I notice this case because it meets one part of the argument, that the payment was to be made within a year, and therefore there was to be that interval after the death of the first devisee. Lord Hardwicke says the gift over was to take effect upon a failure of issue at the death of the first taker, and a period was given afterwards in which to make the payment. Part of the report in Atkyns is exactly to the same effect as that in West, but in the latter it is stated, as noticed by Prior, par. 118, that, from the Lord Chancellor's memorandum added to his own note of the case (West, 311), it appears that the prevailing idea in his mind was to put such a construction on the will as would secure the estate to the testator's grandchildren. He evidently relied on that considerably in the first part of his judgment.

Here I find a gift for the benefit of Sarah, and then a [404] gift over in words which, referring to a payment to be made by the executory devisee within a year after the death of the first taker, would, unless Sarah took an estate tail, tend to shew that the limitation over was intended to take effect on her death without issue at a particular period; and the result would be that there would be a gift for life to Sarah, no gift to her issue, and yet the estate was not to go over except on failure of the issue of Sarah. And I have first to consider whether it was the testator's intention to give any interest to such issue; and, secondly, whether, if the issue failed within a limited period, it was his intention to give the estate over to the executory devisee. It would seem an absurd intention to impute to the testator, and Lord Hardwicke refers to that absurdity, that Sarah should take merely a life interest, that her issue should take nothing, and yet, if Sarah died without issue, and only in that case, there should be a devise over.

In Doe v. Webber (1 B. & Ald. 713) the Court distinguishes the case in that respect, saying, that when you find a gift in fee in the first instance, the issue then take by representation, and the gift over is simply a qualification of the larger estate previously given; and that is consistent, because the issue, if any, would take by virtue of the first gift, and if there be no issue, it is reasonable that there should be an executory devise.

In Wyld v. Lewis (1 Atk. 432) Lord Hardwicke says, "It seems clear from the words of the will (as to all my worldly estate), which introduce the disposing part of the will, that the testator intended to make an absolute disposition of his whole estate by his will, and not suffer any part to descend as undisposed of in case of any contingency; and as he intended [405] a disposition of the whole by his will, the objection that the grandchildren, by this construction, are liable to be excluded, is a very strong argument for construing this an estate tail; and the inclination to avoid this absurdity has been the principal reason for construing words of the singular number, and which are properly descriptive of particular persons only, in a collective sense, as including all the descendants of the first taker:" that is referring to the words "son" or "daughter." The real rule is admirably extracted from the cases by Prior, par. 104: "A comparison of the cases of Wyld v. Lewis (Prior, s. 118) and Simmons v. Simmons (Id., s. 135) with the other cases under the respective subdivisions in which they will be found, will perhaps warrant the following general conclusion: That when there is nothing in the will to give an estate to the issue, or to give the ancestor more than a life interest, words in the limitation over not directly expressing, but which in the generality of cases would be considered as intimating an intention on the part of the testator that the failure of issue should be confined to a limited period, shall not have this effect; but that, on the contrary, the gift over shall, if possible, be construed as taking effect on an indefinite failure of issue, for the purpose of creating according to the rule stated (Prior, s. 179) an estate tail in the ancestor, and thereby securing a devolution of the property to his issue."

I think that it is impossible to put it better than in those words; and applying that doctrine, which seems to be Lord Hardwicke's own view in Wyld v. Lewis (Prior, s. 118), though I find no case where the fee-simple in the first taker was merely a constructive fee-simple, but only cases where there was an absolute limitation to the party and his heirs; yet where I can give to the words "failure of issue," restricted as in this case, a meaning which implies failure within the limit [406]-ed period after the death of the first taker, and I am not driven to a contrary conclusion by the absurdity of giving only a life-estate to the parent and no interest to the issue, I am

obliged to construe the limitation over to refer to the death of the first taker. I think that there is no such absurdity in this case, and I may hold that the whole feesimple passed over by the first gift, and then the gift over would be good, being confined to the proper limited period. Therefore the Plaintiff, Thomas Blinston, is entitled to the deeds, and the £250 is a valid charge on the property.

With respect to costs, upon a special case there should either be some arrangement between the parties, or there should be a question in the case out of what fund they ought to come. I do not think I have jurisdiction to order the payment of the costs, there being no fund in Court.

Will.

[406] MATTHEWS v. WINDROSS. April 8, 1856.

[S. C. 2 Jur. (N. S.) 926.]

Construction. Indefinite Devise. Charge. Fee-Simple. Life-Estate.

