Mr. Rolt, Q.C., and Mr. Speed, for the heir ex parte maternâ, relied on Godbold v. Freestone (3 Lev. 406).

In Danvers v. Lord Clarendon (1 Vern. 35) it was decided that a bequest of personal property to A. for life, and after the death of A. to the heir of B., vested in the person who was the heir of B. at his death in A.'s lifetime, and not in the person who was such heir at A.'s death. Where the gift was of personalty to A., "and failing him by decease before me, to his heirs," and A. died in the lifetime of the testator, A.'s next of kin at the testator's death were held to be entitled: Vaux v. Henderson (1 J. & W. 388, n.), Shepp. Touchstone, 446, Holloway v. Holloway (5 Ves. 399), Evans v. Salt (6 Beav. 266), Gittings v. M'Dermott (2 M. & K. 69), Harris v. The Bishop of Lincoln (2 P. Wms. 135).

Where real and personal property are blended and given to the heir it has been held that the heir at law takes both: Gwynne v. Muddock (14 Ves. 488), Swaine v. Burton (15 Ves. 365), De Beauvoir v. De Beauvoir (3 H. L. Cas. 524), Boydell v. Golightly (14 Sim. 327), Tetlow v. Ashton (20 L. J. (N. S.) Chanc. 53; 15 Jur. 213) Mounsey v. Blamire (4 Russ. 384).

Mr. Giffard, for other parties.

Mr. Willcock, Q.C., and Mr. Karslake, for the heir at law, who was also the customary heir of the testator.

[393] VICE-CHANCELLOR Sir W. PAGE WOOD, without hearing the counsel for the Defendants, gave judgment as follows:

I do not think that there is any doubt about this case. I have been looking at the case of Harris v. The Bishop of Lincoln (2 P. Wms. 135). The report of it is in the shape of argument between the Bar and the Court, counsel making an observation and the Court answering it. I find there "it was objected that, if the will should be construed in such manner as to entitle the heir of the mother's mother to the estate, such will would be void and nugatory, and the testator all this while would be doing of nothing, because, without any will, the premises would go to the heir of the mother's mother, who was the heir at law to this estate, the heir of the mother's father having none of the blood of the first purchaser. To which the Court said that the testator giving by his will several annuities and charities, and then saying that the residue of the profits should go to the right heirs of the mother's side, it was the same thing as if he had said, 'so far I dispose of my estate, and let so much of it go from my heir who otherwise would have had it, but I will not dispose of it any further from the heirs at law of the mother's side, whence it came, and where it would go in case I should not give it away." In other words, the Court treated it as not being a devise at all, but considered that the heir took by his better title; and that was the principle of the decision.

I think that the answer to the case of Godbold v. Freestone (3 Lev. 406), which is the only case that touches this, is that the use is the old use. Here the devise is an express devise, which vested the whole fee-simple in the trustees, and gave it away from the heir. The whole estate is devised away from the heir, and the trustees are left to deal with the legal fee-simple, and to convey it to such person as should answer the description of [394] the testator's heir at law. The expression "heir at law" is somewhat strong; but, independently of that, the fact of the testator having devested the inheritable quality of the estate by breaking the descent entirely, and giving the estate to the trustees, and leaving them to find out the heir, has put them under an obligation to look upon the heir as a persona designata, and they cannot regard the inheritable quality of the estate, but they must find out the person who answers the description of heir at law of the testator. I think that there is not any authority precisely in point; but the principle must be that, when once the descent is broken by a devise of the whole fee-simple to trustees, upon trust to convey it to the testator's heir, they are bound to convey it to the person who is heir of the testator according to the common law.

[394] SIR EDWARD BULWER LYTTON . THE GREAT NORTHERN RAILWAY COMPANY. 1856.

[S. C. 2 Jur. (N. S.) 436; 4 W. R. 441.]

Railway Company. Agreement. Specific Performance. Siding.

A railway company agreed with a landowner, through whose estate the railway would pass, to construct and maintain a siding connected with their railway at B., together with all necessary approaches thereto for public use, for the reception and delivery of goods. Held, that specific performance could be decreed of the agreement to construct the siding and approaches without decreeing the company to maintain them when made.

Held, also, that the agreement did not bind the company to erect sheds, or to keep one of their servants in attendance at the siding; but that it obliged them to construct a proper siding, with approaches and a wharf or raised platform for the loading and unloading of goods.

Held, further, that "necessary approaches" meant also "proper approaches."

