testator's brother William Wallis, and his sister Mary, the wife of Richard Martin, and Jane, the wife of Thomas Turner, and to the survivors or survivor of them, from time to time, in equal shares, the shares of the married women to be for their separate use; and upon the decease of all of them the testator directed his executors to sell and convert into money the said stock and securities, and pay the same as follows: "Unto and amongst my nephews and nieces, the said John Parker and Nanny Parker, or to such of them as shall be living at the time of the decease of all of them, the said William Wallis, Mary Martin, and Jane Turner, as aforesaid, in equal shares and proportions." The words "Nanny Parker" were written in pencil, and were followed by a long blank. The will was duly proved by the executor John Parker alone, on the 22nd August, 1836, and the words "Nanny Parker" were inserted in the probate. The survivor of the tenants for life died in January, 1858, and John Parker and Nanny Parker both. died in the lifetime of that survivor. The question now arose as to who were entitled, upon the true construction of the will, to the testator's residuary estate, and a bill was filed by the female plaintiff, who was one of the nieces and next of kin of the testator, and her husband, against other of his nephews and nieces and next of kin, for the purpose of having the rights of all persons declared. The testator had twelve nephews and nieces besides John Parker and Nanny Parker, living at his death. Elmsley, Q.C., and Pemberton were for the plaintiffs, and submitted that all the testator's nephews and nieces were entitled, [and cited Illingworth v. Cooke (1)]. Malins, Q.C., and Boyle were for other nephews and nieces in the same interest, and they cited Garvey v. Hibbert (2), Lane v. Green (3), Morrison v. Martin (4), Daniell v. Daniell (5), and Manning v. Purcell (6). Cecil Russell, Waller, and Karslake appeared for other defendants in the same interest, and submitted that the Court must fill up the blank with the names of nephews and nieces. not mentioned. Bacon, Q.C., and Berkeley, for the representatives of Nanny Parker, submitted that John Parker and Nanny Parker were entitled to a vested interest, under the will, to the whole (1) 89 R. R. 325 (9 Hare, 57). (2) 12 R. R. 155 (19 Ves. 125). (3) 87 R. R. 372 (4 De G. & Sm. 230). (4) 71 R. R. 211 (5 Hare, 507). (6) 109 R. R. 23 (7 D. M. & G. 55). GREIG ፖ. MARTIN. [330] of the fund. (They referred to the cases of Harrison v. Foreman (1), Sturgess v. Pearson (2), Browne v. Lord Kenyon (3), and Wagstaff v. Crosby (4).) G. Lake Russell, for a representative of one of the next of kin of the testator, argued that it was uncertain who was intended to take, and that therefore there was an intestacy: Francis v. Grover (5). Elmsley, Q.C., replied. Sir J. STUART, V.-C., said there was no doubt very great difficulty in construing this will. The COURT had, however, had great assistance from the argument, because everything had been said that could be said, and more cases had been cited than had any application at all. The case resolved itself into thisthat one of three constructions must be put upon this will. Either the testator intended that all his nephews and nieces should take, or he intended that only that nephew and niece whom he had named in the will should take; or, if it should be impossible, after reading the whole clause and looking at the whole will, to find anything to assist in the construction of it, and enable the Court to ascertain what the testator meant, or who should take, the property must go amongst his next of kin. The first of those constructions, viz. that as to whether all the nephews and nieces should take, was supported unquestionably by the words "nephews and nieces being in the plural number; and it was also supported in a certain degree by the curious construction of the will, so far as regarded the blank which followed the names of John Parker and Nanny Parker. But there the case in favour of all the nephews and nieces taking seemed to end, unless it could be said that the words of gift over, "or of such of them as should be living at the time of decease," might be supposed to indicate a plurality greater than that of two names. To support the construction that all were intended to take, the latter ground was a feeble one; and the only safe ground which could be relied on, that all were to take, was that found in the first words, "unto and amongst my nephews and nieces." The next words, howover, created an insuperable difficulty, because the testator had said, among my nephews and nieces, the said John and Nanny Parker;" and then followed a long blank. Now, it was quite clear that when he named John Parker and Nanny Parker he named two only of his many nephews and nieces. It was quite (1) 5 R. R. 28 (5 Ves. 207). (4) 70 R. R. 389 (2 Coll. 746). certain that they were objects of his bounty; but that being so, how was it possible to arrive at a result that all the rest of his nephews and nieces were also subjects of his bounty, because of the previous words "nephews and nieces" being followed by a blank? What was fatal to that view was this, viz. if the testator had named two more, one nephew and one niece, he would have satisfied all the words of the will. The construction of the will would have been certain, because every word would have had a certain meaning attached to it. If the words nephews and nieces" would be answered by the names of two more out of the twelve, it was impossible to say that all their names ought to be inserted in the will. He could find no warrant for that view of the case. Then, if it were impossible to say with certainty, that of the nephews and nieces all the others (besides the two named) were to take, how was it possible to maintain the construction with any degree of certainty that the testator intended that John and Nanny Parker alone should take? The difficulty occurred on the words which assisted a construction which was in favour of all taking. It was certain the testator meant more than one of each to take, because the words were "nephews and nieces." He said, "unto and amongst my nephews and nieces." To satisfy those words more than one nephew and one niece must take; but the testator gave all to two named, and then left a long blank. It was impossible to say that the testator had made up his mind that one only of each should take, when those words directed a division of the property among his nephews and nieces. It being impossible to arrive at a conclusion in favour of a construction that either two or fourteen should take, how was it possible to give effect to the gift at all? He could find no means of doing so. The testator meant something which he had not expressed; and therefore he was forced to come to that view of the case which the Court never adopted unless driven to it-namely, that there was an intestacy. The declaration would be, that the next. of kin were entitled. That construction would, at least, have the effect of giving something to all the objects of the testator's bounty. 