and nieces, the children of my late brothers Sir Henry and Sir Byam, (except my nephew Sir Henry, the son of my late brother Sir Henry, who has now come into possession of the Green Castle and Rigby estates in the island of Antigua, which I apprehend will never yield him, even under the most unfavourable circumstances, a smaller net income than from 500l. to 8007. sterling per annum, which, with the addition of the share of my property which his wife will be entitled to, will place him in better circumstances than any of my other nephews and nieces; my sole motive in making this exception is, that I may act fairly and impartially to all my nephews and nieces). And it is further my will that the property, of whatever description, whether real or personal, which by this will I leave to my nephews and nieces, shall, on their decease, severally be divided equally, share and share alike, between such of their children as may survive them; and if either or any of my nephews and nieces should die before me, or before they shall have actually received what is to go to them under this will, that in any and every such case or cases their share shall be divided equally between my surviving nephews and nieces; and the several sums of 20,000l., 2001. and 500l. hereby directed to be reserved in the government securities for the purpose of paying the annuities directed to be paid to my sister Lydia Eliza D'Esterre and Mrs. Leeks shall, on their decease, severally follow the same destination as the property bequeathed to my nephews and nieces prior to the decease of the aforesaid annuitants, viz., shall go to my nephews and nieces, in equal shares, and in the same manner as before directed, to such of their children as may survive them."

At the date of the will the Green Castle and Rigby estates stood limited to the testator's nephew Sir Henry for life, with remainder to his children, in strict settlement. In 1843 Sir Henry assigned his life interest to the testator, who, by a codicil, dated the 4th of December, 1845, declared that, in consideration of such assignment, his will was that Sir Henry should stand in the same situation with respect to all

his property as all his other nephews and nieces, viz., that notwithstanding any exception in his will, the said Sir Henry should be entitled, with regard to the testator's property, to share equally with his other nephews.

At the date of the will, the testator had eight nephews and nieces, one of whom died in the testator's lifetime, without having had any children. Seven survived him, three of whom were now dead, one only of them having left children surviving. Of the remaining four, two had, and two had not, children now living.

The following questions were submitted to the Court: First, what interests the testator's nephews and nieces who survived him took under the will? Secondly, what interests the children of such nephews and nieces took?

Mr. E. L. Pemberton, for the plaintiff. The Attorney General (Sir R. Palmer), Mr. Giffard and Mr. T. C. Wright, for a niece of the testator.-The nephews and nieces who survived the testator are absolutely entitled to their respective shares. The direction that the property shall on their decease be divided between such of their children as shall survive them must be read in conjunction with the context in which it occurs; and from the words which immediately follow, it appears that what the testator has in view is the event of the legatees dying, either in his lifetime, or subsequently, without having actually received their legacies. But a gift over in this latter event is disregarded-

In re Arrowsmith's Trusts, 2 De Gex,
F. & J. 474; s. c. 29 Law J. Rep.
(N.S.) Chanc. 774; 30 Law J. Rep.
(N.S.) Chanc. 148.

Hutcheon v. Mannington, 1 Ves. jun. 366.
Stapleton v. Palmer, 4 Bro. C.C. 490.
Holmes v. Godson, 8 De Gex, M. & G.
152; s. c. 25 Law J. Rep. (N.s.)
Chanc. 317.

In re Williams, 12 Beav. 317; s. c. 19

Law J. Rep. (N.S.) Chanc. 46. Jeffreys v. Reynous, 6 Bro. P.C. 398. M'Lachlan v. Taitt, 28 Beav. 407; s. c. 2 De Gex, F. & J. 449; 31 Law J. Rep. (N.S.) Chanc. 276. Hayward v. James, 28 Beav. 523; s. c. 29 Law J. Rep. (N.S.) Chanc. 822.

Mr. Rolt and Mr. Faber, for the children of the nephews and nieces.-If you stop at the words "such of their children as may survive them," the gift is clearly of a life estate only to the nephews and nieces, with remainder to their children. What follows is not equally clear, but it is a sound principle not to modify a clear and distinct gift by subsequent and ambiguous expressions. The subsequent language is, however, capable of an interpretation consistent with the previous gift. The words "actually receive what is to go to them" apply to income, not to corpus, since they would be insensible as applied to the corpus of real estate, and may have been inserted to prevent apportionment. Probably, also, the testator had in view the fund set apart to meet the annuities, and referred to the legatees dying before they actually received the income of that fund, which would eventually go to them, if they lived long enough. It is begging the entire question to say that the words "actually receive" must apply to an absolute interest. They cited Randfield v. Randfield, 8 H.L. Cas. 225;

s. c. 4 Drew, 147; 2 De Gex & J. 57; 30 Law J. Rep. (N.S.) Chanc. 177. The Attorney General, in reply.—The testator shews repeatedly, by the language which he uses, that his first intention is to make an absolute gift to his nephews and nieces.

