Page images

against H. T. Lowry Corry, as executor of Armar, April 17.-In this case, his Honour, after reEarl of Belmore. The defendant Auchinleck not ferring to the cases of Clarke v, Lord Ormonde

, having proved his demands under the decree in Rouse v. Jones, (1 Ph. 462, and also 1 Ph. 466; the first cause, on the 30th of October, 1848, a and the statute, 5. Geo. 2, c. 5, s. 8, said he cons. supplemental bill was filed, by which he was made dered he was justified, on the authority of Clarke a notice party under the fifteenth general order, v. Lord Ormond, in granting the injunction, and and was served with notice, and not having entered made the following order :-"Be it so as to the rean appearance, a memorandum was entered, pur- straining part of said notice, and the said D. Au. suant to the sixteenth general order. Notwith- chinleck having had notice on the 13th of March

, standing these proceedings, Mr. Auchinleck issued 1848, of the decree to account in this cause

, bearing a writ of fe fa de bonis testatoris directed to the date the 15th of February, 1846, and having taken sheriff of Dublin, and on the 18th of December, proceedings against the defendant

, the Right Hon. caused notice of speeding an enquiry before said H. P. L. Corry, and marked judgment by defaule, sheriff to be served on H. T. Lowry Corry, to as- and issued the fi. fa. against the goods of Somerset certain whether goods and chattels which were Earl of Belmore, deceased, after notice of said of said Somerset, Earl of Belmore, sufficient for the decree let said Daniel Auchinleck, pay to said purposes of said writ of fi fa came to the hands of defendant the costs of this motion, when taxed, &c." said H. T. L. Corry. From the affidavit of Mr. Lowry Corry's solicitor, it appeared that there were

MURPHY 0. BALFF.–Feb. 27. judgment and other debts outstanding against Somerset, Earl of Belmore, to the amount of more

Practice.Production of documents. than £100,000, and that several of said judgments The bill in this cause was filed to raise the amount were prior to that vested in the defendant Auch- of a judgment, obtained, as of Michaelmas Terna, inleck. Mr. Auchinleck by his affidavit stated that 1832, against Michael Balfe the elder, and Michael he was a creditor by judgment of Somerset and Balfe the younger, and for an administration of Armar, late Earls of Belmore, to the amount of be- their real and personal estates respectively. tween £40,000 and £50,000.

Mr. Hughes, Q.C.with bim Mr. Deasy, Q.C.moved Mr. Lloyd, on behalf of the defendant, H. T. L. for the production of various title deeds and family Corry, moved that the defendant, D. Auchinleck settlements, admitted by the answer of the defend. might be restrained from further proceedings at ant James Balfe to be in the possession of his law, on the writ of fi fa sued out by him against solicitor.--No objection was made in the answer to the goods of Somerset, late Earl of Belmore, and their production. that he might be directed to come in and prove Mr. Lawless resisted the motion as to some of under the decree in this cause, the several judg- the deeds, on the ground that the defendant was ment debts due to him ; and relied upon the cases only expectant tenant for life, and that John Breen of Vernon v. Thelusson, (1 Phil. 466); Kirby v. a minor, the party in whom was the first vested esBarton, (8 Beav. 45); Dyer v. Kearsly, 2 Mer. tate of inheritance, was not before the Court; and 482); Clarke v. Lord Ormonde, (Jac. 108); Rouse cited Glover v. Hall, (2 Phi. 484.) v. Jones, (1 Phil. 462.)

