moneys for the time being, in such manner and to such uses, intents and purposes as she by her will should appoint; "And in default of any such direction or appointment, and so far as any such might not extend, and subject thereto, then in trust to pay, assign and transfer the said trust moneys and premises, and the securities whereon the same might at the time be invested, and all interest, dividends and annual produce thereof," unto and amongst her children, as she by deed or will should appoint, and in default of such appointment, then amongst all her children equally. And in case there should be none living at her decease, then upon trust "to transfer and assign the said trust moneys to such person" as Miss Brydon should by will appoint, and in default, to such persons as would have been entitled to the same in case the said Miss Brydon had died without having been married and intestate. In January, 1849, Miss Brydon married the plaintiff Mr. Phillips. She died in April, 1857, leaving issue one child only, who was born shortly before her death. By her will, dated in April, 1856, she directed and appointed. that, after her decease, the trustees "should pay and apply the interest, dividends and annual proceeds of the 650l., or other the said trust moneys for the time being, unto the plaintiff during the term of his natural life, for his absolute use and benefit." And she further directed and appointed, that from and immediately after her decease, the trustees "should transfer and assign the 650l., or other the trust moneys and premises, and the securities whereon the same might be invested, and all interest, dividends and annual produce thereof, unto the plaintiff for his absolute use and benefit. Doubts having been entertained as to the effect of this appointment, this suit was instituted by Mr. Phillips, praying that the rights and interests of himself and the child might be declared. Mr. F. T. White, for the plaintiff. Mr. Cory, contrà. [His argument is stated and disposed of in the judgment.] Mr. Cole for the trustees. Mr. F. White, in reply. THE MASTER OF THE ROLLS: The question is, whether the power to appoint the dividends of a sum of 6501. is, in fact, a power to appoint the capital of the trust fund. Looking at the first power itself, what limit is there as to appointing the dividends? This lady is authorized to appoint the dividends and annual proceeds of the 6501. "in R.R.-VOL. CXXII. 3 PHILLIPS 2. BRYDON, [ *80 ] [ 81 ] 1858. July 27. Rolls Court. [ 81 ] as she such manner and to such uses, intents and purposes Then is it cut down by what follows in the deed? *In default of appointment, the "trust money, and the interest, dividends and annual produce," are given to the children as she shall appoint, and in default equally. There is nothing in this inconsistent with a previous general power of appointment; for the second power always assumes, that there has been no previous absolute appointment. Then comes the clause which creates the difficulty, which is the direction, that if no children should be living at her death, then "the trust moneys" are to be transferred to such person as Mrs. Phillips should by will appoint. Mr. Cory asks, what possible object could there be for giving Mrs. Phillips a general power of appointing the whole fund by will, and after intermediate limitations, to give her a second power to appoint the capital by will? From thence he argues, that the first power must apply to the dividends only, and the second to the capital, for otherwise the second would be mere surplusage. I think, however, that this is not sufficient to control what goes before, and that if it were so intended, it ought to have been expressed in more distinct terms. I am, therefore, of opinion, that I cannot cut down the first-mentioned power. By her will she appoints the dividends to her husband for life, and afterwards directs the trust moneys to be transferred and assigned to him for his absolute use. She, no doubt, was informed, that there was a doubt whether the first power did authorize her to appoint the capital, and therefore she executed the two powers by her will, intending to give everything she could to her husband, so that if one failed the other might operate I am of opinion, that a declaration must be made, that the will is a good appointment in favour of the plaintiff absolutely. GOWER v. TOWERS. (26 Beav. 81-82.) Two bequests were made to the same person in successive sentences, and, in the latter, the words "for life" were added: Held, that the limitation applied to the second gift only, and that the legatee took the first absolutely. THE testator by his will, among other bequests, gave as follows: "I next give and bequeath to Miss Jane Longueville Antt, my dear wife's sister, the interest of all that sum of money which I came into at the death of John Williams, Esquire, now standing and being in the Three per Cents. Reduced Annuities, amounting to the sum of 2,6431. and a fraction And I also give to Miss Jane Longueville Antt the interest of all that half of my dear wife's property, should I be the longest liver, which, according to the settlement made on my marriage, will come to me by right of that deed, for and during the term of her natural life, for her own and separate use and control, notwithstanding she may be married, and her receipt to be a good and sufficient discharge, notwithstanding her coverture." The question was, whether Miss Antt took the 2,6431. for life or absolutely. The word "And" commenced with a capital letter in the probate. Mr. Follett and Mr. Elderton, for the plaintiff. Mr. Selwyn, Mr. Nugent, Mr. Hoare, Mr. Lloyd, "Mr. Fitzhugh, Mr. Teed, Mr. Hallett, Mr. E. Smith and Mr. Fooks, for the defendants, contended, that she took a life interest. They cited Richards