And

The Plaintiff, Sir Edward Bulwer Lytton, being entitled to an estate for life in possession, called the Knebworth estate, in the county of Hertford, through which the Defendants, the Great Northern Railway Company, were making a railway, on the 5th of June 1848 entered into an agreement with the said company as follows:Whereas the Great Northern Railway is intended to pass through the estate called the Knebworth estate, in the [395] possession of the said Sir Edward George Earle Lytton Bulwer Lytton as tenant for life thereof, without impeachment of waste, under the will of Elizabeth Barbara Bulwer Lytton, dated the 21st of July 1840, with remainder to his son, Edward Bulwer Lytton, for life, with remainder to the first and other sons of the said Edward Bulwer Lytton, with divers remainders over. whereas the said company have given notice, in due form of law, to the said Sir Edward George Earle Lytton Bulwer Lytton, for the purchase of such parts of his said estates as will be required by the said company for the construction of the said railway; but the said parties not being able to agree upon the price and compensation to be paid in respect thereof, notice of ascertaining the same by jury has been given, and such price and compensation will be ascertained by the verdict of such jury and whereas it has been agreed between the said Great Northern Railway Company and the said Sir Edward George Earle Lytton Bulwer Lytton that the said Great Northern Railway Company shall make a siding from their said railway at a place called Broadwater, for the purposes hereinafter mentioned, and also to find and provide such communication, or, in lieu of communication, to purchase the several parcels of land hereinafter referred to: Now, therefore, it is hereby agreed by and between the said parties hereto, that the said Great Northern Railway Company shall make, form and construct, and hereafter maintain, so long as the same shall be of convenience, a siding connected with their railway at Broadwater, together with all necessary approaches thereto for public use, for the reception and delivery of goods, wares, merchandise, and other matters and things to and from the surrounding neighbourhood, including the tenants and other persons on the estate of the said Sir Edward George Earle Lytton Bulwer Lytton."

The Plaintiff called upon the Defendants to perform their said agreement, and received in reply a letter from Mr. Sey-[396]-mour Clark, the engineer of the company, dated the 12th day of December 1853, containing the following passage:- "I propose therefore, if such will be satisfactory to you, to move this siding from the 'up' to the 'down' line, and make a spur (to use a railway technicality) so as to enable full and empty waggons to be separated. To put up signals for day use, to which period of the twenty-four hours the access from the line to the siding would be limited, and to work the traffic from Welwyn in this way, namely, that all trucks for the siding at Broadwater being left at the Welwyn station would be forwarded thence, and all waggons

to be sent from the siding being moved by an order from Welwyn, no train would be allowed to follow that that was doing the work at Broadwater. The approach road made by the company will thus be available to yourself and tenants, and the question of wharves, cattle landing-places, roofs, &c., must be left to you, or such parties as may desire to use the siding. The company cannot build them, nor can I, under any reading of the agreement, find that they are so bound."

The bill prayed specific performance of the said agreement, and that it might be declared that, according to the true construction thereof, the Defendants ought not only to carry out and execute what was proposed in and by the said letter of the 12th day of December 1853, but also to erect a wharf or platform and shed, in connection with the line of side rails, and to cause some servant of the said company to attend for the purpose of receiving goods intended to be forwarded by the said railway. Mr. Willcock, Q.C., and Mr. Hetherington, for the Plaintiff.

Mr. Rolt, Q.C., and Mr. T. Stevens, for the company.

THE VICE-CHANCELLOR reserved judgment.

[397] April 8. VICE-CHANCELLOR Sir W. PAGE WOOD, after shortly stating the agreement, continued as follows:

The first question is whether this is an agreement of which this Court has jurisdiction to direct specific performance. The Plaintiff would have thrown some difficulty in his own way on this point if I had adopted the construction of the agreement suggested by him. I cannot, however, do so. He suggests that he is entitled not only to have the material things mentioned in the agreement provided, but also to have all accessory conveniences, as sheds, and a man to wait at the siding, and a crane to load and unload goods, which, however, is not asked for by the bill. But the bill asks that the company may be decreed to place there a servant of their own to attend and receive the goods; and I should have had great difficulty in enforcing such an obligation as that for all time against the company, supposing it to be contemplated by the agreement. But the words refer to a material thing only. Nothing is said about the company carrying goods. If they do not, those who desire to use the railway may do so under the powers given them by the Acts of Parliament; and what the Plaintiff is entitled to is to have this siding formed, whatever it may be, and the necessary approaches made thereto for public use, for the reception and delivery of goods, wares and merchandise, and other matters and things.