MASTER of the ROLLS---This point oceurred in Mr. Sheil

, Q.C. and Mr. Deasy, Q.C. for defend. Dundas v. Blake, (9 Ir. Eq.640, R.; S. C. 10 Ir. ant Auchinleck, contended that the court should Eq. 260, C.) where I decided, in a suit affectnot deprive the defendant of his legal advantage, ing the inheritance, that in the absence of Price v. Evans, (4 Sim. 514); Kent v. Pickering, tenant in tail, I could not, on the admission of the (5 Sim. 569); Leigh v. Parke, (1 Keene, 714); tenant for life, order the production of a family and contended in the cases cited there was no settlement. The case subsequently went before judgment, except in the cases in Beavan.

the Chancellor, and he ordered its production Mr. C. Henderson in reply.-The judgment is Sitting here, I am bound by that decision, although de bonis testatoris, and the enquiry is as to the I adhere to the view I expressed in my judgment assests of the testator. Dyer v. Kearsly, (2 Mer. in that case, which, I think, is in accordance with 482.) In Clarke v. Lord Ormonde, Lord Eldon English decisions and plain principles of justice. said if the judgment was de bonis testatoris it would be a clear case for an injunction.

LINDSAY v. LINDSAY–March 12. Jan. 18. Mr. B. Lloyd. The statute law in Bill stated, that in 1838, J. W. made a will

, that this country, 5 G. 2, c. 4, puts the case of judg in 1845 he made another will, by which the ments against executors on a different footing from former was revokedthat in 1846 the end what they are in England; for such judgments in will was destroyed, by the direction of said J. W, this country are in fact only initiatory, until an in and in 1848, İ. W. died intestate, and plaintiff

, quiry is held under that statute before the sheriff, as heir-at-law, entered into possession of all his and no execution can be taken out against the exe real estates, and prayed that the evidence of the cutor until the sheriff returns a devastavit, which witnesses to the will of 1845, and of the person be cannot do if there are any assets, whereas in who destroyed same, might be perpetuated. Plea, England the plaintiff himself merely suggests a that there were tenants in possession of some of devastarit ; so that this Court, by stopping that the real estate who had not paid rent to, or inquiry of which notice has been given, but has not acknowledged plaintiff, and the matters in dispute yet commenced, can prevent the judgment from could be immediately tried by action at lax being rendered final against the executor. Egan against same. Held, that the plea should be v. Baldwin, (1 Hog. 195, Yeo. & B. Ex. Pr. 394.) allowed.

The bill in this case stated, that John Lindsay will, and its subsequent destruction-that their being, in the year 1838 and until his death, seized testimony might be perpetuated and preserved. in fee of the house and demesne of Laughry, the To this bill, the defendant (H. H. Lindsay) manor of Lindsay, and other estates in the county pleaded-That on the death of the said J. Lindsay, Tyrone, on the 3rd day of April, 1838, made his on or about the 17th of August, 1848, she went will, and thereby, after some specific legacies, de- into possessiou of the said mansion-house and devised to his wife and her heirs all the lands of mesne, under the will of said J. Lindsay, bearing which he should die possessed, subject to the pay- date the 3rd of April, 1838_that she obtained ment of his just debts, and he appointed his said possession of the title deeds relating to said estates, wife executrix thereof-that on the 5th of Decem- and remained in possession of said, house and ber, 1845, said John Lindsay made another will, demesne, and title deeds, &c., until the 27th of whereby he demised to his uncle, F. Lindsay, all October, 1848—that on said day, plaintiff came, his estates, remainder to his son, subject to certain with several persons, and took forcible, possession legacies, and, amongst, others, £700 per annum to of said house and title deeds, and since remained his wife, as already provided for her jointure, and in possession thereof-that the remainder of the appointed a person named John White executor real estate of which said J. Lindsay died seized, thereof. The bill then stated, that said last-men- were in the possession of several tenants, some of tioned will was all in the hand-writing of the said whom held their lands by lease, and others as John Lindsay, and was read by him before its exe- tenants from year to year--that all said tenants cution, and his signature thereto was acknow- paid rent--that said tenants have not paid to plainledged by him in the presence of two witnesses, tiff the rents which accrued due since the death of John Church, of, &c., and William Macan, who said J. Lindsay, nor have they acknowledged attested same, by the desire of the said John plaintiff, by attornment or otherwise, as entitled to Lindsay-that some time after said will was exe- receive same, and therefore plaintiff is not in poscuted, it was delivered by said J. Lindsay to said session of all the real estate of which the said John White, the executor named therein, to be kept J. Lindsay died seized. The plea then specified by him, who several times read same, and which the names of some of the said tenants, and the remained in his sole possession—that said J. Lind- rents payable by them who refused to acknowledge say, on the 1st of April, 1846, came into the room plaintiff, and proceeded to state, that plaintiff of the said John White, and, after some conversa could, by action at law against said tenants, forthtion about some of the bequests in said will, in with try the truth of the several matters in bill which said John Lindsay expressed an intention of stated, with respect to which plaintiff alleged that altering same, or making a new will, said John the subscribing witnesses to the will in bill menWhite, in the presence of the said J. Lindsay, and tioned, and John White, were the only witnesses, by his direction, destroyed said will in the fire- and could thereby immediately assert the right of that this was done with the intention of revoking plaintiff to the real estates of which J. Lindsay same-that after the destruction of said will, said died seized, and that the court ought not to perpeJ. White expressed a wish to see J. Little, a soli- tuate the testimony of the said witnesses, and the citor, for the purpose of preparing another will, plea concluded with the usual averment. but said Little did not attend that J. Lindsay Mr. Longfield, Q.C., and Mr. Dobbs, for the plea. died on the 7th of August, 1848, seized in fee of -In order to maintain this bill, the plaintiff must said manor, lands, &c., without having made any shew that he cannot try the validity of the will by other will