64 R.R. -VOL. CXV. 1858. Dec. 15. WOOD, V.-C. [331] CONSTABLE . HOWICK (1). (5 Jurist, N. S. 331; S. C. 7 W. R. 160.) When a mortgagee receives rents after default is made in payment of the principal and interest on the day fixed by the chief clerk's certificate, but before the affidavit of such default is made, an order for final foreclosure will be granted without further account. THIS was a foreclosure suit. G. W. Collins moved for the usual order for final foreclosure. The common foreclosure decree had been made at the hearing in January, 1858. The chief clerk made his certificate in April, and fixed the 30th September for the payment of principal and interest found due on taking the account. The plaintiff attended on that day to receive payment, and default was made. After that day, but before making his affidavit in support of this motion, the plaintiff received some of the rents. [A] question arose, therefore, whether a further account was not necessary, and a new day for payment. [He cited Alden v. Foster (2), Garlick v. Jackson (3), and other authorities.] SIR W. P. WOOD, V.-C.: I do not think any further account is necessary. The order asked will be made. 1859. March 3, 4. STUART, [ 563 ] THORMAN r. HILHOUSE (4). (5 Jurist, N. S. 563—564; S. C. 7 W. R. 332.) T. T., by his will, after bequeathing sums of stock in trust for certain persons for life, which he directed should, in certain events, fall into his residuary estate," and also after bequeathing other legacies to charities and others, which he directed should be paid out of his personal estate, devised and bequeathed his freehold houses at S., and all and singular other the "residue and remainder of his estate and effects," to his executors, upon trust to pay the income to his sister M. L. for life; and after her decease, to convey, assign, and pay the same residuary estate and effects to her children as therein mentioned. The testator had no other real estate than the houses at S. The personal estate was insufficient to pay both the debts and legacies: Held, that the real estate at S. was part of the testator's residuary estate, and that, as such, it was subject to the payment of the legacies, except the charitable legacies, so far as the personalty was insufficient. THIS suit was instituted for the administration of the estate of Thomas Thorman, the testator, who, by his will, dated the 23rd February, 1848, appointed the defendants Richard Hilhouse and Samuel Lakeman his executors and trustees, and desired "that they would pay all his just debts, funeral and (1) Followed, National Permanent Mutual Benefit Building Society v. Raper [1892] Ch. 54, 61 L. J. Ch. 73, 65 L. T. 668; and see Prees v. Coke (1871) L. R. 6 Ch. 645, 650. (2) 59 R. R. 572 (5 Beav. 592). (3) 55 R. R. 33 (4 Beav. 154). 162. testamentary expenses, as soon as might be after his decease." The testator further directed them to set apart and invest the sum of 2,100l. stock in the 31. per Cents., and to pay the annual dividends thereof to his brother, the plaintiff John Thorman, for life, and to transfer such stock, after his death, to such one or more of his children as should attain the age of twenty-one years; and if more than one, equally; and if none, "the same to fall into his, the said testator's, residuary estate." He then gave directions to his executors to set apart and invest two other sums of stock for the benefit of his brother William and his children, and of his brother Francis, in similar terms. He also gave certain legacies to charities and others, which he directed to be paid out of his personal estate. Then followed these words: "And as to my freehold houses and premises at Staindrop, and all and singular other the residue and remainder of my estate and effects, I devise and bequeath the same to my executors, upon trust to permit my sister Mary Lindsay to receive the income thereof during her life; and after her decease, to convey, assign, and pay the same. residuary estate and effects to such one or more of her children as shall have attained, or shall thereafter attain, the age of twenty-one years; and if more than one, equally, on such children respectively releasing his said executors from all claims. and demands in respect of his residuary estate then divided." And the testator empowered his said sister to let and manage such houses, and to grant leases thereof. The testator was, at the time of his death, entitled to some freehold houses and hereditaments at Staindrop, but to no other real estate. The question which now arose was, whether, inasmuch as the personal estate was insufficient, or scarcely sufficient, for the payment of the debts, and certainly insufficient for the payment of the legacies, the legacies were, by the true construction of the will, chargeable upon the Staindrop estate. Bacon, Q.C., and Hardy, for the plaintiff, submitted that the Staindrop estate was part of the testator's residuary estate, and as such was liable to the payment of the legacies, so far as the personal estate was insufficient. [They cited Mirehouse v. Scaife (1), Francis v. Clemow (2), Wheeler v. Howell (3), and some earlier cases.] Malins, Q.C., and Elderton were for the devisees, and argued that the Staindrop estate was specifically devised, and did not form part of the testator's residue. Fordham appeared for the executors. (1) 45 R. R. 164 (2 My. & Cr. 695). (2) 101 R. R. 696 (Kay, 435). (3) 112 R. R. 105 (3 K & J. 198). THORMAN v. HILHOUSE. |