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JOHN

AND

GEORGE SNOW.

(IN THE EXCHEQUER CHAMBER.] all my money, securities for money, goods,

chattels and effects of what nature or kind (Error from the Court of Exchequer.)

soever, and wheresoever the same shall be PICKWELL V. GEORGE at the time of my decease. And I do no1872.

SPENCER, JOHN SNOW, minate, constitute and appoint my said Feb. 3, 5.

wife executrix of this my last will and

testament; but if my said wife Mary WillConstruction of Will made before 1838–Devise of Land without Words of

Pickwell marry again and cease to be Limitation-Estate for Life enlarged to a

my widow, my will is that an inventory Fee.

of the land, goods and chattels and effects

before mentioned be immediately taken A testator by a will made before 1838, by” (certain persons named) “whom I gave to his wife, whom he nominated execu- nominate, constitute and appoint guartrix, certain land, without words of limita- dians to my children (till the two youngest tion, and all his personalty, but if she shall have arrived at an age capable of married again, the land was to be reserved providing for themselves), to superintend by trustees and sold for the benefit of all their bringing up and education till that his children equally. Then he directed, time ; and my will is that the before menthat my executrix shall pay my eldest son tioned guardians shall upon the marriage the sum of 51. a year for wages, as long as of my widow have power to take away he shall continue to labour on the farm after the goods, chattels and effects mentioned my decease :"—Held, affirming the judg- in the inventory they shall make, and ment below, that the wife's estate was, by reserve them for the benefit and profit of the direction to pay wages, enlarged from my children, and to have power to reserve an estate for life to an estate in fee defea- the before mentioned closes and land for sible on her marrying again.

the benefit of my children till the two Held, also, that the estate for life was so youngest shall have arrived at an age enlarged, because the testator's intention that capable of providing for themselves, then his wife should take the fee could be col- and at that time the before mentioned lected from the gift over in the event of her goods, chattels, effects, closes and land marrying again.

shall be sold, and the money they produce

shall be equally divided amongst my surEjectment defended by the defendants viving children.

viving children. It is also my will that Snow, as landlords of their tenant, the de- my executrix shall pay my eldest son fendant Spencer.

William Pickwell the sum of 51.

year The following Special Case was stated for wages as long as he shall continue by consent without pleadings.

to labour on the farm after

my

decease." Matthew Pickwell was, at the date of Soon after the will was made the testahis will and death, absolutely entitled to tor died, leaving the plaintiff his heir-atthe inheritance in about six acres of copy- law according to the custom of the manor. hold land, which he had duly surrendered The testator's widow, Mary Pickwell, to the use of his will. He devised the proved his will in February, 1822, and land by his will, made on the 26th of died on the 30th of September, 1870, not March, 1821, of which the material part is having married again. as follows

In November, 1832, Mary Pickwell, in “I give and bequeath to my beloved consideration of 2501. paid to her by one wife Mary Pickwell all those my copy, R. S., surrendered the copyhold land hold closes, and which I have surrendered devised by the will to the use of R. S., his to the use of my will, situate lying and heirs and assigns, and R. S. was admitted being at Eagle in the said courty of tenant at a Court held in 1833. R. S. Lincoln. I also give and bequeath to my died in 1857, having by will devised the said wife Mary Pickwell all the land copyhold land to the defendants Snow,

fall to the said closes by the in- who were duly admitted. closure of the high moor. Also I give and If the Court be of opinion that the bequeath to my said wife Mary Pickwell testator's widow did not take a larger New SERIES, 41,--EXCHEQ.

1.

a

which may

estate than for life, judgment is to be entered for the plaintiff; if that she take a larger estate than for her life, judgment of non pros. is to be entered for the defendants.

The Court of Exchequer gave judgment for the defendants on the ground that the testator's widow took a larger estate in the land than for her life (1).

The plaintiff brought error.