Devise in 1820 of estates A. and B. to the testator's wife for life, and, after her death, estates A., B. and C. to the testator's son J., without words of limitation. Subsequently a devise of an annuity of £10 to D. for life, to be paid out of estate A. by J. Held, that J. took an estate in fee-simple in A., but a life-estate only in B. and C.

The will of William Windross, dated in 1820, was as follows:-"I give, devise and bequeath unto my dear wife Eleanor all the lands called Dove Acre and Blake Steell closes, with a bed and furniture for one room, such as she may fix on after my decease, for and during the term of her natural life; and from and after her decease, then I give, devise, and bequeath unto my son Joseph Windross the Dove Acre close, also the first low Blake Steell close, with the cow-house, also the dwelling-house he now lives in, with [407] all the appurtenances belonging thereto. I also give, devise, and bequeath unto my son James Windross the sum of £80 given to me by his uncle William Knowles; I therefore appoint the said sum to be paid out of the following land hereafter mentioned; that is to say, the second Blake Steell close, called Barn close, also another close adjoining Mr. Wright and Husthwaite lane end, and with the hedge adjoining, now belonging to the other low field, also to be subject to make his own gate. I give, devise, and bequeath unto my son-in-law Stephen Smith the third Blake Steell close, adjoining Mr. Robson's land; also two other closes, called Blake Steell, adjoining the lane. Also I give, devise, and bequeath unto my son David Windross, now in Jamaica, if he ever comes back again to reside in England, the sum of £10 a year during his natural life, to be paid out of the Dove Acre close by my son Joseph Windross. I give, devise, and bequeath unto my son John Windross all my other lands, messuages, and tenements not hereinbefore disposed of, and all my stock-in-trade, and farming dead and live stock, of whatsoever description it may be, subject to pay all my just debts as executor. Also, I do hereby appoint my son John Windross sole executor and residuary legatee of this my last will, hereby revoking all former and other wills by me made, and do declare this only to be my will."

Mr. Rolt, Q.C., and Mr. Humphry, for persons representing John Windross.

The gift to Joseph conferred on him an estate in fee in Dove Acre, and estates for life only in the other property given to him.

Mr. C. Hall, for persons representing Joseph Windross.

Joseph Windross took an estate in fee-simple in all the [408] property devised to him. When the testator intended to confer a life-estate, he so expressed himself; and therefore the inference is, when he makes an indefinite gift, that it is intended to confer a fee-simple. But in Dove Acre at least a fee-simple was given by means of the charge upon it: Doe v. Snelling (5 East, 87); and this strengthens the implication as to the other estates given to Joseph. Moreover, Dove Acre was most probably intended to be used in the clause creating the charge as a generic name referring to all the estates previously given to Joseph.

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

V.-C. XIV.-27*

VICE-CHANCELLOR Sir W. PAGE WOOD. There is only one point in this case which requires much consideration, namely, whether or not, coming to the conclusion that one of the gifts in this will, in which there are no words of limitation, confers a fee-simple on Joseph Windross, I am bound to extend that construction, so that, having construed in this manner one indefinite gift, I must hold the others to have a like effect; and I am of opinion that I cannot do so, and that it would be going further than, upon a proper construction of the testator's intention, I am warranted to go.

In any will it is necessary to construe the intention from the expressions actually used; and the Courts always, as in Doe v. Snelling (5 East, 87), most reluctantly decide that a gift of land without words of limitation, by a will under the old law, will not pass the fee-simple, though, as Lord Mansfield said, a testator, when he gives a house indefinitely, probably in his own mind means the same as when he gives a horse; for, [409] unless something is expressed in the will, it is a settled rule that such a gift of real estate under the old law conferred only an estate for life. If there is a charge on the devisee personally, or in respect of the property devised, of payments which may make him a loser, unless he take the fee-simple, in that case he is held to take the fee. That is clearly expressed by Lord Ellenborough in Doe v. Snelling (Ibid.), where the devise was: "Also I give and bequeath unto the said George Snelling and Sarah his wife" real and personal estate, "after having thereout first paid and discharged all my just debts and funeral expenses;" and Lord Ellenborough said, “We must read it as one entire sentence, beginning at the words, 'also I give and bequeath unto the said George Snelling and Sarah his wife,' &c., for the words, 'I give and bequeath,' occur only once. If then the sentence include the real as well as personal property, and the debts are to be thereout paid by the devisees, it differs this case from the case of Denn v. Mellor (5 T. R. 558; 2 B. & P. 247), and that class of cases where the land is devised only after payment of debts: for there the thing itself is not given to the devisee till after those charges have been first satisfied. But where the devisee is to pay the charge out of the land, he must first take the interest in the land. This brings the case within that of Doe v. Richards (3 T. R. 356), the doctrine and principle of which is right, though perhaps the words to which it was applied will hardly sustain the application, as was considered by many of the Judges on the decision of the case of Moor v. Mellor (2 B. & P. 252) in the House of Lords. That was a devise of lands, 'his legacies and funeral expenses being thereout paid;' and those words were holden to carry the fee, being considered the same as if the devisor had said, 'being by him (the devisee) thereout paid.' And if those words had been added the application of the doctrine would unquestionably [410] have been right." That is the very case now before me. "The doctrine, however, has been long established." In a previous part of his judgment he says, "Where debts or annuities are to be paid by the devisee at all events, out of the estate in his hands, the devisee must take a fee, otherwise the charge might be greater than the estate devised, and he would be a loser." In a subsequent part, again he says, "I am clear that the debts, &c., were personal charges upon the devisees in respect of the property devised to them.'

