allowing for subsequent deterioration, I am bound to conclude that £10,000 would exceed the value of the ship at the time of her loss.

It was said, "Why, then, did the Plaintiffs insure for so large a sum as £10,000?" But to that, I think, the answer was satisfactory, that, being under a contract which bound them to replace the ship immediately in case of her loss, the Plaintiffs were compelled to insure for such a sum as it would cost them to replace their ship. In so doing, there was no fraud on their part. They only did what is constantly done by parties insuring houses, furniture and other property in course of deterioration all which, from year to year, and after the lapse of many years, are habitually insured at the same price as that for which they were insured when new, without any allow ance for deterioration. This disposes of the argument that the Plaintiffs are estopped by the amount of the insurance from adducing evidence to shew that the price which the ship would have fetched at the [666] time when she was lost was less than the sum for which they had insured.

[His Honor then examined the evidence of the valuers, and concluded thus:]— Taking all the circumstances, therefore, into consideration, it comes to this, that Mr. Bailey estimates what the ship would have fetched at £5900, other valuers estimating it, some at £6000, others as low as £4500, or even £4000; and considering that this Act was passed in relief of the liability of shipowners, I adopt the estimate of Mr. Bailey, who was selected by both parties, as the true value of the ship within the meaning of the Act.

June 30. The Defendants, Swanzy and Kennedy, and several claimants who came in under the order, having established their respective claims, the cause now came on to be disposed of upon the question of costs.

Mr. Rolt, Q.C., and Mr. Cairns, Q.C., appeared for the Plaintiffs.

Mr. James, Q.C., and Mr. Cole, for the Defendant, Swanzy; and

Mr. Giffard, for the Defendant, Kennedy, claimed the Defendants' costs of the suit, and their costs at law of the actions stayed by the injunction. By the 514th section of the Act (17 & 18 Vict. c. 104) the Court had a discretion as to costs; and, in the exercise of that discretion, it would follow the ordinary rule adopted in such cases, and order all costs to be paid by the party who was eased by the proceedings which the Act [667] had authorised. Here, the Plaintiffs were the parties eased by the proceedings, and there had been no adverse litigation over which the Plaintiffs had no control. The Plaintiffs, therefore, should pay the costs.

Mr. Rolt, Q.C., in reply, denied that the shipowner was the only party eased by the Act. Besides, what relief the shipowner obtained under the Act was his by the true rule of right, and in conformity with the laws of all other nations, and was not to be looked upon as a favour conferred by the Act. In such a case the decision ought not to depend on the question who is eased by the proceedings which have been instituted.

VICE-CHANCELLOR Sir W. PAGE WOOD. I think the decision ought to depend upon the question who is eased by the proceedings which the Act has authorised to be instituted. And here it is clear that the Plaintiffs, as owners of the ship, are the parties who have been eased by such proceedings.

By the 514th section of the Merchant Shipping Act, 1854, in cases where liability has been incurred by any owner in respect of loss of life, personal injury, or loss of or damage to ships, boats or goods, and several claims are made or apprehended in respect of such liability, this Court is empowered, subject as there mentioned, to entertain proceedings at the suit of any owner for the purpose of determining the amount of such liability, and for the distribution of such amount rateably amongst the several claimants, with power to stop all actions and suits pending in any other Court in relation to the same subject-matter. By adopting the proceedings which the Act has thus authorised the shipowner is enabled to protect himself from as many [668] separate actions as there are claimants for compensation. If he thinks it for his benefit to stop all these actions, the Act enables him to do so in a suit instituted by him for the purpose. The owner only can institute the suit in which the Court can give relief under the 514th section. If he chooses to institute it he, as the party eased, is prima facie the party who should bear the costs.

If it were a case in which there had been adverse litigation between the claimants

amongst themselves, or any other special circumstance occasioning an increase of costs, and over which the Plaintiffs had no control, a question might be raised. But here there has been no such litigation. Here there has been nothing special occasioning costs over which the Plaintiffs had no control. The Defendants, as well as the other claimants, have established their claims in this Court; I must assume, therefore, that the Defendants would have established such claims in the actions they commenced at law; and, establishing their claims at law, they would have been entitled there to their costs. I must, therefore, order that all the costs be borne by the Plaintiffs.

By all the costs, I mean that the Plaintiffs must pay the Defendants their costs not only of this suit but also of the actions at law, which the Defendants would have obtained if the Plaintiffs had not restrained them, in order to have the amount of their own liability ascertained and distributed here; and the Plaintiffs must also pay the costs of all the other claimants who have come in under the order, and established their claims in this Court.