WOOD, V.C. (June 21.)-In the present case I have felt some doubt as to the application of the rule of construction, that where you find a gift in clear and express terms, you are not to permit subsequent and obscure words to throw a doubt upon the former clear expressions. On a former occasion, when this same will was before me (1), I had to deal with the share of one of these nephews and nieces who survived the testator, and died without leaving children; and I then held,- -a decision which is supported by the cases of Mayer v. Townsend (2) and Campbell v. Brownrigg (3),-that he, at all events, was absolutely entitled to his share. I have now to consider what

interests the nephews and nieces who are not so circumstanced take under this gift.

Now, in the first place, I consider that the first clear gift is to the nephews and nieces absolutely. I do not think it sound in reasoning to take the words which immediately follow those in which the testator directs his other property to be divided equally between his nephews and nieces other than Sir Henry, namely, the words, "And it is further my will that the property of whatever description, whether real or personal, which by this will I leave to my nephews and nieces, shall, on their decease, be equally divided between such of their children as may survive them," -stopping short at this word "them," and to say that they are to be so connected with the preceding set of words as that the two together shall constitute the primary gift. The whole frame of the will shews that the gift which the testator has first in his mind is an absolute gift to his nephews and nieces. For a little further on we find a direction referring to certain events, "that in any and every such case or cases their share shall be equally divided between my surviving nephews and nieces," without any mention of their children. Then you have the form of the direction in the codicil, revoking the exception of the excluded nephew,-not in any way con clusive, but still continuing the attempt to express the same form of bequest as that previously contained in the will, the absolute form. He says then it is his will that that formerly excluded nephew shall stand in the same situation with respect to all his property as all his other nephews and nieces, namely, that he shall share equally with his other nephews. Of course, the words "same situation" are somewhat ambiguous; they might import a limitation to himself and his children; but the meaning is sufficiently explained by the words that follow, "to share equally with his other nephews," again without mentioning children. Therefore, the first primary gift is to the testator's nephews and nieces absolutely.

Then come these words, which create the whole difficulty: "I direct that all my property, whether real or personal, which by this my will I leave to my nephews and nieces" (again terms of absolute gift), "shall, on their decease, severally be divided

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equally, share and share alike, between such of their children as may survive them." Of course it is quite correct to say that this clause, standing there alone, notwithstanding all the expressions importing an absolute gift, would cut down that which before was absolute by way of settling it on the nephew or niece for life, with remainder to their children who might survive them. But I must read on, and I find the sentence continued thus: "And if either or any of my nephews and nieces should die before me, or before they shall have actually received what is to go to them under this will, that in any and every such case or cases their share shall be divided equally, share and share alike, between their children, and in default of children, equally between my surviving nephews and nieces;" again not saying anything about the children of those nephews and nieces. Now these words "actually received" do throw a light which, to my mind, irresistibly shews what the intention of the testator was. It is this: "I give absolutely to my nephews. and nieces they may never receive their shares (I will consider how he puts that more particularly presently); if, therefore, any one fails to receive his share, it is to go over to his or her children, or, if there are none, to the surviving nephews and nieces." The matter presents itself to the testator's mind in two ways: "They may die before me, or, though they survive me, they may die before the shares are paid over to them." I have no doubt that was in his mind; and although the law will not allow the latter disposition to take effect, I quite agree with Mr. Rolt's argument, in which I think the Attorney General concurred, that words which the law will not allow to operate may yet be used to explain the intention of the testator. The intention of the testator seems to have been, that in the event, and only in the event, of his nephews and nieces being out of the way so as not to receive absolutely, then it should go over to their children, or, in default of children, to the surviving nephews and nieces. It is a common impression on testators' minds that the event may occur of death before actual receipt of property given. The law has interfered on account of the extreme difficulty of meeting such a wish. In the