, and without having re-executed said any proceeding at law; but it is admitted that there will of the 3rd of April, 1838, whereby he died are several tenants who have not paid rent to, or intestate-that said J. Lindsay had no issue, and acknowledged the plaintiff; therefore, by action for his father died in the lifetime of said J. Lindsay, rent against them, this question may be immeand plaintiff, as eldest brother of his father, was diately tried, and testimony should only be perpeheir-at-law of said J. Lindsay, and entitled to all tuated in those cases where the plaintiff cannot, the estates of which he died seized that shortly by any means, assert his rights, Dew v. Clarke after the death of said J. Lindsay, plaintiff entered (i Sim. & St. 108). The testiinony cannot be used into possession of said house and demesne, and of till after the death of the witness, and if he swear the other real estates of which J. Lindsay died falsely, he must go unpunished, Angell y. Angell seized, and was then in possession thereof that (1 Sim. & St. 89). Harriet H. Lindsay, the widow of said J. Lindsay, Counsel also relied on Bechinall v.Arnold (1 Vern. claimed said estate, under the said will of the 3rd 354), Parry v. Rogers (ib. 441), Brandlyn v. Ord, of April, 1838. The bill-after alleging several (1 Átk. 571), Butcher v. Butcher (1 Man. and Ry. pretences by said H. H. Lindsay, and that she 221), Kirkman v. Andrews (4 Beav. 558). refused to try whether said will of 3rd of April, March 13.-Mr. F. Fitzgerald, Q.C. and Mr. A. 1838, had been revoked until after the death of Henderson for the bill.-The preservation of the the witnesses to the will of December, 1845, or of plaintiff's right depends on the testimony of a the said John White, who could alone prove the single witness; and the objections made on the contents of said will, and its destruction-prayed, other side would apply, with equal force, to every that plaintiff might be at liberty to examine the bill to perpetuate testimony. By not demurring witnesses, with respect to the execution and attes- the defendant admits there is a proper case made tation of said will of December, 1845, and the by the will, and the facts stated in the plea are not sanity of the said J. Lindsay at the time of making sufficient to disentitle the plaintiff to relief; for, as same, and with respect to the contents of the said to the lands in the possession of the plaintiff, no

action can be brought; besides, the plea does not account.” His Honour also referred to Phillips on state that the tenants refuse to pay rent,

on the Evidence, 8 ed. 514, and Hard. 472, and expressed ground that the plaintiff's title is invalid, or that some doubts, as to whether the judgment against they acknowledge the title of the defendant ; and the tenant would be evidence against the defendant

, even by such an action, the question in dispute He then said, there was another ground in support could not be decided. Counsel referred to Bech of the plea stated by Mr. Longfield, which was of inall v. Arnold (1 Ven. 354, and Mitf. E. P., last some importance. After the death of J. Lindsay