The case here is that three estates, A. B. and C., are devised to Joseph Windross, he paying out of A. an annuity to his brother David. It cannot be necessary, to prevent Joseph from being a loser by this gift, that he should take an estate in feesimple in estates B. and C. He cannot possibly be a loser, because the annuity is only charged on estate A.; and, if that should be exhausted, there is no charge upon the devisee Joseph in respect of the annuity. Even if he exhausts estate A. in paying the annuity he is no loser. The annuitant cannot come upon him for anything more, because it is out of that estate A. alone that his annuity is to be paid. Therefore, it is not necessary to give to Joseph the fee-simple of estates B. and C. in order to enable him to pay this annuity.

The true answer to the argument, that this would be giving a different construction to similar words in the same will, is that that is not the effect of such a decision, because there are words charging estate A. with an annuity, and there are no words of charge superadded to the devises of estates B. and C.

Construing each gift according to the whole tenor of the will, I think it is impossible to hold that Dove Acre is a ge-[411]-neric name by which the testator meant to describe all the subjects of his previous gift to Joseph.

Declare that the fee-simple of Dove Acre was devised to Joseph, but that the reversion after his death in the other estates devised to him forms part of the testator's general estate.

[411] MACRAE v. SMITH. PANTON v. SMITH. 1856.

Creditors' Suit. Staying Proceedings. Terms. Discovery of Assets. Payment into Court. On an application being made to stay a creditors' suit because of a decree obtained in an administration suit subsequently instituted by two of the executors against the third, as there was no evidence of the amount of assets received by the executors, and as it appeared that the creditor's case in the first suit depended on vouchers and documents in the hands of the executors, the Court ordered the motion to stand over until the executors had put in their answer in that suit. Semble, that a creditor whose suit in equity is stayed, as well as a creditor who is restrained from prosecuting an action at law, is entitled to have a discovery of assets possessed by the executors, and payment of the amount into Court.

These were two administration suits.

The first was a suit by creditors on behalf, &c., stating that the testator was indebted to them for money expended by them in repairing a ship belonging to the testator, at Moulmein, in the East Indies, where the Plaintiffs resided. The three executors and devisees in trust of the testator were Defendants. And the bill stated that the vouchers and documents relating to the expenses of such repairs were in the hands of the executors. Interrogatories had been filed and delivered; but no answer had been put in. The second suit had been since instituted by two of the testator's three executors against the third, and a decree had been obtained in this suit.

The Plaintiffs in Panton v. Smith now moved in these suits to stay all proceedings in the suit of Macrae v. Smith.

Mr. Rolt, Q.C., and Mr. Giffard, for the motion.

Mr. James, Q.C., and Mr. Hemming, contrà.

[412] The decree obtained is not a creditors' decree.

Even where there is such a decree, this Court only grants an injunction to stay a creditor from suing the executor at law upon the terms of the executor making an affidavit as to the funds in his hands, and paying the amount into Court: Paxton v. Douglas (8 Ves. 520). Moreover, the Plaintiffs in Macrae v. Smith cannot prove their claim in that suit, unless they obtain an answer from the Defendants, and discovery of the documents in the Defendants' hands. [Mr. Rolt, Q.C. They may examine the Defendants on oath, and make them produce documents.] [THE VICE-CHANCELLOR. I doubt whether a creditor, coming in under a decree, could obtain a discovery of documents from the parties in that suit.] Where additional relief beyond the mere administration decree is asked in the suit sought to be stayed the Court will not stay the suit as to such relief: Dryden v. Foster (6 Beav. 146), Budgen v. Sage (3 M. & Č. 683). At any rate, if our suit is stayed, the prosecution of the decree in the other suit should be given to us: Hawkes v. Barrett (5 Mad. 17).