The Plaintiff not only takes an extreme view of his rights in requiring the company to keep a man at the siding, but also in requiring them to build sheds. If he had wished to have a station made it would have been easy to have said so; the meaning of that word is familiar to every one. It is also equally well known that there are things called sidings, on which waggons are put aside from the main track that people may come and remove their goods from them; and I can-[398]-not give much credit to the witnesses who say that a siding, according to their interpretation of the word, means numerous other things, which may no doubt be very convenient, but which are not covered by the true signification of the word. According to that construction the words should be equivalent to "a siding, with all proper conveniences connected therewith;" but nothing of that kind is specified in this agreement. The Defendants' witnesses, on the other hand, say that the agreement contemplates a siding and nothing else; but there is also the stipulation for approaches, to which I have referred; and I cannot give a construction to the agreement which would omit any of the words.

What was proposed to be done by the Defendants included something partly for their own convenience. It is for the company's advantage to carry goods, and it is their duty to put up signals, and to take all means necessary to prevent accidents by collisions.

The secretary of the company wrote a letter to the Plaintiff, in which he says, amongst other things, "The approach road made by the company will thus be available to yourself and tenants, and the question of wharves, cattle landing-places, roofs, &c., must be left to you, or such parties as may desire to use the siding.

There, it seems to me, though the point of difference is so small that I do not intend to give costs on either side, the company do set up a claim to be exempted from performing part of their obligation under the agreement. The Plaintiff is entitled to a wharf or raised platform. He claims also to have sheds, and one of the

company's porters constantly in attendance; as to these I see nothing in the agreement, and if there were any such stipulation as the last, it would be difficult to decree specific performance of it.

Then the next question is what is to be done with that [399] clause which says that the company are to maintain the siding. I think, as to this, that it is no objection to a bill for specific performance of an agreement to construct a work of this kind that there is a clause in the agreement that the party making it shall keep it in repair when made.

I may order that the work shall be done; and the question of repairs will be a matter of inquiry when a breach of that part of the agreement occurs.

question of specific performance as to that part of the agreement at present.

There is no

The order must be as in Sanderson v. The Cockermouth and Workington Railway Company (11 Beav. 497; 2 H. & T. 327). A reference must be made to Chambers to see that the work is duly performed. And I must adopt the decision that the word necessary" in this agreement means also " proper.'

Declare, that according to the true construction of this agreement, the company ought to make, form and construct, in a convenient place at or near Broadwater, a siding, with such approaches thereto as may be necessary and proper for the convenient use of the siding, and for the reception and delivery of goods, wares, merchandise and other matters and things.

But that the company are not bound to provide sheds or other conveniences, except as aforesaid.

Refer it to Chambers, if the parties differ, to inquire where or by what means the same is to be done.

No costs on either side.

[400] BLINSTON v. WARBURTON. March 11, 14, 1856.

[S. C. 25 L. J. Ch. 468; 2 Jur. (N. S.) 858.]

Will. Construction. Executory Devise. Dying without Issue. Special Case. Costs. A devise in 1822 of real estate to S., upon condition that she pay £50 to B. by instalments of £10 a year; but in case S. dies without issue, the land to go to T. or his heirs, "in consideration that he pays to J. or his heirs the sum of £250, twelve months after the death of S." Held, that the gift conferred upon S. a fee-simple by reason of the charge of £50; and that the gift over was to take effect upon her death without issue then living, from the direction that the executory devisee was to pay the £250 twelve months after the death of S.

Wyld v. Lewis (1 Atk. 432) distinguished.

The Court has no jurisdiction to order the costs of all parties to a special case to be paid, unless there is a fund in Court. The proper course is to insert in the special case a question out of what estate or fund the costs should be paid.

The will of Joseph Blinston, dated in 1822, contained a devise as follows:-"“I give to my daughter Sarah a dwelling-house and cottages adjoining, known by the name of Nag's Head, situated in Lymm Booth land, in consideration that she pay to Ann Chorley, or her heirs, £50, by instalments of £10 per annum for five years, to commence payable twelve months after my decease; but in case my daughter Sarah dies without lawful issue, the before said dwelling-house and cottages shall go to my son Thomas, or his heirs, in consideration that he pays to my son Joseph, or his heirs, the sum of £250, twelve months after my daughter Sarah's decease.