v. Baker (1), Rawlings v. Jennings (2), Blann v. Bell (3). Mr. W. H. Clarke, for the representatives of Miss Antt, wast not called on. THE MASTER OF THE ROLLS: I am of opinion, on this will, that Miss Antt took an absolute interest in the 2,6431. It is a separate and distinct gift from the one which follows. "I If the sentence had run thus: "I give to Miss Antt the 2,6437., and also the interest of my wife's property, for life," then there would have been no doubt whatever that the words "for life" would have had the effect of governing the whole sentence; but here the testator makes two separate and distinct gifts. give" 2,6437., “and I also give" half my wife's property. Besides this, the second bequest is given for her separate use, which restriction, according to plain and grammatical construction, does not apply to the first legacy. I am of opinion, she took an absolute interest in the first fund. (1) 2 Atk. 321. (2) 9 R. R. 137 (13 Ves. 39). (3) 95 R. R. 318 (2 D. M. & G. 775). 1858. July 28. 1858. July 26, 31. 1858. July 31. Rolls Court. [ 87 ] [ *88] GWYER v. PETERSON. PETERSON v. PETERSON. (26 Beav. 83-84.) The common administration decree having been made in a suit by one of the next of kin, a second suit was instituted, six months after, by another next of kin, praying additional relief. The COURT stayed the second suit, on the defendant in the first suit undertaking not to object to any additions to the decree which the Judge in chambers might think reasonable. IN RE KINGSLEY'S TRUST. (26 Beav. 84-87.) A wife whose husband had deserted her obtained an order for protection under the 20 & 21 Vict. c. 85, s. 21: Held, that she was entitled to payment of a fund in Court representing a legacy bequeathed to her, after the commencement of the desertion but before the date of the protection order. [The MASTER OF THE ROLLS on considering the terms of the Act (1) made an order for payment of the fund to the petitioner (2).] IN RE GREGSON (3). (26 Beav. 87-89.) Solicitors employed by the husband to prepare a marriage settlement Held not bound to produce it to the trustees until their bill had been paid. ON the marriage of Mr. and Mrs. Evans in 1857, Messrs. Gregson, the solicitors of Mr. Evans, were employed by him to prepare the settlement. They accordingly did so, and it was executed by all parties. Their costs amounted to 45l. 14s. 10d. These costs still remained unpaid, and Messrs. Gregson retained the settlement in their possession. Part of the settled property consisted of a house subject to a mortgage for 300l. After the marriage, the mortgagees, under a power of sale, sold the property, and after deducting the amount due to them, there remained a balance of 160l. They were willing to hand this balance over to the trustees of the settlement, upon being satisfied of their right to receive it, *and they, for this purpose, required the trustees to produce the indenture of settlement for their inspection. Messrs. Gregson refused to produce the settlement, until they had been paid their bill of costs for preparing it. The trustees presented the present petition, insisting, that the solicitors had no lien on the settlement as against them, and praying, that Messrs. Gregson might be ordered to deliver it up to them, or at all events, to produce it for inspection, at such (1) See ss. 21 and 25. (2) See Cooke v. Fuller, post, p. 43, and the note to In re Rainsdon's Trusts, 113 R. R. 413. (3) KEKEWICH, J. declined to follow this case in In re Lawrence, Bowker v. Austin [1894] 1 Ch. 556, 63 L. J. Ch. 205, 70 L. T. 91. times as should be reasonable, for the purpose of enabling them to receive the 1601. from the mortgagees, and execute the trusts of the settlement. But if this Court should be of opinion, that the petitioners ought to pay the 45l. 148. 10d., then, that if necessary, the bill of costs might be taxed, and that the petitioners might be allowed to pay the same out of the 1601. Mr. R. Palmer and Mr. Hoare, in support of the petition: The solicitors were never employed by the trustees and have no claim against them for costs, they have, therefore, no lien as against them. Upon the execution of the settlement, new rights and interests arose in favour of third parties, which the solicitors are bound to regard, irrespective of their claims against. Mr. Evans. Their client, Mr. Evans, would be bound to produce it, and they, who are merely his agents, are under the same obligation. It is quite settled by authority, that the lien of a solicitor against his client is always subject to the rights of third parties, and the solicitors who prepared this instrument cannot be permitted to obstruct the trustees in the performance of their duties under it. and thus involve them in serious *responsibilities. (They cited Pelly v. Wathen (1), Furlong v. Howara (2), Hall v. Laver (3), Hope v. Liddell (4), Brassington v. Brassington (5).) Mr. Selwyn and Mr. J. Sidney Smith, for the respondents, were not heard. THE MASTER OF THE ROLLS: I cannot make the order for production, and I think that some of the cases cited are rather against than in favour of the applicants. These trustees claim under the settlor, against whom the solicitors are entitled to a lien for their costs. They are not bound to produce the deed to their client, or to any other persons. claiming under him, until they have been paid their costs. The only order I can make is this: On the trustees undertaking to pay the solicitors the costs of preparing the settlement, out of the moneys to be received, let the settlement be produced, and, on full payment of such costs, let the solicitors deliver over the settlement to the trustees. (1) 91 R. R. 7 (1 D. M. & G. 16). (4) 109 R. R. 149 (7 D. M. & G. 331). (5) 53 R. R. 50 (1 Sim. & St. 455). In re GREGSON. [ *89 ] |