Mr. Rolt, Q.C., in reply, cited Golder v. Golder (9 Hare, 276).

VICE-CHANCELLOR Sir W. PAGE WOOD. In the case of Clarke v. Lord Ormond (Jac. 122) Lord Eldon laid down the principle upon which these orders are made. He expressed some surprise that the Plaintiff in that case, who was a legatee, should apply, and intimated that it was the duty of the executors to make the application; and he afterwards said: "The first question is, what would be done if this application had been made by the executors and I [413] do not mean any reflection on them when I say that I think they ought to have made it. Ever since the case of Morris v. The Bank of England (Ca. t. Talbot, 217; 4 B. P. C. 287) it has been the settled doctrine of the Court that, where a decree has been obtained for payment of creditors, it is in the nature of a judgment for all; and the Court therefore will not permit any particular creditor, by proceeding at law, to disturb that administration of the assets which this Court, in the execution of that judgment for all the creditors, will decree;

and the Court not being in the habit of taking the word of anyone as to the amount of the assets or of the debts till it has a report finding what they are, and considering that equal justice must be done to all, will not in the meantime allow any to touch the assets. Even if the creditor has got a judgment before the decree, though he may come in and prove as such, he must not take out execution."

He subsequently said: "It afterwards appeared to me that many unrighteous proceedings were introduced by these suits; and I therefore laid down the rule that, when the executor applied for such an injunction, he should enable the Court, if in its discretion it should think fit, to order him to pay in the balance in his hands. It was then asked, Why did not the creditors make the executor set forth the balance in his answer, so as to enable a motion for payment of it to be made? But the answer to that was that the creditor was generally friendly to him; and that it was probably the common purpose of both that the money should remain in his pocket. The Court therefore called upon him to set forth the amount." Those observations apply in terms to a case where the bill is filed by a creditor; but the difference between that case and this is too thin for me to rely upon it; and I think that, in a case like this, where an executor obtains a decree for administration against his co-executors, that is a decree for the benefit of all the creditors of the testator. At the same time the Court, on an application for an injunction [414] to stay proceedings at law by a creditor, will order the executor to make an affidavit of the amount of assets in his possession, and to pay the balance into Court; and I cannot see why a creditor in equity is not entitled to the same relief.

Then, in this case, the Plaintiffs in Macrae v. Smith have made a case, which it appears from the bill depends on vouchers and documents which are in the hands of the Defendants in that suit, the executors of the testator. I do not think that it would be right that this suit should go on to the hearing; but I must order that the present motion should stand over until the Defendants have answered, and then I shall know who ought to have the conduct of this litigation.

[414] JOHNSTONE v. HALL. Feb., March 11, 1856.

[S. C. 25 L. J. Ch. 462; 2 Jur. (N. S) 780; 4 W. R. 417. See German v. Chapman, 1877, 7 Ch. D. 281; Holloway Bros., Limited, v. Hill [1902], 2 Ch. 617.]

Injunction. Contract. Specific Performance. Remainder-man. Nuisance.
Noxious Trades. Acquiescence.

In a case resting simply upon covenant, if the party seeking specific performance be entitled in possession, he has a right to the enjoyment of the property modo et formá according to his covenant; but if he be entitled in remainder only, he must shew that he has sustained some material damage by reason of the breach to entitle him to relief of this nature.

Demise of land for 999 years, at a yearly rent of £33 odd, and covenant by lessee not to carry on, or suffer to be carried on, in any building to be erected on the premises, any of several noxious or objectionable trades and employments, "or any other trade, business or employment whatsoever," but to use the premises solely for private dwelling-houses. Lessor died, having devised the premises to one for life, and to the Plaintiffs in remainder. Defendant, as sub-lessee, carried on upon the premises a school for girls. A bill for an injunction, living the tenant for life (who was not a Plaintiff), dismissed with costs, upon the ground that, having regard to the circumstance that the Plaintiffs were merely entitled in remainder, the relief prayed was too minute, there being no case of waste, but only a possibility of the respectability of the neighbourhood being in some measure affected; and the argument from acquiescence could not apply, the Plaintiff's having no right of re-entry.

But held, obiter, that in a gross case, e.g., a noxious trade, an injunction would have been granted, although the Plaintiffs were not entitled in possession.