her) Held, that she was not bound to elect between her dower and the benefits given her by the will.

The authorities on this subject examined, and observations on Chalmers v. Storil (2 V. & B. 222), which is imperfectly reported.

Joseph Bending, by his will, in 1853, after appointing two persons, named Mackeson and Cubitt, to be executors and trustees thereof, proceeded to devise as follows:-"First, I give unto my wife all my household furniture, money, securities for money, and all other my personal estate of every description, to hold the same unto my said wife for her absolute use and disposal, she paying thereout my just debts, funeral and testamentary expenses, and also a legacy of £50 to John Dunnell. I direct my said executors and trustees, or the survivor of them, his heirs and assigns, as soon as convenient after my decease, to proceed to a sale by auction of all my freehold and copyhold estates wheresoever situate, lying and being; and after paying all [258] expenses attending the said sale or sales, I do give one-half of the proceeds of the said sale, after payment of the said expenses as aforesaid, unto my said wife absolutely, one-fourth part of the said proceeds unto my half-niece Miranda, and the remaining one-fourth part unto Thomas Bending."

The testator made a codicil to his will, as follows:-"Whereas, by my will I have given all my money, securities for money, and all my personal estate, unto my wife. Now, my intention is to give my household furniture, plate and effects in and about my dwelling-house to my said wife, and no more, except the said half mentioned in the said will; and all my money, securities for money, and all other my personal estate should be divided in the same proportions as my real and copyhold estates; and that the legacy of £50 to John Dunnell should be paid out of my money and personal estate, also my just debts and funeral expenses."

The Chief Clerk having found that the testator's widow was dowable out of a freehold house of which he died seised in fee, the question, on further consideration, was whether she was bound to elect between her dower and the benefits given her by the will.

Mr. Hallett, for the Plaintiff, Thomas Bending, and

Mr. H. Clarke, for the Defendant Miranda and her husband, contended that the widow was put to her election.

By the effect of the will and codicil taken together the whole of the real property, and (with the exception of the household furniture, plate and effects mentioned in the codicil) the whole also of the personal property, are united [259] and directed to be sold, and the entire proceeds are to be divided into two equal moieties, one for the widow, the other for the Defendants, in equal shares. "By directing all his real and personal estate to be equally divided, the testator intended the same equality to take place in the division of the real as of the personal estate, which cannot be if the widow first takes out of it her dower:" per Sir William Grant in Chalmers v. Storil (2 V. & B. 222). "The real and personal estate are united together, the personal estate is not subject to any antecedent claim; and is not the real estate intended to be given in the same manner?" per Sir Thomas Plumer, M.R., in Dickson v. Robinson (Jac. 403), Roberts v. Smith (1 S. & S. 513), Reynolds v. Torin (1 Russ. 129), Parker v. Downing (4 L. J. Chanc. (N. S.) 198).

In French v. Davies (2 Ves. jun. 572), which will be cited contrà, equal division was not intended. In Ellis v. Lewis (3 Hare, 310) the testator intended to give no more than he himself could have sold; and so in Gibson v. Gibson (1 Drew. 42), where, by the words "for all my estate and interest therein," he shewed he had no intention to pass what did not belong to him.

Hall v. Hill (1 Dru. & W. 94, 107) shews that the Court will "look at the whole frame of the will, and its several provisions;" and that where, as here, "the will shews an intention, on the part of the testator, to provide for his wife by his will, and that she is to have nothing but what he gave her by his will," it is a case for election. In Hall v. Hill, as here, "the widow acquired under the will a much greater provision than she would have been entitled to as dower in the ordinary way," and upon that ground, coupled with the former, Lord St. Leonards held that she was barred. (Id. 108.) And compare Warbutton v. Warbutton (2 S. & G. 163).

[260] Mr. Caldecott, for the widow, contended that, there being nothing in the will inconsistent with the assertion on the part of the widow of her right to have onethird part of the land set out by metes and bounds, she was not put to her election; French v. Davies (2 Ves. jun. 572; and see Birmingham v. Kirwan, 2 Sch. & Lef. 444). By the words "all my freehold and copyhold estates" the Court will not take the testator to mean his wife's estate, or "gather from his having given all he has, that he has given that which he had not:" per Lord Thurlow in Foster v. Cook (3 Bro. C. C. 347, 351). The circumstance of there being a trust for sale is immaterial; the sale would be subject to dower, and the proceeds would represent the gross value minus the value of the dower: per Sir James Wigram, V.-C., in Ellis v. Lewis (3 Hare, 313, 314), Gibson v. Gibson (1 Drew. 42, 59). And if the trust for sale does not import an intention to pass the land otherwise than subject to dower, the direction as to the application of the proceeds cannot affect the case. No such direction can

decide what the subject of sale is: per Sir James Wigram. (3 Hare, 314, 315.)