The testator died, and Sarah afterwards married the Defendant, Bennett, and died without having had any issue, but having previously executed a disentailing deed, by which she affected to convey the property to trustees, upon trust for the survivor of herself and her husband. Her husband survived her, and had possession of the title-deeds.

These facts were stated in a special case, in which Joseph Blinston and the assign of Thomas Blinston's interest were Plaintiffs, and the husband of Sarah Bennett and the trustees of the disentailing deed were Defendants; and the questions were whether the Defendants or the Plaintiff, the assign of Thomas, were entitled to possession of the title-deeds, and whether the £250 was a valid charge upon the property.

[401] Mr. Rolt, Q.C., and Mr. C. Hall, for the Plaintiffs, relied on Nicholls v. Hooper (2 Vern. 685; 1 P. Wms. 198), in which the devise was to the testator's wife for life, and after her decease to his son Thomas, his heirs and assigns, for ever: Provided, if Thomas died without issue of his body, then the testator bequeathed to his daughters M. and E. £200, to be paid out of his estate within six months after the decease of the survivor of the wife and son; and the dying without issue was construed to mean dying without issue living at the death of Thomas. They cited also Pells v. Brown (Cro. Jac. 591), Doe d. King v. Frost (3 B. & Ald. 546), and Kavanagh v. Morland (Kay, 16). The Vice-Chancellor referred to Doe v. Webber (1 B. & Ald. 713) and Ex parte Davies (2 Sim. (N. S.) 114).]

Mr. Willcock, Q.C., and Mr. G. L. Russell, for some of the Defendants. The gift conferred an estate tail: Doe d. Cannon v. Rucastle (8 C. B. 876), Doe d. Jones v. Davies (4 B. & Ad. 43), Greenwood v. Verdon (1 Kay & J. 74).

Mr. Horsey, for the trustees, cited Wyld v. Lewis (1 Atk. 432).

Mr. Rolt, Q.C., in reply.

Judgment was reserved.

VICE-CHANCELLOR Sir W. PAGE WOOD. The question in this case is whether the gift by the will of Joseph Blinston to his daughter Sarah conferred on her [402] an estate in tail, or an estate in fee-simple, with an executory devise over in the event of her dying without leaving issue living at her death. The will is very inartificially drawn; it contains a gift in the following terms:

"I give to my daughter Sarah a dwelling-house and cottages adjoining, in consideration that she pay to Ann Chorley, or her heirs, £50, by instalments of £10 per annum for five years, to commence payable twelve months after my decease." By this gift Sarah would take the fee-simple, on account of the condition attached to it. The will continues: "But in case my daughter Sarah dies without lawful issue, the before said dwelling-house and cottages shall go to my son Thomas, or his heirs, in consideration that he pays to my son Joseph, or his heirs, the sum of £250, twelve months after my daughter Sarah's decease."

It is clear, upon the authorities, that if apt words of limitation had been used, and an estate in fee so given to Sarah, the case would have been within the rule laid down in Doe v. Frost (3 B. & Ald. 546) and Doe v. Webber (1 B. & Ald. 713); and the fee-simple would have passed, subject to a valid gift over, because the payment was directed to be made within twelve months after the decease of Sarah, which points to a limited period within which the dying without issue contemplated by the testator was to take place, and therefore it resembles the words used in those cases. In the late Mr. Prior's valuable book the cases are collected. In Wyld v. Lewis (1 Atk. 432) Lord Hardwicke held that a similar gift conferred an estate tail, and he gives as the reason his desire to secure the estate to the testator's grandchildren, in a note in his own manuscript, which is given in West's Reports, 311. The devise in that case was to the testator's wife of all his lands not settled in jointure generally, words which were not sufficient [403] to pass the fee-simple; and "if it shall happen that my said wife Elizabeth shall have no son nor daughter by me begotten on the body of the said Elizabeth, and for want of such issue, then the said premises to return to my brother, John Wyld, if he shall be then living, and his heirs, for ever, only paying to his two brothers (A. and B.) the sum of £150 within one year after the decease of the said Elizabeth." The words there were remarkably similar to the language used in this case; and Lord Hardwicke held that an estate tail was created, and he said that "the direction for the payment of £150 within a year are very proper circumstances in general to be made use of, to induce the construction contended for by the Plaintiffs, and what may seem to imply an intent in the testator that the interest of John Wyld under the will should, if at all, commence on the death of Elizabeth; but if the preceding words are proper to create an estate tail, the legal operation of them cannot be controlled by those subsequent provisions."