and investment of the same in manner therein directed, to pay the interest, dividends and annual proceeds arising therefrom to his wife for life, she maintaining, educating and bringing up their only child, Maria Gritton, until she attained twenty-one or marriage; and after the decease of his wife, he gave and devised all his real and personal estate to his daughter, Maria Gritton, for ever, absolutely. The testator then made certain provisions for the maintenance and education of his daughter, in case his wife should die before she attained twenty-one or married, and continued as follows: "I hereby expressly direct, that the principal monies, rents, issues, profits, interest, dividends and proceeds, to which my said wife and daughter, or either of them, shall be entitled under my will, shall be paid into their own proper hands as and when the same respectively shall become due, and not by way of anticipation, and shall be to and for the separate use and benefit of my said wife and daughter, independently and exclusively of any husband or husbands with whom they or either of them may happen to intermarry, and without being in anywise subject to the debts, engagements and control, interference or forfeiture of any such husbands or husband, and for which monies, rents, issues, profits, interest, dividends or proceeds, the receipts alone of my said wife and daughter, whether they respectively be covert or sole, shall be an effectual discharge to my trustees for the said monies, rents, issues, profits, interest, dividends and proceeds, or so much thereof as shall therein be acknowledged to be received. And I further declare that my said wife and daughter, or either of them, shall not have the power to deprive themselves or herself of the personal receipt or benefit of the said monies, rents, issues, profits, interest, dividends or proceeds, or any part thereof, by sale, mortgage, charge or otherwise, in the way of anticipation." In 1846 the testator's widow married the defendant Samuel Partridge; and in 1850 the testator's daughter married the defendant George Boughey. No settlement was made upon either marriage. Mrs. Boughey, the daughter, shortly before her death, in July, 1852, made her will, and thereby (subject to her debts and a legacy of 2001. to her husband) gave and devised all her real property to which she was entitled under her father's will, and over which she had any disposing power, subject to her mother's life interest, to her husband, her step-father and the plaintiff, upon trust as to a moiety for her husband in fee, provided he should survive her mother, but if not, to her mother in fee; and as to the other moiety, for her step-father, Samuel Partridge, during his life, with remainders over. Elizabeth Partridge, the mother, died in June, 1858. The question then arose as to the power of Maria Boughey to dispose of the fee by will during her coverture, and the present suit was instituted to administer the estate of John Gritton, the testator, under the direction of the Court. Mr. Fischer, for the surviving trustee of the will, submitted the case to the Court. Mr. Baily and Mr. Smart, for George Boughey, contended that the gift to the separate use of the daughter comprised the corpus of the real estate, and that the same passed by the devise in her will, as if she had been a feme sole, upon the authority of Taylor v. Meads, 34 Law J. Rep. (N.S.) Mr. Shapter and Mr. Batten, for the heir-at-law, were not called upon. KINDERSLEY, V.C.-I admit that whatever be my view of the correctness of the decision in Taylor v. Meads, which is the first of its kind, I should be bound to follow that authority in the present case, if I could come to the conclusion that under the terms of the will the corpus of the real estate was settled to the separate use of the testator's daughter. But it appears to me that not any of the words used by the testator can be construed as limiting the fee to her separate use. The testator directs that "the principal monies, rents, issues, profits, interest, dividends and proceeds, to which his said daughter (I omit the words referring to his wife, as there is no question on that point) should be entitled under his will, should be paid into her own proper hands as the same should become due, and not by way of anticipation, and should be for the separate use and benefit of his said daughter, exclusively of any husband with whom she might intermarry, and for which money the receipt alone of his said daughter, whether covert or sole, should be an effectual discharge." It is clear, from the language here used, that he meant something which was to take effect as a money payment; the words "principal monies," "rents," "issues," "profits," "interest," "dividends" and " proceeds," are all applicable to a life