Ordered accordingly.

[669] WEBB v. BYNG. June 9, 1856.

[Affirmed, 8 De G. M. & G. 633; 44 E. R. 534 (with note); 10 H. L. C. 171; sub nom. Byng v. Byng, 11 E. R. 991 (with note).]

Devise of real estate to one and her children: Held, although there were children in esse at the date of the will, to create an estate tail; that being the only mode of carrying into effect the whole intention of the will.

The word "living" is sufficient to pass the advowson, but it may be restricted to the next presentation. The context must determine which is its meaning.

Devise to a minor of "the livings of Q. and C., should he like the profession and be qualified for them: Held, to shew an intention to confer on the devisee a personal benefit; therefore, that the devise was confined to a single presentation, and did not extend to the advowson.

Anne Cranmer, by her will in 1844, amongst other devises and bequests, gave as follows:-"I give to my great-nephew Henry Webb Byng the livings of Quendon and Chickney, should he like the profession and be qualified for them, or to William Cranmer Byng. .. I give in trust to my executors, for my niece Mary Anne Byng and her children, all my Quendon Hall estates in Essex, provided she takes the name of Cranmer and arms, and her children, with my mansion-house, furniture, plate, books, linen, &c., Archbishop Cranmer's portrait by Holbein, the Indian cabinet in drawing-room, and striking watch, and my diamond earrings and pins, as heirlooms with my estate."

The testatrix devised the residue of her real and personal estate and effects to Mary Anne Byng, and appointed the Plaintiffs her executors.

The testatrix died in 1853.

Mary Anne Byng died in the lifetime of the testatrix, leaving Alfred Molyneux Byng, her eldest son, Henry Webb Byng and six other children, who all survived the testatrix. William Cranmer Byng, another son of Mary Anne Byng, died in the lifetime of the testatrix.

Henry Webb Byng was an infant, aged about sixteen years.

The cause now came on for further consideration.

[670] Mr. Karslake appeared for the Plaintiff.

Mr. Cairns, Q.C., and Mr. Thring, for the Defendant, Alfred Molyneux Byng, contended that, upon the true construction of the will, the Quendon Hall estates were devised to Mary Anne Byng as tenant in tail; and that, Mary Anne Byng having died in the lifetime of the testatrix, the Defendant, Alfred Molyneux Byng, as her eldest son, was now entitled as tenant in tail of such estates.

They relied on the name and arms clause, and the gift of the heirlooms, as well as

upon the gift of the estate as one entire estate, as being inconsistent with the supposition that the testatrix intended the children of Mary Anne Byng to take either concurrently with her or as joint-tenants after her decease-inconsistent, in short, with any supposition except that the testatrix intended a simple descent from parent to child.

They cited Wood v. Baron (1 East, 259) and Doe v. Bradley (16 East, 399) to shew that the rule, inaccurately called the rule in Wilde's case (6 Rep. 16 b.), that, under a gift to A. and his children, if he have children at the time, they must take concurrently, is not an absolute and unyielding rule of law, but is liable to give way in order to carry out the general intention of a testator, as inferred from the whole of his will; and that although "children" may be a word of purchase, yet it may also be a word of limitation; and if, as here, the intention is inconsistent with any other interpretation, it must be held a word of limitation.

They contended also that, under the gift of the livings of Quendon and Chickney, having regard to the words which followed, "should he like the profession and be qualified [671] for them," Henry Webb Byng could not take more than the next presentation, even assuming him to comply with those conditions; and that the advowson passed as part of the lapsed residuary real estate to the heir at law.

Mr. Rolt, Q.C., and Mr. G. L. Russell, for the children of Mary Anne Byng, other than Alfred Molyneux Byng, her eldest son.

The devise of the Quendon Hall estates was a devise to Mary Anne Byng for life, with remainder to her children as joint-tenants in fee. "Children" is prima facie a word of purchase; and here, so far from containing anything to rebut that presumption, the will contains provisions amounting to evidence in its favour. The words "I give in trust" indicate that the testatrix contemplated successive interests, and the direction as to heirlooms is not inconsistent with successive interests, such as we contend for. The condition as to the name and arms of Cranmer is to be complied with by all the children; the Court, therefore, would expect a gift commensurate with the condition, and that all are to derive a benefit under it.