Field (J. J. Aston with him), for the plaintiff. The wife took only an estate for life, and the plaintiff as the testator's heir became entitled on her death. "A devise of lands without words of limitation in a will before 1838 confers on the devisee an estate for life only."-2 Jarman, 3rd edit. p. 247. To enlarge the estate for life into a fee "such an intention must appear as is sufficient to satisfy the conscience of the Court in pronouncing it such; if it is barely problematical the rule of law must take place"-Roe d. Bowes v. Blackett (2). It is for the devisee to make out an intention to disinherit the heir-Lloyd v. Jackson (3). "An indefinite devise is enlarged to a fee simple by the imposition of a charge, however small, on the person of the devisee or on the quantum of the interest devised to him; but not if the devise is merely subject to a charge"-Hawkins on Wills, p. 134. The charge must be in respect of the devise as in Moone v. Heaseman (4), where the testator said, “My lands I give to S., paying to E. 500l. ;" and as in Johnson v. Brady (5). Here the wife is not directed to pay as devisee; nay more she is directed to pay as executrix.

[WILLES, J.-Is it not as devisee? The 51. is to be conditional on the son's labouring on the farm, and the natural person to pay the wages of a farm labourer would be the person who worked the farm.]

--

There is nothing in the will to shew that the "copyhold closes and land" were the whole of the farm, or even part of it.

[COCKBURN, C.J.-The other point is strongest against you. The gift over, in

(1) 40 Law J. Rep. (N.s.) Exch. 132. (2) Cowp. 235.

(3) 36 Law J. Rep. (N.s.) Q.B. 169. (4) Willes, 138.

(5) 11 Irish Eq. 386.

case of marriage, shews that the testator meant to dispose of the fee.]

The only gift over which enlarges an indefinite devise to a fee simple, is a gift over in the event of the devisee dying under a certain age.

[BLACKBURN, J.-Is there any difference in principle between a gift over in the event of death under twenty-one, and a gift over in the event of marriage before death?

66

Authority forbids the extension of the doctrine to cases in which the devise over in fee arises on a collateral event, wholly unconnected with the decease of the prior devisee."-2 Jarman, 3rd ed. p. 251-2; Roe d. Bowes v. Blackett (2). But if the Court is of opinion that the testator intended to dispose of the fee in the event which has happened, then the present case falls within the rule that "where a testator makes a devise to his widow for life if she shall so long continue a widow, and if she shall marry, then over, the devise over is not dependent on the contingency of the widow's marrying again, but takes effect at all events on the determination of her estate whether by marriage or death.' 1 Jarman, p. 761. Here the estate passed on the widow's death to the guardians in trust for all the children, as in Browne v. Hammond (6), where the testator devised real and personal property "to his wife for her sole and separate use so long as she continued to be his widow, but if she should marry again after his decease, the property" was to go over. The testator's widow died without having married again. Wood, V.C., held that the devise over was extended by implication, so as to take effect on the determination of the widow's estate by death.

19

[Per COCKBURN, C.J., and WILLES, J. -That case is not in point, because there the widow's estate was only during widowhood. Per Curiam.-Moreover, even if it were applicable, the guardians would be the proper plaintiffs-Brown's Case (7), and this plaintiff, the heir, could not recover.] Manisty (F. M. White with him), for the defendants, was stopped.

(6) Johns. 210.

(7) Co. Rep., pt. 4, 22 b.

my exe

COCKBURN, C.J.-I think the judgment benefit his children equally, would be demust be affirmed, but not on the ground feated if we held that the wife took only on which that judgment proceeded, for I an estate for life. am not satisfied that the words “

WILLES, J.--I am of the same opinion. catrix” are meant simply as a designatio BLACKBURN, J.-The case has been arpersone. I quite agree with the proposi. gued on several grounds, but I rest my tion laid down in 2 Jarman on Wills, 3rd judgment only on the one taken by the ed., p. 249, that “where a devisce who is Court below. Before expressing an opidirected to pay the testator's debts is also nion on the others I should desire time to appointed executor, the injunction is con- look at the authorities. sidered to have relation not to his duty In wills before 1838 it has been well as executor to discharge the debts, but established that though a devise of land to his character of devisee of the land in without words of limitation gives only an which therefore he takes a fee." But the estate for life, yet where the devisee is case is different where the devisee is di- directed to pay a sum of money,

that rected to pay, not as devisee, but as exe- affords a sufficient presumption that the cutor. Here I think the testator intended testator intended the object of his bounty his wife to pay the 51., not as devisee, but to take the fee, because the life estate as executrix.