interest, but not to the fee simple. So also the expressions "paying into her hands," and "giving receipts," could only be applied to the daughter during her lifetime. How could a receipt be given for a fee simple? And the receipt is to be given by the daughter alone; no mention is made of heirs or assigns. It appears to me that there is not one word in that clause of the will upon which an argument as to the gift of the corpus or fee to the separate use can be fairly maintained; and therefore it is not necessary for me to consider the question further. Solicitors-Mr. T. Rogers, agent for Messrs. Llewellyn & Hilditch, Tunstall, for surviving trustee of the will and the heir-at-law; Messrs. Lewis & Sons, agents for Mr. T. Cooper, Congleton, for Mr. G. Boughey; Messrs. Clowes & Hickley, agents for Messrs. Keary & Sheppard, Stoke-upon-Trent, for defendants. She had by him five children in all, viz., Harriet, born in 1798, afterwards the wife of Charles Sorby; Sarah, born in 1801, afterwards the wife of Thomas Burgin; John Monsford M., born in 1805; Hannah, born in 1813, afterwards the wife of Samuel Bagshaw, who was now dead; and Henry M, who was born in 1815, and died in 1854. The testator's widow died in 1848. In 1857 a bill was filed by John Monsford M, Charles Sorby and Harriet his wife, and Sarah Burgin, against the trustees of the will and Samuel Bagshaw and Hannah his wife, praying a declaration that the plaintiffs were entitled to three-fifths of the residue, subject to the life and contingent interests then subsisting therein. The bill was dismissed without costs (1). The present bill was filed by the now acting trustees of the will, for a distribution of the estate under the direction of the Court. The chief clerk certified that the whole residuary estate went to the two legitimate children of R. M. A summons to vary the certificate was taken out by a person representing the testator's next-of kin. Mr. Rolt and Mr. E. R. Turner, in support of the summons.-It is clear that the testator, when using the words “sons and daughters," intended them to have their natural, not their legal signification, and considered them as applicable to all the physical offspring of his sister R. M. Under this term he intended to include some of the illegitimate children, but he has omitted to tell us who or how many, and therefore the whole gift is void for uncertainty. The case is different from Illingworth v. Cooke, 9 Hare, 37; s. c. 20 Law J. Rep. (N.S.) Chanc. 512, where there was a gift to "all my grandchildren, with the exception of one, viz., ," and the incomplete exception was struck out. Jerningham v Herbert, 4 Russ. 388. This view is supported by the analogy of appointments to a class generally, consisting (1) Mason v. Bateson, 26 Beav. 404; s. c. 28 Law J. Rep. (N.S.) Chanc. 391. of persons who are and persons who are not objects Routledge v. Dorril, 2 Ves. jun. 357. In re Brown's Trust, 1 Law Rep. Eq. 74. [Brown v. Higgs, 4 Ves. 708; s. c. 5 lbid. 495; 8 Ibid. 561. was also referred to.] The next-of-kin are therefore entitled under a partial intestacy. They were not parties to the prior suit of Mason v. Bateson, and are therefore not bound by anything that was thrown out in the course of it. Mr. Amphlett and Mr. Owen, for Hannah Bagshaw, the eldest legitimate child. Mr. A. E. Miller, for some of the legitimate children. Mr. W. M. James and Mr. C. Hall, for the plaintiff. Mr. C. C. Barber, for an incumbrancer. WOOD, V.C.-I think the present case is distinguishable from those cases in which a testator fails to complete the definition of the class which he intends to benefit. If the class is completely defined, but the testator has an inchoate intention of putting in certain persons as additional members of that class, as, for instance, if he should say, "including such persons as I shall name in a codicil," then if he fails to carry out his inchoate intention,-if in the case supposed he should name no one in a codicil, the primary gift takes effect wholly in favour of the designated class. So also if, as in Illingworth v. Cooke, he is thinking of striking out a member from the class, but fails to do so. Greig v. Martin falls under the first-mentioned cases. There the bequest was "Unto and among my nephews and nieces, the said John Parker and Nanny Parker, -"; so that the entire gift was incomplete:-the testator meditated a gift to a number of persons, and did not complete the enumeration. Here, on the contrary, he meditates increasing a class, but does not do it. In Jerningham v. Herbert the gift rested wholly on future acts, which were never performed. I must therefore disallow the summons to vary. Solicitors-Messrs. Gregory & Rowcliffes, agents for Mr. F. Frodsham, Liverpool, for plaintiff; Messrs. Few & Co., agents for Messrs. W. & B. Wake, Sheffield, for defendants; Messrs. Duncan & Murton, agents for Messrs. Tyas & Harrison, Barnsley, for parties having liberty to attend. NEW SERIES, 35.