, ed. 324).

the defendant entered into possession of the house Mr. Longfield, Q.C., in reply, contended that the and demesne, and remained until the 27th of question in dispute could be tried by an action of October; and during that interval the plaintiff trespass for mesne rates, and relied on Butcher v. could have brought an ejectment against the de Butcher, (1 Man. & Ry. 221.)

fendant, and tried the question in this manner ; but, April 17.-The MASTER OF THE ROLLs, after instead of doing so, the plaintiff took foreible posalluding to the form of the pleas, upon which his session of the premises. His Honour said he conHonour gave no opinion, as the question was not sidered that a party should not be permitted to argued, and also to the alteration of the law as take advantage of his own wrong; and, as after to the revocation of wills effected by the late the 1st of May ejectments could be brought against statute, upon which there was not any point raised, the tenants, and the question tried at the next said — The point in this case is, whether part of Assizes, he was of opinion the plea should be althe lands, being in the hands of the tenants, who lowed. have not attorned or paid rent, the question can be decided at law; or whether plaintiff can sustain a

EQUITY EXCHEQUER. bill to perpetuate testimony. His Honour then Dorcus AND ANOTHER v. Doherty April 23. alluded to the case of Angell v. Angell (1 Sim. and

Construction of Will-Words sufficient to pass St. p. 89), where the Vice-Chancellor says, “ The

legal estate in Mortgaged Property. jurisdiction which Courts of Equity exercise to perpetuate testimony is open to great objection ; A testatrix, who died possessed of a mortgage in first, it leads to a trial on written depositions, which freehold lands, after reciting that she was pasis much less favourable to the cause of truth than sessed of several sums of money lent and advanced the viva voce examination of witnesses, but, what

to several persons, and charged upon freehold and is still more important, inasmuch as those written other lands, gave and devised the same unto & depositions can never be used till after the death D., and G. H. O., upon the several trusts therein of the witnesses—and are not, indeed, published mentioned, and after giving several pecuniary till after the death of the witnesses it follows, and specific legacies, proceeded thus I leave dil whatever perjury may have been committed in

the rest, residue, and remainder of my property, those depositions, it must necessarily go unpunished,

of what nature or kind soever, I may die possessed and this testimony has, therefore, this infirmity,

of, to the said G. H. O, in trust for the children that it is not given under the sanction of the penal

of Wm. 0.Held, that the legal estate in these ties which the general policy of the law imposes mortgaged premises passed to S. D. and G.H.O. upon the crime of perjury. It is for these reasons By bill filed to foreclose, &c. a mortgage of certain that Courts of Equity do not entertaio bills to per- lands held for lives renewable for ever. The bill petuate testimony generally, for the purpose of stated a mortgage bearing date the 14th of Febru. being used upon a future occasion, unless where it ary, 1838, whereby one Arthbutpot Emerson conis absolutely necessary to prevent a failure of veyed, by way of mortgage, certain freehold lands justice. If it be possible that the matter in ques in the county of Donegal, to Anne Cunningham. tion can be made the subject of immediate judicial Anne Cunningham made her will, bearing date the investigation, no such suit is entertained.” His 4th of February, 1847, in the following terms Honour said, that if judgment were obtained in an “Whereas I am possessed of several sums of money action against the tenant, it would still be ques. lent and advanced to several persons, and charged tionable whether it would be binding on the de- upon freehold and other lands. I give and devise fendant, and alluded to the case of Dew v. Clarke the same unto Solomon Dorcus, and G. H. O'Neill," (1 Sim. & Stu. 108), in which it was argued, on upon the several trusts therein mentioned; and after the part of the plaintiff , that there were outstand- giving several specific and pecuniary legacies

, proing terms which prevented actions of ejectment ceeded thus_“I leave all the rest, residue, and from being brought; and on the judgment in that remainder of my property, of what nature and kind case, Sir J. Leach says, (page 114), “ It appears to soever, I may die possessed of, to the said G. H. me that this bill makes out no case to perpetuate O'Neill