might be too small to discharge the But upon the other ground, I think, burden. Such an intention would be upon a true construction of the will, as a properly inferred where the life estate is whole, that the widow took an estate in fee. small in proportion to the payment diThe role with regard to wills made before rected; but it has also been well estab1838 is that a devise of realty, without lished that the Court is not at liberty to words of inheritance, does not pass the enter into the question whether that profuo. But it is an equally well established portion is great or small. Possibly this rule, that if we can gather from the rest rule was originally made to save trouble, of the will that the testator intended to- but there is a good reason for maintaining give the fee, the estate for life is enlarged it, since no conveyancer in advising upon to the fee. I think the testator wished such a title to property would be able to his wife to remain single; that he desired say whether the title was good or bad, if to benefit his children equally, and that he had to enquire into the proportion since it was desirable to postpone the dis- which the payment bore to the estate. tribution among his children till a later This rule, indeed, would not apply if period, he intended to give her the whole the testator intended the payment of 51. of his property, the absolute disposal of to be a legacy to the eldest son payable the personalty, and the fee simple of the out of the personal assets only. But I land, having confidence that she would cannot so construe the will. The testator distribute the property at her death does not make his wife residuary legatee, among his children in the same way that but he begins by devising everything to he himself, if living, would have done. her. ' Then he names her executrix. I But inasmuch as she might marry again, think the direction, “my executrix shall and become subject to influences hostile pay," is equivalent to saying, "my wife, to his children's interests, he provides Mary Pickwell, shall pay," and does not that in that event the property shall go amount to a legacy. Therefore, according to trustees, to distribute equally among to the cases, the wife's estate for life is his children. This is a very common case. enlarged to an estate in fee, defeasible on

The other construction would involve her marrying again. this manifest incongruity. In case of his MELLOR, J.-I think the judgment of widow's marriage, we are to suppose he the Court of Exchequer is to be justified meant his children to share equally, but for the reasons given by my brother Blackin case of her death without having burn. I think further, that the reasons married again, he meant his eldest son to given by the Lord Chief Justice shew that take all the land, and the other children the testator intended his wife to take the none of it. Thus his plain intention to fee, and not merely a life estate.

a

was

Brett, J.-I think the estate for life is under 23 & 24 Vict. c. 127. s. 9, to shew enlarged to a fee on both grounds. The cause why they should not grant to the principal intention of the testator mani. applicant a certificate that he had satisfostly was to benefit his younger children, factorily passed his intermediate examinaand he evidently did not wish his widow tion, or why they should not admit him to marry again. But notwithstanding to that examination. that-if Mr. Field is right—the younger The affidavits proved that the applicant children would derive more benefit if the having been for four years an underwidow did marry than if she did not. graduate of the University of Edinburgh,

On the other ground also, I think the was in 1861 enrolled on the register as a direction to pay enlarged the estate to the member of the General Council of that fee. To arrive at that conclusion, I read university, on the ground that he had, as the words, “labour on the farm,” to mean a matriculated student, given the attend“ labour on the copyhold estate.” The ance on the course of study in the uniwidow, as executrix, would have nothing versity required by 21 & 22 Vict. c. 83. to do with the copyhold property, and that s. 6. The status in the university conI think shews that “my executrix” does ferred on him by this enrolment was not not mean “as executrix,” but is a desig- honorary, and was considered equivalent natio persone.

in the university to the degree of master Grove, J.-I agree. If Mr. Field is of arts, which degree was then nearly right in contending that the wife took obsolete, and for that reason the applicant only a life estate, and that the plaintiff suc- so enrolled instead of taking that ceeded as heir, then we must hold that the degree (1). testator had this inconsistent intention, The applicant was called to the Scotch namely, to benefit his younger children in bar in 1862, and practised there till the event of his wife marrying again, but November, 1869. In January, 1870, he not in the event of her dying his widow. became articled to a firm of London Judyment affirmed. solicitors for a period of three years, and

the articles were duly executed, enrolled, Attorneys–Swann & Co., agents for C. L. Hughes,

and registered. In Michaelmas term, Lincoln, for plaintiff; White & Borrett for defondants.

