UPTON 2. LORD FERRERS. fore he meant to give it to him. If he had given all to the eldest son, with that exception, that would be like the great case, that everyone has in his mind, of a devise after the death of the devisor's wife to a person, not his heir at law. A private man would say undoubtedly, that he must have intended, his wife should take for her life: but courts of law have always said, they cannot in that case make the inference, that, if the devise after the death of the wife was to the heir at law, they would make. Under these circumstances I must hold, that this omission in this will is not necessarily to be supplied. There is only a declaration, that the testator had not brought himself at that time to give away these jewels: but there is not a sufficient ground for me judicially to declare, that he had disposed of them to his grandson by his will. The point as to the claim of the Journals of the House of Lords was not determined: but the MASTER OF THE ROLLS intimated an opinion, that Lord Ferrers was entitled to them; observing, that a Bishop gives a receipt for the Journals for his See; and upon the death of a Peer the subsequent volumes only are delivered to the next Lord. 1801. March 2, 4. Rolls Court. ARDEN, M.R, [ 806 ] [807] KING v. TAYLOR. (5 Vesey, 806-810.) A clause of survivorship between two legatees, if either of them should die, confined to a case of lapse, and did not prevent the legacies vesting. ANN REEVES by her will, after directions concerning her funeral, &c., proceeded thus: "2ndly I give and bequeath to my dearly beloved son John Charles Reeves when he has attained the age of twenty-three 1501. Stock in the 5 per cent. Navy Annuities being a joint stock in the names of Ann Reeves and Thomas Foster and likewise 3501. Stock in the 3 per cent. Reduced Annuities in the aforesaid names likewise all my household goods plate and china that † 13 Hen. VII. Vaugh. 263, Gardner v. Sheldon. I shall be possessed of at my decease likewise the box of linen and plate which is at Mr. Taylor's, West Smithfield. 66 3rdly, I give and bequeath to my dearly beloved daughter Ann King wife of James King now living at Beverley in Yorkshire all my wearing apparel likewise 50l. Stock in the 5 per cents. aforesaid and likewise 3501. Stock in the 3 per cent. Reduced Annuities being a joint stock in the names of Ann Reeves and Thomas Foster and I do desire that the 50l. in the 5 per cent. and the 3501. Stock in the 3 per cent. which I bequeath to my daughter if her husband be living be transferred to my daughter Ann King and to Mr. Joseph Taylor of West Smithfield in the parish of St. Sepulchre's London and to Mr. Thomas Foster of Oxford Arms Passage in the parish of Christ Church Newgate Street London I do nominate and appoint the above Joseph Taylor and Thomas Foster in trust with my daughter for the aforesaid 4001. Stock with the interest to be managed for her benefit as they three shall agree to her advantage I give and bequeath whatever interest may be due to me jointly between my aforesaid two children Item I give and bequeath to the above Joseph Taylor and Thomas Foster 11. 1s. each for a ring Item I do will and ordain that if either of my children should die the surviving shall have what I have left to the other." The testatrix then appointed Foster her executor. She died soon after the execution of the will. Ann King survived her; and died on the 9th of March, 1800. The bill was filed by her husband and administrator, claiming the remainder of the 4001. stock bequeathed to her; the trustees having in 1795 sold out part, and paid the money to Ann King at the desire of her and the plaintiff. The defendant John Charles Reeves, as having survived his sister, claimed her share under the will. Mr. Piggott and Mr. Cox, for the plaintiff : This legacy was a vested interest in the plaintiff's wife; and upon the whole will the clause of survivorship must be taken to refer to the event of death in the life of the testatrix, in case of a lapse. KING v. TAYLOR. I am much inclined to think it impossible to raise any judicial doubt upon this case; for repugnancies would arise from the construction of the defendant. This is perfectly distinguishable from all the cases, upon the words "in case of, if it should happen," &c.; for here is a specific time pointed out, at which it appears evidently to be the intention, that the legatee should be put in complete possession of the legacy; which must be expunged, and declared not to operate to any intent whatsoever, and to have been put in for no purpose, upon the defendant's construction. The disposition in favour of these children preceding that clause is without any limitation, or intimation, that they are to be prevented from the full enjoyment of it; or, that if either should die leaving children, that share should not go to them, but to the survivor. Then comes this clause. I do not recollect, whether these precise words "if either of my children should die" have occurred. Trotter v. Williams + is in favour of the plaintiff the other cases, as far as they have gone, are with the defendant. I do not agree with the argument for the defendant in distinguishing this case from Trotter v. Williams. It is directly in point; and almost exactly the same as the present. But subsequent cases have occurred; in which words very similar to these have been confined to the death of the party. The first case is Billings v. Sandom; upon which there could be no other construction than that put by Lord THURLOW. There was nothing upon the face of the will to restrain it to dying in the life of the testator, to prevent a lapse; which will not be supposed the intention, unless there can be no other. The next case is Nowlan v. Nelligan.