In Wilde's case there was no child in esse at the date of the will; and the only way in which the Court could avoid disinheriting the children was by construing the word "children" as a term of limitation, and giving an estate tail to the parent. Here, children were in esse at the time, and the testatrix took notice of the fact, providing for some of them nominatim.

[They cited on this point Mason v. Clarke (17 Jur. 479), a dictum of Lord St. Leonards in Heron v. Stokes (2 Dr. & W. 107), not overruled by the partial reversal of that decision in D. P. (9 Jur. 563), Crawford [672] v. Trotter (4 Madd. 361), Vaughan v. The Marquis of Headford (10 Sim. 639), Buffar v. Bradford (2 Atk. 220).]

Then, as to the livings, the word "living" is used, not only in common parlance but in Acts of Parliament, as equivalent to "advowson;" and the words which follow the devise of the livings may be satisfied by construing them as simply expressive of the motive of the gifts: the case being analogous to that of gifts of money professedly for the purpose of apprenticing a person to a particular trade, where, if he dislikes the trade, he may claim the money for advancement generally. Consequently, Henry Webb Byng is entitled to the advowsons.

A reply was not heard.

THE VICE-CHANCELLOR Sir W. PAGE WOOD. However bold the decision may appear, I must hold this devise of the Quendon Hall estates to have created an estate tail.

The rule as stated by Lord Hardwicke in Buffar v. Bradford (2 Atk. 220) is this: that the word "children," in its natural import, is a word of purchase and not of limitation; but that, where a contrary interpretation is necessary, in order to comply with the intention of the testator, there the word "children" will be held to be a word of limitation and not of purchase. The Court must look to the whole intention; and the question, therefore, in the present case is whether, having regard to the whole intention of the testatrix, I can carry that intention into effect, without holding this to be an estate tail.

[673] The testatrix's intention is expressed in these words, "I give in trust to my executors for my niece Mary Anne Byng, and her children, all my Quendon Hall

estates in Essex, provided she takes the name of Cranmer and arms, and her children, with my mansion-house, furniture, plate, books, linen, &c., Archbishop Cranmer's portrait by Holbein, the Indian cabinet in drawing-room, and striking watch, and my diamond earrings and pins, as heirlooms with my estate.'

То

According to the decisions since Wilde's case, the general rule is that, where there is a devise to one and her children, if she have children at the time, the word "children" is construed as a word of purchase and not of limitation, and the children take as purchasers concurrently and as joint-tenants with their parent. But that construction could not have been intended by the testatrix in the present case. hold that, in this case, the mother and her children were intended to take concurrently and as joint-tenants would involve this manifest absurdity, viz., that they must all live together in the same house, and jointly enjoy the various articles which the testatrix has given as heirlooms with her estate. This, therefore, very properly was not contended.

The contention was that the devise was to the mother for life, with remainder to her children as joint-tenants in fee. The only authority for such a construction is the case of Jeffery v. Honywood (4 Madd. 398), and even that has been overruled by Broadhurst v. Morris (2 B. & Ad. 1). Independently, however, of that consideration, what I chiefly rely upon is this, that the Quendon Hall estate-the subject of this devise is the estate by means of which the testatrix intends by her will to perpetuate the name of Cranmer; and if I were to hold that devise to have been a devise to Mary Anne Byng for life, [674] with remainder to her children as joint-tenants in fee, the estate would be divisible into eight separate estates, and, as the parties who take the property are also to take the name and arms, the result would be to found as many small families all bearing the name and arms of Cranmer, whereas the testatrix speaks of her estate as one and indivisible, and to be enjoyed in its entirety.

In rejecting such a construction in favour of one which will treat the word "children" as a word of limitation and not of purchase, I do not depart from the spirit of the rule in Wilde's case--the real rule in that case being that it is lawful, as Lord Hardwicke puts it, to construe the word "children as a word of limitation where the will necessitates such a construction. This is a case of that description, and as the only means of keeping the property, which the testatrix has described as her Quendon Hall estates, in one mass-which is clearly the general intention of the will-I am compelled to hold that, in this will, the word "children" is a word of limitation, and that the devise created an estate tail.

Then, as to the livings, the devise is in these terms: "I give to my great-nephew Henry Webb Byng the livings of Quendon and Chickney, should he like the profession and be qualified for them, or to William Cranmer Byng.'