In Chalmers v. Storil, Dickson v. Robinson and Roberts v. Smith it was the specific land that the testator intended the parties to enjoy in the proportions specified, not, as here, the proceeds of the sale of his interest in the land.

Mr. Hallett, in reply, contended that the power of sale extended to the whole land. The words were "all my freehold and copyhold estates wheresoever situate." THE VICE-CHANCELLOR said he thought the case was like Ellis v. Lewis (Id. 310), but he should not decide it without examining the authorities.

Judgment reserved.

[261] March 26. VICE-CHANCELLOR Sir W. PAGE WOOD. This is a question of some importance, viz., whether the widow of the testator, Joseph Bending, is entitled to the benefits given her by his will, without electing between those benefits and her right to dower.

The will is very short. [His Honour read the will and codicil.]

It was argued that the case must fall within the principle of Chalmers v. Storil (2 V. & B. 222). There, the testator gave to his wife and his two children (a daughter and a son) "all his estates whatsoever, to be equally divided amongst them, whether real or personal;" his daughter to have an equal share with his son of all his property, after paying certain legacies. The reporter adds that the testator then "specified the property bequeathed by him as consisting of freehold ground-rents, money on mortgage, American Bank stock, and estates in America," &c., and proceeded to direct that, in case of his wife's death, the portion or part bequeathed her should descend to his two children equally; and, in the event of both their deaths before her, that she should enjoy, during her life, the portion or portions bequeathed to them; and in the event of the deaths of his wife and two children, he made other gifts over. It is plain that this case is very imperfectly reported as to the instrument itself. Sir William Grant first says this: "As to the widow's right to dower, whether she took under the will an absolute interest or for life only, it is a case of election; the claim of dower being directly inconsistent with the disposition of the will. The testator directing all his real and personal estate to be equally divided, &c., the same equality is intended to take place in the division of the real as of the personal estate; which cannot be if the widow [262] first takes out of it her dower, and then a third of the remaining two-thirds." Then he adds, what shews that there must be some important omission in the report: "Further, by describing his English estates" (there is no such description in the will as it is stated by the reporter), "he excludes the ambiguity which Lord Thurlow in Foster v. Cook (3 Bro. C. C. 347) imputes to the words 'my estate' as not necessarily extending to the wife's dower. Here, the testator says, the property thus bequeathed by him consists of these particulars. It is therefore the property itself thus described that is the subject of the devise; and not what might, in contemplation of law, be the testator's interest in that property. This is therefore a case of election." So stated, no one could hesitate to say that this seems to be the right conclusion. The words on which Sir William Grant appears to have founded it are not reported in the statement of the will. He seems to have relied on some specific statement in the will as to what the property was which the testator devised, and to have therefore concluded that the testator was not giving his estate in the property, but a certain share of the property itself to be enjoyed by the wife.

Therefore, rightly viewed, the case of Chalmers v. Storil is no exception to the rule laid down by Lord Thurlow in Foster v. Cook (3 Bro. C. C. 347)—which has been the governing rule in most of the subsequent cases (although there has been some discrepancy between the Judges), viz., that where a testator says, "I give all my estate," he does not mean to give his wife's estate, that is, her right to dower.

Unfortunately, Lord Alvanley seems to have taken a more favourable view than other Judges as to the wife's claim; and, in one case, Strahan v. Sutton (3 Ves. 249), when pressed with the impossibility of giving effect to the will con-[263]-sistently with the widow's claim to dower, since she might insist on having one-third set out by metes and bounds, he attempted to evade that argument by denying that there was any necessity for the widow to claim her dower in that form. "It has been determined," he said, "that the widow need not take it by metes and bounds; she may take a rent-charge; she may take one-third of the rents and profits." That, however, is not now the law of the Court.

The law of the Court at the present day is that laid down by Lord Redesdale in Birmingham v. Kirwan, where he says that, if you find anything in the will which is inconsistent with the assertion on the widow's part of her right to have one-third of the land set out by metes and bounds, that raises a case of election.

Different Judges have come to different conclusions as to what is such an inconsistency. In Chalmers v. Storil the testator directed the very land itself to be equally divided, and that could not be done consistently with the widow's claim. That has since been followed by Sir Thomas Plumer, in the case of Dickson v. Robinson (Jac. 403), which seems to be exactly similar. There the testator directed an equal partition of the land, for the equal benefit of his wife and children and it was inconsistent with her taking that share of the property that she should also have her dower.