, in trust for the children of W. N. ONeill;" testimony. Although it were true that the validity and S. Dorcus and G.H.O'Neill were appointed exof the will could not, by reason of the lease, be ecutors, and proved the will accordingly. The only immediately tried by the devisees in trust, yet it question in the cause was whether the legal estate may be immediately tried by an action for rent in the mortgaged premises was vested under the agaiust the tenant. "Testimony can be perpetuated will in Dorcus and O'Neill, or whether the beir-atonly where by no means the plaintiff can presently law of the mortgagee was a necessary party to the assert his title to the property. I must, therefore, suit. reject altogether the prayer to perpetuate testi Tombe, Q.C., & Mr.T.K. Lowry, for the plaintiff

, mony, and consider the bill as if it were not in- contended that the legal estate in the mortgaged preserted, and not, therefore, multifarious on that I mises, passed under the will to Dorcus and O'Neill


The rule governing this case is correctly stated in share to be given to my sister Mrs. Mary Lane, Ist Jarman on Wills, p. 638. By a devise in gen- upon her sole and separate receipt, free from the eral terms a trust estate will pass, unless a contrary control of her husband ; one other share to her intention can be collected from the terms of the eldest son the Rev. Ambrose Lane, and one other will

, Braybrooke v. Inskip, (8 Vesey, 417,) so share to her second son Hampden Lane ; but it is where a testator devised and bequeathed all his my will that said shares shall only continue to messuages, chattels real, ready money, securities for said Mary Lane, and her sons, if then alive, to the money, &c. &c., to A. and B., their heirs, executors 1st day of May or November, which shall first and assigns, it was held that the legal estate in happen after the death of Robert Lane, Esq., the premises mortgaged to the testator, in fee husband of said Mary; but that the share to said passed to A. and B. Mather v. Thomas, (6, Sim, Hampden is in nowise to be payable to him, unless 115.) To the same effect is Renvoize v. Cooper, said Robert Lane, his father, shall by deed grant (6 Mad. 371.) Since the late Wills act no words of to him, said Hampden, an annuity or rent-charge limitation are necessary to pass tbe fee, and there- during the life of him said Robert, payable out of fore do distinction between this case and those cited that part of Gaulstown demised to Lalor, said can be based on the use or omission of the term annuity to be for the full sum of £100 a-year, as "heirs."

at present paid to him by his said father, and if not Brooke, Q.C. and Mr. Johns, contra.—The cases so secured and paid, this bequest as to his share to cited, only go to this extent where money and se- be null and void ; two other shares to my nieces curities for money are bequeathed, the estate in Mrs. Watts, and her sister Abigail Hobart, the the mortgaged premises pass. Now here it is merely widow of my late friend Brigade Major Hobart, a gift of the money. [Pennefather, B.—There is during their respective natural lives ; and from and a manifest intention to vest the money in the trus- after their deaths respectively, the share of each tees for the payment of the legacies, and why should so dying, upon trust to the use of their respective the court presume that the testatrix made an im. son or sons, for his and their lives ; four other shares, perfect disposition, as this would be, if we are to that is to say, one each to the four daughters, hold that the legal estate did not pass ?] [Lefroy, (Martha, Rebecca, Elizabeth, and Charlotte) of my B.-If I recollect aright, there is a case of Martin said brother John Lannigan Stannard, and their v. Mowlin, (2 Bur. Rep. 969), where a devise assigns, during their several and respective lives mortgage was held to pass the estate in the land only, and subject to said respective life uses to said mortgaged.] Counsel relied on Roe dem. Helling respective persons, and to said increased jointure," v. Yeud, (2 Bos. & P, N. C. 214); Timewell v. The testator devised the lands so divided into nine Perkins, (1 Atk. 102); Tilly v. Simpson, (2 T. R. parts to the plaintiff for life, remainder to his first and 659); Ex parte Morgan, (3 Vesey, 348); Roe v. Other sons in tail male, with remainders over with Read, (8 T. R. Rep. 118); Galliers v. Moss, power to the plaintiff, when in possession of the (9 B. & C., 267.)