Now, the word "living" is ambiguous. It is sufficient to pass the advowson. On the other hand, it may be restricted to a single presentation: the law does not determine which is its meaning, and the point must be ascertained from the context. Referring in this will to the context, it is clear that, by the word "livings," the testatrix intended to pass not the advowson but only a single presentation. The words "should he like the profession and be qualified for them," shew an intention to confer on the devisee a per-[675]-sonal benefit; and that could only be effected by the devisee being himself presented to the livings. I must, therefore, hold that the devise of the livings is confined to a single presentation, and does not extend to the advowson.

There must be a declaration that the Quendon Hall estates were devised to Mary Anne Byng as tenant in tail, and that the Defendant, Alfred Molyneux Byng, is now entitled thereto as tenant in tail. There must also be a declaration that, upon the true construction of the will, the Defendant, Henry Webb Byng, is entitled to be presented to the livings, provided he shall comply with the conditions mentioned in the will.

The opinion of the Court was asked upon the question whether the name and arms clause amounted to a condition precedent: His Honor thought it did not, there being no gift over; but said it was not necessary to decide the point, as the Defendant, Alfred Molyneux Byng, would take as heir at law of the testatrix, if not by the devise.

[676] ECCLES v. CHEYNE. July 1, 8, 1856.

[See Holyland v. Lewin, 1884, 16 Ch. D. 268.]

Wills. 7 Will. 4 and 1 Vict. c. 26, ss. 27, 33. Power. Appointment by Will to a Child. Lapse.

The enactment in sect. 33 of the Wills Act, 7 Will. 4 and 1 Vict. c. 26, that a bequest to a child of the testator, who dies in the testator's lifetime leaving issue living at the testator's death, shall not lapse, applies to a testamentary appointment made in exercise of a general power.

Distinction, in reference to this subject, between a general and a limited power. Testatrix, by her will in 1840, in exercise of a general power, appointed proceeds of real estate to a daughter who died in her lifetime, leaving issue living at the testatrix's death. Held, that the personal representative of the daughter was entitled.

By indentures of lease and release, dated July 1831, real estate, of which John Bibby was then seised in fee, together with certain personal estate of John Bibby, was settled upon trust to sell and invest the moneys to arise from such sale; and it was declared that, as to one equal undivided fourth part of the said moneys, and the securities thereon, the same should from time to time be invested upon trust to pay and apply the income and proceeds into the hands of Mary Bibby, the wife of John Bibby, or to such person or persons as she should from time to time, after the same should have become actually due, but not by way of anticipation, appoint to receive the same by any note or writing under her hand during her life; but such moneys should not be paid or payable to her until after the decease of John Bibby, and, until that event should happen, the moneys to be received as the income from the said onefourth share should be retained by the trustees, and should remain in their possession to be disposed of as Mary Bibby should appoint by deed or will; and from and after the decease of Mary Bibby, then the portion thereby given for her benefit should be assigned and disposed of to and for such uses, trusts, intents and purposes as Mary Bibby should, by her last will and testament, give, direct, limit and appoint; and for want of such direction, limitation or appointment, or when the same should be ineffectual, then such portion should be assigned or disposed of as the next of kin of John Bibby should order and direct.

Mary Bibby, by her will, dated 1840, after directing the payment by her executors of her funeral and testamentary [677] expenses, and the charges of the probate of her will, proceeded as follows:-" As to, for, and concerning all the rest, residue and remainder of my estate and effects, both real and personal, of which I may die possessed, or of which I have the power to devise, bequeath or appoint by will, I hereby give, devise and bequeath, limit and appoint the same, and every part thereof, unto and equally between my daughters Mary Eccles and Elizabeth Kidd, their heirs, executors, and administrators, absolutely and for ever."

Mary Eccles died intestate in the lifetime of the testatrix, leaving issue, who survived the testatrix. Letters of administration to the personal estate and effects of Mary Eccles were granted to the Plaintiff.

Mary Bibby died in 1846 and John Bibby in 1849.

The hearing of the cause is reported in Mr. Hare's Reports (vol. 9, p. 215).

The cause now came on to be heard on further directions.

Mr. Rolt, Q.C., and Mr. J. T. Humphry, for the Plaintiff.

The Plaintiff, as the administrator of Mary Eccles, is entitled to one equal moiety of the one-fourth part of the produce of the trust estates, by the settlement limited as Mary Bibby should appoint.

The 33d section of the Act 7 Will. 4 and 1 Vict. c. 26, provides that, where any person being a child of the testator, to whom any real or personal estate shall be devised or bequeathed for any estate or interest not determinable at or before the death of such person, shall die in the lifetime of the testator leaving issue, and any