-CHANC. Practice-Bill-Dismissal for Want of Prosecution-Interrogatories for Examination of Plaintiff. A defendant may dismiss a bill for want of prosecution, although he has filed interrogatories for the examination of the plaintiff, the time for answering which has not yet expired. This was a motion to dismiss for want of prosecution. The motion first became competent to the defendants on the 24th of January, 1866, under the Consolidated Order XXXIII. r. 10. art. 1. On the 23rd of December, 1865, the defendants filed a concise statement and interrogatories, of a minute and searching character, for the examination of the plaintiffs. The time for answering had been twice enlarged on the plaintiffs' application, and had not expired at the time the motion was made. Mr. Willcock and Mr. Phear, for the motion. Mr. E. K. Karslake, for the plaintiffs.The defendants' right to dismiss for want of prosecution is suspended until we have put in our answer to their interrogatories. We ought to be allowed to amend our bill, if so advised, after putting in our answer; and if necessary, I ask for special leave to do so within two days after the time for putting in our answer expires. WOOD, V.C. held that the defendants' right to move to have the bill dismissed in case the plaintiff failed to prosecute his suit with diligence, was not affected by the steps they had taken with a view to their defence. The common order would be made, and the plaintiffs must pay the costs of the motion. Solicitors-Messrs. Bell, Steward & Lloyd, agents for Mr. Edmund Carlyon, St. Austell, for plaintiffs; Mr. Thomas Gill, jun., for defendants. 5 P Specific Performance Payment into Court-Possession under Prior Title. The purchasers of a mining property, subject to leases, were in possession of part as lessees, and of part under an agreement with the lessees, and were working and disposing of the minerals, but they had paid no rent since the time when, according to the agreement, possession was to be given. Upon motion, after answer, in a suit for specific performance by the vendors, for payment into court of the balance of the purchasemoney-Held, that the defendants could only be required to pay into court the rent in arrear. By an agreement, dated the 27th of July, 1864, the plaintiffs agreed to sell and the defendants to purchase the reversion in fee of a mining property in Yorkshire, which comprised some cottages, with gardens and adjoining premises. The estate was at that time subject to three leases: the first, a lease created by an indenture dated the 13th of May, 1851, whereby a seam of coal, called the Middleton Main bed, with the usual powers for mining and working, was demised to Edwin Bray and three of the four defendants, for a term of twenty years, at a minimum rent of 2361. a year, payable half-yearly, on the first Monday in March and the first Monday in September; the second, a lease created by an indenture dated the 1st of November, 1853, whereby a seam known as the Brown Metal Bed was demised, with the usual powers, to Robert Midgley, for a term of twenty-five years, at a minimum rent of 1807. a year, payable half-yearly, on the 1st of May and the 1st of November; the third, a lease created by an indenture dated the 1st of January, 1857, whereby the cottages and premises were demised to Henry Helliwell for a term of ten years, at a rent of 1107., payable half-yearly, on the 13th of May and the 13th of November. The lessees under the first lease were working and disposing of the coal. The agreement required an immediate deposit of 10. per cent. of the purchasemoney, and provided that the residueshould be paid on the 16th of November. The purchasers were to be let into possession on receipt of the rents and profits, as follows: Of the Middleton Main Bed from the 5th of September, 1864, the first Monday of that month; of the Brown Metal Bed from the 1st of November, 1864; and of the cottages and premises from the 13th of November, 1864. The defendants obtained possession of the property demised to Henry Helliwell under an arrangement with him, and no rent had been paid to the vendors under any of the three leases since the second rent-days in 1864. The defendants had accepted the title, and had forwarded for the plaintiffs' perusal a draft conveyance of the property to three of the four defendants, which the plaintiffs approved of, subject to the consent of the remaining defendant being obtained. The bill praying specific performance was filed on the 29th of November, 1865, and the answer had been put in. The defendants had paid the deposit of 107. per cent., and a further sum of 500l. on ac count. Mr. J. Pearson, for the plaintiffs, moved that the defendants should pay the residue of the purchase-money into court within ten days Walters v. Upton, G. Coop. 92, n. Mr. E. K. Karslake, for the defendants, contra.