lands, of jointuring and leasing. The testator gave Pigot, C. B.—The court should endeavour to his personal property to his said four nieces, and Mary construe the will with reference to what was present Watts, and Abigail Hobart, in such shares as his to the mind of the testatrix at the time she made it. wife should appoint. The will was without date. It was passing in her mind that she had some free. The material parts of the codicil were as follows: hold estates, as may be inferred from this that she “ I further revoke the division into nine parts of couples the statement of the money itself with that the profits of my lands commencing in page 3, so of the land on which it was charged. Looking at far as Mary Lane, Mary Watts, and Abigail Hothe whole will, and having reference to the autho bart, and their respective sons are to take any parts rities, I think it may be reasonably intended, that or shares, either in possession or reversion under she devised as well her estates in the mortgaged said devise after my death, or the deaths of any premises, as the mortgage itself.

other person, and order said division to stand as Decree for plaintiff to the four remaining shares to the daughters of

my brother John as therein mentioned and to their STANNARD v. LODGE.-April 25, 26.

brother Henry also for said profit rents during WillConstructionDevise in Will clear, not cut longest liver

of said five persons, during my said

the life of my said wife, with survivorship to the down by ambiguous codicil.

wife's life ; and I further revoke the intermediate The bill was filed amongst other purposes to carry devise as to Ladyman's part of Gaulstown, after a into effect the trusts of the will of the late Robert failure of issue in R. R. Standard, and direct that Lannigan. Having devised an increased jointure after such failure, said part of Gaulstown should to his wife, out of certain portions of his unsettled go to Valentine Lannigan, as in said will menproperty, he likewise left her for life two houses in tioned. I direct the residue of my personal proHarcourt Street; after her death to his nieces, perty to be divided amongst my six nieces, the four subject to certain directions and restrictions, not daughters of my brother John, and to Mrs. Watts, inaterial to the principal question; and after other and to Mrs. Hobart, as in my will mentioned, with specific devises devised to Lodge, the trustee, the restrictions herein contained, first, that no part as follows:-“ And as to my said lands, not other of the three sums which, on the 29th September, wise disposed of by this my will, but subject to the 1832, I gave as a donation to said M. Watts and aforesaid increased jointure in trust, that the rents Mrs. Hobart, is now or since any part of my said and profits thereof shall be divided by my, said property.” After the death of the testator, the truslee into nine equal parts or shares, and one I trustee settled an account with the plaintiff and the

four nieces, and divided the surplus after the widow's Brewster, Q.C. Gayer, Q.C., and Mr. Flood, jointure, in fifths, to each a fifth--on every future for the trustee. occasion the plaintiff refused to accept of this

George, Q.C., and Mr. J. T. Bagot, for the distribution-and claimed to be entitled during the heir-at-law. life of the widow to 5-9ths, and to one-fifth of PÆNNEFATHER, B.—This case stood over for 4-9ths, and after her death to the entire. The the purpose of considering the construction to be nieces, during life of widow, claimed 8-9ths, and put upon the codicil. No one who has heard the after her death 4-9thş.

case argued, and read the documents, but must Green, Q.C. F. Fitzgerald, Q.C, Mr. Bur- feel that it is a case of difficulty and uncertainty

. roughs, and Mr. Odell for the plaintiff.--We We have given it the best attention in our power, subiit, that by the codicil the revoked five-ninths without, however, being able to overcome the diff: go to the plaintiff

, whose estate is thus accelerated, culty; and the members of the Court have not and that the previous gift to the nieces is modified, been able to arrive at the same conclusion as to the the estate for their own lives given by the will construction of this codicil

, my brother Richards being cut down to an estate pour autre viè, that of and I differing in opinion from my brother Lefroy. the widow. It was the intention of the testator, The will was evidently prepared with attention ; that the plaintiff, who was the object of his bounty, and the testator, after different specific devises, di should have his estate brought into possession im- rected the rest of his property to be divided into mediately on the death of the widow, and not post- nine parts or shares, referring to the persons by poned until after the deaths of the co-devizees; name; four to go to his nieces, the daughters of otherwise, he might never be able to exercise the his brother John, for their lives respectively

