NORMAN then arose, who were entitled to the moiety of residue given to KYNASTON. Captain Richard Norman, which was in Court in this suit, a v. [ 31 ] decree in which had been made in 1798. The next of kin of the testatrix claimed it as undisposed of; the children of Thomas Kynaston claimed it on the ground that the whole residue was given to the children of Richard Norman and Thomas Kynaston per capita as one class; and the personal representatives of Richard Norman claimed it on the ground that the absolute gift to him by the will had only been modified by the codicil for a purpose which had failed, and, therefore, in the events which had happened, remained unaffected. The MASTER OF THE ROLLS decided (1) that the personal representatives of Richard Norman were entitled to his moiety of the residue, and from this decision the next of kin of the testatrix appealed. Mr. Lloyd and Mr. Waley for the appellants: We contend that the disposition of the codicil is substitutionary *for the gift in the will, and if not, it must be read as affixing a trust upon the gift in the will. Captain Norman under the two instruments read together merely took as a trustee for his children, and there being no children to take there is an intestacy as to a moiety of the residue. (King v. Denison (2), Kidd v. North (3), and Cookson v. Hancock (4), were referred to.) Mr. Druce, for the children of Thomas Kynaston, referred to Smith v. Streat field (5), and claimed the whole fund. Mr. W. P. Murray, for the personal representatives of A codicil is not to be held to revoke a will further than is necessary to give effect to the purposes appearing on the face of the codicil, and so far as those purposes fail the original gift remains: Doe v. Hicks (6), Duffield v. Duffield (7). Here the codici modifies the gift for the purpose of providing for the children, so far as that purpose fails we are thrown back upon the will. Now the will gave an absolute interest, the appointment of trustees not being enough to do away with the absolute gift which is clearly expressed in the first clause: Mayer v. Townsend (8), Lassence v. Tierney (9), Hulme v. Hulme (10). Under the terms of the codicil there is a primary division into moieties, so the intention clearly was that the children should (1) 29 Beav. 96. (2) 12 R. R. 227 (1 V. & B. 260). (7) 32 R. R. 70 (3 Bligh, N. S. 261). (8) 52 R. R. 180 (3 Beav. 443). (9) 84 R. R. 158 (1 Mac. & G. 551, 565). (10) 47 R. R. 326 (9 Sim. 644). take per stirpes. The children of Thomas Kynaston, therefore, cannot claim the whole fund. Mr. Lloyd, in reply. THE LORD JUSTICE KNIGht Bruce: I agree with the opinion of the MASTER OF THE ROLLS that an absolute interest was given to Captain Richard Norman by the will, and that if any variation was introduced by the codicil in favour of his children, the original gift was affected only so far as was necessary in order to carry into effect the intention in their favour, and, therefore, as he never had a child, was not in the result affected at all. When I say that an absolute interest was given to Captain Norman by the will, I say so not forgetting that the testatrix appointed trustees whom she directed to pay him his share half-yearly. Whether it was intended by this that they should pay him the interest half-yearly, or that they should pay him the capital from time to time, in either case I think the direction not sufficient to cut down the clearly absolute interest given to him by the preceding clause. The codicil also, for the reason that I have stated, has not in my opinion, in the events which have happened, the effect of defeating that absolute gift. THE LORD JUSTICE TURNER: I also am unable to come to any conclusion different from that of the MASTER OF THE ROLLS. It appears to me that the testatrix did not intend by the codicil to alter the gift made by her will to Captain Richard Norman otherwise than for the benefit of any children he might have. I think that the gift to him by the will was absolute, and that it is conformable to the authorities not to treat the codicil as altering the will any further than is necessary for the purposes of the codicil. CUST v. MIDDLETON. (3 D. F. & J. 33-36.) A testator in his lifetime entered into contracts for leases of parts of his estate for building purposes. The contracts provided for granting separate leases of the houses when built, apportioning the whole ground rent among some of them, and leaving the rest to be demised at a peppercorn rent. He devised the estate in strict settlement, without any power under which the leases could be granted: Held, that the Act for facilitating leases and sales of settled estates could not safely be resorted to for granting these leases, and that application for a private Act of Parliament was the best course for carrying out the testator's contract. [See now the Settled Land Act, 1882, s. 12, as to carrying out contracts made by predecessors in title.-O. A. S.] R.R.-VOL. CXXX. 2 1861. Jan. 18. 1861. Jan. 19. Lord [37] THE SHEERNESS WELL OR WATERWORKS COM- (3 D. F. & J. 36-43; S. C. 30 L. J. Ch. 326; 7 Jur. N. S. 12; 4 L. T. N. S. By the conditions of sale of the property of a Company in the course of being wound up it was stipulated that the purchaser should accept a conveyance from the official manager under the powers of the Winding-up Acts, 1848 and 1849, or one of them, without requiring the concurrence of any of the shareholders or any other person; but that, if the purchaser should consider the legal estate outstanding and should require a conveyance thereof, he should bear the expenses of obtaining such conveyance or conveyances as he might require and all other expenses incident to getting in such legal estate: Held, on the general scope of the conditions, that the purchaser was to be at the risk of getting in the legal estate, and that the vendor was entitled to a specific performance on executing a conveyance of the equitable interest and undertaking, at the expense of the purchaser, to obtain all such conveyances and render all such assistance to the getting in of the legal estate as the purchaser should require and as the vendor was able to obtain or give. THIS was a suit for the specific performance of a contract for the sale of the property of the above-mentioned Company, and the appeal was from the construction put by the MASTER OF THE ROLLS on the 6th of the conditions of sale, under which it had been sold to the defendant (1). The property in question consisted of a piece of land, well and premises, purchased by the Company and