In Roberts v. Smith (1 S. & S. 513) the Vice-Chancellor recognises the law as laid down in Chalmers v. Storil. By the will, in Roberts v. Smith, the annual produce the identical rents were directed to be divided and paid, as to one-half part thereof, to the testator's wife for her life, for the maintenance of herself and her children by her former husband; and, as to the other half, for the maintenance of the testator's own [264] children. And the Vice-Chancellor held that the testator intended by that to give the whole of the rents anterior to the wife taking any share by metes and bounds. He collected from the will that the identical rents were intended to be divided, and, that being so, it was a clear case of election.

Here, I have a simple case of a trust for sale. Whatever difficulty has arisen upon powers of leasing, it is obvious that, if they are inconsistent with a wife's right. to dower, as it seems now to be thought, there is no such inconsistency in the case of a power of sale, or a trust for sale. It is everyday's practice that a person directs his estates to be sold; and they are sold subject to the rights to dower, and the widow has her dower first set out. For this I have the authority of Lord St. Leonards, in the case of Hall v. Hill: he says, "I am not aware how the power of leasing, in this case, can be exercised over all the estate, if the widow's right to dower be allowed. One can understand how the rents might be enjoyed, or the estate sold, subject to the claim for dower; but how could you demise an estate subject to the right of this lady to have a third part thereof set out by metes and bounds?" (1 Dru. & W. 107.) I am glad to have so difficult a problem, in which so many Judges have differed, decided by his authority.

I am further fortified in my view by the observations, which seem to be unanswerable, of Vice-Chancellor Wigram in Ellis v. Lewis (3 Hare, 310, 313-315), where he says the law is clearly settled that a devise of lands, eo nomine, upon trust for sale, does not per se import an intention to pass the land otherwise than subject to the legal incident of dower; what the testator directs to be sold being not his wife's estate in the lands, but his own; and then, "if that be so, it is impossible," he says, "that any direction for the application of the [265] proceeds of such sale can affect the case. The devise is of land subject to dower. The trust to sell is a trust to sell subject to dower; and the proceeds of the sale will represent the gross value of the estate minus the value of the dower. Whatever direction, therefore, for the mere distribution of the proceeds the will may contain, that direction must leave the widow's

right to dower untouched. (3 Hare, 314.) . . . So the direction to divide the proceeds of the sale cannot decide what the subject of the sale is." (Id. 315.)

But if there be a clear indication on the face of the will that positive equality was intended that the widow was intended to be in no better position than the children, after taking into account her own rights, independently of the will, and those which the will has given her, of course that must be followed; and, in such a case, her right to dower will be excluded.

That was the case in Hall v. Hill. There, Lord St. Leonards thought that, looking to the whole of the will, the wife was not intended to be in a better position than the other devisees; and then he makes this observation, which is commented upon by Sir John Stuart: "If I am bound to spell out the intention of the testator, I think, looking at the whole frame of the will and its several provisions, that the testator meant to provide for his wife by his will, and that she was to have nothing but what he gave to her by the will" (that was a point to be ascertained). "He gives her a house, and the furniture. He gives her also an annuity out of the general estate: and she has acquired, under the will, a much greater provision than she would have been entitled to in the ordinary way. That she is of this opinion is evident, because she has elected to take under the will, if required to make an election. I hold, therefore, that she is barred of dower, and that by [266] clear implication. I have satisfied myself of the intention of the testator." And then he repeats that he despairs of reconciling the authorities, but follows what he considers the best.

Vice-Chancellor Stuart has observed, in reference to that passage, that he rather thinks that Hall v. Hill is the first case which has gone the length of holding that. when the wife is entitled under the will to what would be more than her dower, it is a strong indication of intention that she should not have the benefit of that and her dower also; and looking to the various motives that may actuate persons, it is evident that such a rule as this might open a door to difficulties, more than the Courts have had hitherto to deal with. If that were the test, it is clear that in this case the widow would have to elect; for she takes under the will more than her dower, the testator having given her half of his personal as well as of his real estate.

The only part which at all presses me in the judgment in Chalmers v. Storil is the observation at the beginning with respect to the personal estate, viz., that the testator having directed all his estates to be divided equally, it must be supposed that he intended to give the same interest in his real as in his personal estate, and that, as the personal estate was subject to no charge of dower, he did not intend the real estate to be subject to any such charge. But Sir William Grant did not rely on that circumstance alone. He relied upon the whole will; and considered that, upon the whole will, it was the land itself which the testator intended to be the subject of equal division.