§ The words in these cases are not "if he should die," which is a very extraordinary condition to creep into any will, but "in case of his death;" which has more reference to the time than the other expression. § 1 Br. C. C. 489. † Pre. Ch. 78. 1 Br. C. C. 393. These cases were much relied upon in Lord Douglas v. Chalmer, the last case upon this subject; which was determined by the LORD CHANCELLOR; who upon a rehearing adhered to his opinion. His Lordship's reasons certainly do not apply to this case 1st, What was naturally to be considered the intention: 2ndly, the consequence of the construction contended for would have been to give the absolute interest to Lord Douglas; for there was no qualification, restraining it to the separate use; and the children were evidently the fixed objects of the benevolence of the testatrix. The words in that will did not naturally mean a given time; and the general intention most probably would be better effectuated by the contrary construction than by adding to it, and inferring those words. The LORD CHANCELLOR after considering all the cases continued of the same opinion; shews, how the case of Lord Bindon v. Lord Suffolk, 1P. Wms. 96, applied to a different subject; and says, in Trotter v. Williams the construction was inevitable; and it was only providing against a lapse. It was no more so there than in this case. I say the same here. The legacy of the defendant vested at the age of twenty-three; and it would be totally inconsistent to make that an interest for life only, and to expunge what precedes these blind words. The LORD CHANCELLOR then comments upon Nowlan v. Nelligan; and concludes, that upon the will before him Lady Douglas took only an interest for life. This case comes up to Trotter v. Williams; and is by no means affected by either the decisions or the reasoning of the other three cases; and the ground of my decision is, that the construction, that these words mean, whenever the death of either shall happen, would be totally inconsistent with the rest of the will. The conclusion is, that there was an absolute interest in the daughter at the death of the testatrix; and in the son at the age of twenty-three; and as to the former it is put into the † Lord Douglas v. Chalmer (2 Ves. Jun. 301) was "decided upon its own special circumstances, and appears never to be cited except for the purpose of being distinguished," per PAGE WOOD, V.-C., in Schenk v. Agnew, 4 K. & J. at p. 406. It KING v. TAYLOR. [ *810 ] KING V. TAYLOR. hands of trustees by words, the construction of which must be, that it is to her separate use. 1801. March 9. Rolls Court. ARDEN, M.R. [ 818 ] [ *819] GUEST v. HOMFRAY. (5 Vesey, 818–824.) Specific performance refused on account of the laches of the plaintiff, the vendor. A small incumbrance, which may be the subject of compensation, is no objection to a specific performance. Possession of a house by delivery of the keys. UPON the 31st of January, 1798, the plaintiff entered into an agreement in writing to sell to the defendant an unfinished house in Cardiff in fee for the sum of 800l., payable by instalments. At the execution of the agreement the keys were delivered to the defendant and he looked over the house. : On the 1st of February he went to Bath; where he stayed till April. Then finding that no abstract had been delivered, he called for an abstract; which was delivered upon the 18th of April. Objections were taken to the title upon that abstract: 1st; that no title appeared farther back than 1782: 2ndly; it did not appear, what estates two persons of the name of Richards had: 3rdly; a person, named Priest, stated to have conveyed in 1790, was at that time an infant: *4thly; several married women were stated to have conveyed in 1796; and there ought to have been fines. The defendant took another house in Llandaff; and refusing to perform his agreement with the plaintiff, the bill was filed; praying a specific performance; and charging, that the defendant's reason for refusing to perform the agreement was, that he had taken the other house. The answer stated the defendant's reason for declining to complete the agreement to be the plaintiff's neglecting to make a title. In support of the bill it was proved, that upon the 5th of April, 1798, the defendant went to look over the house at Llandaff; and upon the 2nd of April he told the landlord, he should like to become his tenant, provided he could get rid of |