-The defendants are in possession not under the contract but under a paramount title, as to one part under their own lease, as to another part under an agreement with the lessees. Under such circumstances an order to pay into court will not be made Freebody v. Perry, G. Coop. 91. Bonner v. Johnston, 1 Mer. 366. Sugd. Vend. & Pur. (13th edit.) 194. Mr. J. Pearson, in reply.-The possession is referable to the contract, for you have here a specific agreement that the purchasers shall have possession from given days, and the only mode of putting them in possession was by not demanding rent. According to the defendants' contention, we ought to have sued for their rent at law, under the certainty of being restrained by injunction. Mr. E. K. Karslake, in answer to his Honour's inquiry, said the defendants were willing to pay the rents in arrear into Court. WOOD, V.C.-If the possession here were referable to the contract, the money would clearly have to be paid into court, but the defendants are not working under the contract, for that affects the reversion only. They are working as lessees, or under an arrangement with lessees. They have, however, paid no rent, and if an action were brought against them, they might move to restrain it. As the defendants are working the coal, and thus wearing out the property, I think that the proper order will be that the defendants do within three weeks pay into court the arrears payable in respect of the property comprised in the agreement from the time when they were to have possession under the agreement, the amount to be verified by affidavit. Costs to be costs in the cause. Land Transfer Act (25 & 26 Vict. c. 53.)-Registration of Title-Equitable Charge-Appeal from Registrar-Practice. Where an owner of land, who sought to have it registered with an indefeasible title, had by deed entered into a personal covenant with the owner of adjoining lands to make and repair a certain road, and in the same deed there followed a proviso that the costs of the road should be considered "a charge in equity (and, as far as circumstances would admit, at law also) upon the owners of the land" sought to be registered:-Held, that this did not constitute such a charge as would be entered on the register of title. The practice with regard to appeals from the Land Registry Office is for the Court to proceed on a certified statement of the Registrar. This was an appeal from a decision of the Registrar of the Land Registry Office, who had refused to enter on the record of title of certain land sought to be registered with an indefeasible title any notice of a proviso in a deed which as the appellant alleged constituted an equitable charge on the land. By an indenture, dated the 3rd of August, 1863, and made between G. H. Drew and the appellant, Henry Mason, after reciting that Drew had sold to Mason two lots of land, numbered 71 and 72, out of several lots, numbered 71 to 77 inclusive on the annexed plan, Drew covenanted with Mason to make a road abutting upon the same lots, and to keep it in repair until it should be taken to and repaired by the parish, Mason in the mean time paying a proportionate part of the costs of such repairs; and then followed a proviso that, in addition to the covenant thereinbefore contained, it was intended that the costs and expenses of the proposed road should be considered "a charge in equity (and, as far as circumstances would admit, at law also) upon the owners, for the time being, of the several closes or pieces of land," numbered 71 to 77 inclusive in the plan annexed, to such an extent as that each such owner should be chargeable with such a part of the costs and expenses of such repairs as should bear the same proportion to the whole of the costs and expenses as the quantity of his land should bear to the aggregate quantity of all the said closes or pieces of land. In 1865 Drew applied to the Land Registry Office for the registration of the lots of land remaining in his hands unsold, with an indefeasible title. Mason, having notice of this application, claimed to have a notice of the above proviso entered on the register of title, on the ground that it constituted a charge in equity upon Drew's land. The Registrar refused to make any such entry, and thereupon Mason applied to this Court by way of appeal. Upon the matter first being brought before his Lordship, he had felt a difficulty in the application being made ex parte, and had directed that the matter should be mentioned to the Lord Chancellor. This had been done, and the Lord Chancellor, following the case of |