conveyed to them in 1829, and it was held by them under their deed of settlement, dated in 1800, for the purpose of supplying the inhabitants of Sheerness with pure water. The capital of the Company was divided into 100 shares, of which the defendant was the owner of five; and by the deed of conveyance to the Company, dated in January, 1829, so many undivided one-hundredth parts of the premises were conveyed to each of the shareholders in the Company as represented the number of shares in the capital held by him. The speculation having proved a losing one, an order to wind up its affairs was obtained in 1857, and in March, 1859, the plaintiff, who had been appointed official manager, acting under the direction of the Court, put up the premises in question for sale by auction in two lots, subject to the following conditions of sale: "5. The purchaser shall, at the time of sale, pay into the hands of the official manager a deposit at the rate of 101. per centum on the amount of his purchase-money, and sign an agreement to pay the remainder of the purchase-money to the official manager at the office of his solicitors, Messrs. Hughes, Hooker and Buttanshaw, No. 1, St. Swithin's Lane, London, on or before (1) 29 Beav. 70. WATERWORKS CO. POLSON. the 6th day of April next, at which time and place the purchase SHEERNESS shall be completed; and the purchaser shall, upon such completion of his purchase, have the actual possession of the property, clear of all outgoings to that day; and if, from any cause, the purchase shall not be completed on that day, the purchaser shall pay interest upon his unpaid purchase-money at the rate of five per centum per *annum from that day until completion, or until resale under the last condition. "6. The vendor is, within seven days after the sale, to deliver to the purchaser, or his or her solicitor, an abstract of title, commencing with indentures of lease and release, dated respectively the 1st and 2nd days of January, 1829; and the purchaser shall not require the production of any prior documents, although the same may be covenanted to be produced in the said indenture of release. The vendor will also deliver to the purchaser an abstract of the several documents affecting the respective shares into which the said Company is divided, but he shall nevertheless accept a conveyance of the entire property from the official manager of the said Company under the powers contained in the Joint-stock Companies Winding-up Acts, 1848 and 1849, or one of them, without requiring the concurrence of any of the shareholders or any other person for any purpose whatsoever; and the purchaser shall require no other covenant for title than a covenant by the official manager that he has done no act to incumber. If the purchaser shall consider the legal estate in the whole or any part of the property to be outstanding, and shall require a conveyance thereof, he shall bear the expenses of obtaining all such conveyance or conveyances as he may require, and all other expenses in any manner incidental to the getting in of such legal estate, and of all proceedings relative thereto. A copy of the abstract of title may be seen on application at the office of the said Messrs. Hughes, Hooker and Buttanshaw seven days previously to the sale. 7. The purchaser is to bear all expense attending the examination of the title-deeds, including travelling expenses, and of the making and obtaining all office, *attested and other copies. of wills, Chancery proceedings, deeds and other documents, whether in the vendor's possession or not; and also of procuring or searching for parochial certificates, statutory declarations and other evidences of title not in the vendor's possession, which may be required by the purchaser for the verification of the abstract or for any other purpose; but no evidence shall be required of any fact or conclusion of law which shall be stated or noticed in any document dated more than twenty years prior to the day of sale. If the purchaser should be desirous of [ *38] [ *39 ] WATERWORKS CO. v. POLSON. SHEERNESS obtaining the production or an abstract of the documents covenanted to be produced in the aforesaid deed of conveyance of the 2nd of January, 1829, the vendor will at his (the purchaser's) expense endeavour to comply with such requisition, but he will not undertake to complete such abstract or to supply any evidence or information in support thereof, nor shall the failure of the vendor to obtain such production or abstract of documents as aforesaid be deemed a valid ground of objection to the title." [ 40 ] [ 41 ] The defendant was declared the purchaser of one lot at 6701., and paid the deposit and signed the agreement to pay the remainder of the purchase-money. In April, 1859, the plaintiff tendered to the defendant for perusal a draft conveyance of the lot purchased by him, to which deed the plaintiff, the defendant, and his dower trustee, were the only parties. The defendant approved of the draft, but refused to complete the purchase, unless the plaintiff would get in the legal estate in the premises contracted to be sold. The plaintiff declined, and filed the bill in this suit for a specific performance of the contract. [The defendant claimed some reasonable assurance that the plaintiff would procure a conveyance of the legal estate to him at his expense within some specified time.] Upon the hearing of the cause the MASTER OF THE ROLLs, by the decree appealed against, ordered a specific performance *of the contract, and payment by the defendant of the purchasemoney, on having a conveyance of the equitable interest in the premises from the plaintiff the plaintiff undertaking to obtain all such conveyance and conveyances as the defendant might require and as he was able to obtain, at the expense of the defendant. The decree to be without costs, the wording of the conditions of sale not being sufficiently clear to prevent all question. Mr. Lloyd, Mr. Selwyn and Mr. Welford for the plaintiff, the appeal being from the whole decree, [contended that the vendor was merely bound to assist the purchaser by endeavouring to obtain the conveyance of any outstanding legal estate which the purchaser might show to be necessary at the purchaser's expense]. Mr. Roundell Palmer and Mr. Dart for the defendant [contended that the stipulation in the sixth condition of sale relates only to the expense of obtaining the legal estate, and did not relieve the vendor of the onus thrown upon him by the law, of finding out where it is and of getting it in, and that as the |