, as powers of jointuring and leasing given by the will tenants in common; the remaining five to five dif. to him, only when in possession of the estate. ferent individuals. Nothing material arises as to Admitting the general principle, that a clear gift these five shares, for it is beyond doubt they were in a will is not to be cut down by doubtful words revoked, and that after the death of the different in a codicil, that principle is controlled by another, tenants for life, all the testator's property was that the intention of the testator should be effec- given to his nephew, Henry, for life, remainder to tuated ; and where the gift in the will is inconsistent his first and other sons in tail male, giving him a with the codicil, and an entirely new disposition power, when in possession, of leasing and jointurby the latter, it shall prevail. Lord Hardwicke v. ing. I mention this power as it was pressed in Douglas, ( 7 Cl.& Fin, 794;) Sandford v. Sandford, argument, and it has some influence on the mind of (1 De Gex & Small. 67.) (Pennefather, B.--Yes, my brother Lefroy. There is no preamble to this where the two instruments are perfectly inconsistent codicil-no recital to explain the views or intention and irreconcileable, as where an estate in fee is of the testator. We must, therefore, collect from given by the will, and for life by the codicil.] the words themselves its true construction. In There is an inconsistency in a devise to A. for life construing it, we are bound not to reject nor introby will, and to A. pour autre vie by codicil. The duce words without an absolute necessity, and yet testator had two objects by the codicil ; first, that we are bound to put a construction upon the inthe division of his property should be altered, and, strument, if not altogether insensible. We are all secondly, that it should stand only for the life of agreed that the first portion of this codicil is free the widow--that upon her death the residuary de- from doubt. [His lordship here read the portion visee should enter into possession of the property, of the codicil alluded to, revoking the five shares. with all its rights and incidents.

This is a clear revocation of the five shares ; the Longfield, Q.C., Wall, Q.C., Mr. Hickey, and question then arises, is anything else revoked? I Mr. Newton, for the nieces. It is conceded on the think there is nothing else revoked. It is remarkother side that the will admits of no doubt, and able, that the word "only," which was perfectly that the codicil is obscure. The case, then, rests legible, has been partially erased. The codicil on the settled rule of construction, where the will formerly read thus : _“I order the said division to contains a clear gift, it is not to be revoked by stand only." If this word, only, had remained, it doubtful expressions in a codicil. (1 Jar. 165.) The might have struck the testator that the shares in testator knew how to use legal terms; when he remainder to his nephew, Henry, might be revoked wished to revoke, he expressed the intention dis- also. If they were only to stand as to the shares to tinctly ; but when he comes to speak of the share bis nieces, the inference might be, that the fireshares to the four nieces, he orders that to "stund as in might be revoked to Henry also. The testator his will mentioned.” When he associates the plain- might have struck out the word only

, as shewing tiff with the nieces, he is only dealing with the he intended the word stand to apply, not only to revoked five-ninths; they were equally his objects his nieces, but to Henry also. The meaning I put as the plaintiff. During the widow's life, there was on the codicil is, that the four shares remain i. the same motive of increased bounty for both; the affected, and that the revoked five-ninths should provision for both was suspended during her life; stand for Henry and his sisters during the life of at her death, the nieces got the houses, the plaintiff his wife, with benefit of survivorship as to those the entire five-ninths. In the codicil, a new sentence five-ninths amongst them during that period; after should begin at the word, “ also;" “for” should be the death of the widow, the five shares to fall in to read “as to," " as regards,” and it then clearly Henry. I cannot say this opinion is free from appears that the gift in the codicil is of other proa doubt, but it is the best I have been able to form. perty, and if so, the case comes within another I would further say, that if it had been the testasettled rule of construction, that the gift in the tor's intention to revoke the shares given to his codicil was cumulative, not substitutional. nieces by the will, nothing would have been more

« EelmineJätka »