In this case there is simply a direction for a sale of the whole of the estate, and that the produce should be divided equally between the parties. There is nothing in that inconsistent with the wife's right to have a third of the land [267] set out by metes and bounds. Therefore I must hold that she is not put to her election.

I should have observed that Vice-Chancellor Kindersley, in his judgment in Gibson v. Gibson (1 Drew. 42), has taken the same view in reference to this question.

[267] LAFONE v. THE FALKLAND ISLANDS COMPANY (No. 2). March 14, 1857.

Incomplete Answer. Replication. Suitor's Fee Fund.

A Defendant filed an answer in a suit, and thereby referred to a printed document, which was not filed, as an exhibit, and verified the statements in it, and constantly referred to them as part of the answer. Held, that the answer which was filed was incomplete without the printed document, and that the Clerk of Records and Writs was justified in refusing to file replication to it.

This was a motion by the Plaintiff that the Clerk of Records and Writs might be ordered to file replication in the suit, he having refused to do so under the following

circumstances: The Defendants had put in a written answer, about 286 folios in length, and thereby they referred to a document, called their printed answer, as an exhibit, and prayed that it might be taken as part of their answer, and constantly referred to it and repeated the allegations therein, as if they had formed part of the answer, and verified such allegations. The written answer was filed, but not the printed document.

Mr. Hardy, for the motion. The Plaintiff wishes that the course of justice should not be obstructed. He is content to treat the printed document as no part of the answer; the written answer is regular enough. It may be said that the Plaintiff could have excepted to the answer, or moved to take it off the file; but he did not choose to do so, and he certainly was not bound to do so, in order to secure the payment of the proper fees to the Suitors' Fee Fund, for the sake of which this objection is now made.

[268] Mr. James, Q.C., and Mr. J. H. Taylor, for the solicitor to the Suitors' Fee Fund.

THE VICE-CHANCELLOR. I am clearly of opinion that I cannot look at the printed document. I consider it as no part of the answer; but there is an answer filed, and why should not replication be filed to that?

Mr. Giffard, for the Defendants. This course has been taken for the sake of convenience. It matters little to the Defendants whether the printed document is filed or not. The expense, if it is filed, will fall upon the Plaintiff, as he will have to take an office copy of it. The Defendants have no objection to file it, if necessary.

Mr. Hardy. The Plaintiff will agree that it shall be treated as an answer without filing it.

THE VICE-CHANCELLOR. The question is whether the printed document is part of the records of the Court or not. One mode of settling that question would be by filing a special replication to so much of the answer as is put on the file.

Mr. James, Q.C. The object of the parties is to avoid paying the usual fees required by the practice of the Court. How can this printed document be used in the cause if it is not filed? Parties could not agree to use a bill which was not on

the file.

The Court cannot deal with pleadings unless they are on the record; and the reason is that, unless they are so, they cannot be regarded by the Court of Appeal, or by the House of Lords in the last instance. No arrangement between the solicitors or counsel of the Plaintiff and Defendants can ever make this printed document part of the answer, unless it is filed like the rest of the answer.

[269] [THE VICE-CHANCELLOR. If admitted at all, it ought to be deposited like a model or a map, which is made an exhibit.]

At present, there is in truth no answer on the file. It is as though the answer consisted of ten skins, and three of these had been taken away, and the rest only filed.

Mr. Hardy. The answer has referred to this exhibit just as though it had referred to the Times newspaper of a certain day, as containing a true statement of part of the Defendants' case. [VICE-CHANCELLOR. The difference is that the exhibit in this case is in truth another answer, and I shall admit that if I allow replication to be filed. Is the Plaintiff obliged to take an office copy of the answer?]

Mr. James, Q.C. Yes; I am told that he must do so before replication is filed, by the practice of the office.

[VICE-CHANCELLOR. Suppose a Defendant were to file two skins of parchment, stating part of his case, and that the whole answer filled six skins, and were to swear to the remaining four skins as if they were filed, could the Court allow that?]

Mr. Hardy. That would be like the case put by Mr. James in argument, an instance of an answer defective in itself; but here, the answer which has been filed is not so.

VICE-CHANCELLOR Sir W. PAGE WOOD. I think that the answer which has been filed, upon the face of it, is not an answer which satisfies the rules of this Court. It refers to the printed document as an exhibit, and verifies it; and then, throughout the written answer, there are constant references to the statements in the printed do[270]-cument. The object of the record is that the pleadings upon which the Court