1871, he presented himself at the Incorporated Law Society's Hall for his

intermediate examination, alleging that (In the Second Division of the Court.)

he would be entitled to be admitted as an

attorney and solicitor after three years' 1872.

service by virtue of his position in the Jun. 27, 30.)

University of Edinburgh, and of 23 & 24 Attorney and Solicitor Admission Vict. c. 127. s. 2. Articled Clerk--Intermediate Examination The examiners examined the applicant ---Jurisdiction-23 8. 24 Vict. c. 127. ss. 2, de bene esse, and he passed the examina5, 8, 9.

tion satisfactorily, but they held that he A member of the University of Ellin

was not entitled to be admitted after three burgh, who has not taken the degree of M.A., years' service, and therefore refused to but has been enrolled on the General Council give him a certificate that he had passed by virtue of 21 & 22 Vict. c. 83. 8. 6, is not

a satisfactory examination unless he could entitled to be admitted an attorney after obtain an opinion of one of the Superior three years' service under articles.

Courts of law that they ought to do so. Quære, whether this Court has jurisdic. (1) This section enacts that there shall be in tion to compel the examiners to grant a the University of Edinburgh a General Council, certificate to an articled clerk that he has consisting of the chancellor, of the members of the passed his intermediate examination.

University Court, of the professors, of all masters

of arts of the university, of all doctors of medi. This was a motion for a rule calling on

cino who have given certain attendance, and of

persons who have as matriculated students given the examiners appointed to conduct the certain other attendance, on the course of study in intermediate examination of articled clerks the university.

EX PARTE C. STEWART-AN

}

ARTICLED CLERK.

Thesiger, in support of the motion.- Garth, for the Incorporated Law Society, The applicant is entitled to be admitted did not oppose the application, but subafter three years' service, because he is mitted to the jurisdiction of the Court, within the spirit of 23 & 24 Vict. c. 127. and requested their opinion. He stated 8. 2 (2). Though not a master of arts that similar applications with regard to in the University of Edinburgh, he is the final examination had been made to by virtue of 21 & 22 Vict. c. 83. s. 6 and heard by the Courts at Westminster. (amended by 31 & 32 Vict. c. 48.

Cur. adv. vult. 8. 28), a member of the General Council, and has as such all the privileges On Jan. 30 the following judgments of a master of arts.

were delivered [BRAMWELL, B.—Is not the time when BRAMWELL, B.-This application must the three years have expired the proper be refused. I have had some serious time to decide this question ?]

doubts, and the result is that I am not No, because by rule iii. 1 of an order sure that we have any jurisdiction to endated 31st January, 1863, and made tertain the motion. Where the examiners under 23 & 24 Vict. c. 127. ss. 2, 5, 8, 9, refuse to grant a certificate in the final with respect to the intermediate examina- examination, an appeal is given, by the tion, every articled clerk “shall be ex- rules of 1853, to a special tribunal sitting amined either in the term in which one at Serjeants’ Inn, and I doubt if it could half of his time of service shall expire, have been intended that any one Court or in one of the two terms next before, or should have an individual jurisdiction. one of the two terms next after one half One reason for thinking that we have no of his term of service.”

jurisdiction to grant this application is [BRAMWELL, B.-I think that is only that if there be any jurisdiction, it must directory.]

be not in any particular Court, but geneBy rule ii. 4 of the same order, the rally in all the Courts in Westminster examiners, if they are satisfied with the Hall; and if so one Court might order articled clerk's answers, shall certify that the examiners to do something, and he has passed a satisfactory examination. yet would have no means of enforcing

[BRAMWELL, B.-But what jurisdiction that order, because another Court might have we to entertain this application:] (though it is not very likely to happen)

The general jurisdiction of this and give the examiners a contradictory order. the other Superior Courts over articled Auother reason is that if the applicant clerks. By Reg. Gen. Hil. Term, 1853 were right in supposing that he is entitled (Attorneys), sec. 3, when the examiners to the certificate, I do not feel sure that refuse a certificate that an articled clerk he cannot avail himself of his claim when has passed the final examination, he may the time comes to pass his final examinaapply for admission by petition to the tion, and if so it is not necessary to de.

, judges, and shall be heard in Serjeants' termine the point now. It was said to be Inn Hall by not less than three of the very desirable that an opinion should be judges. There is no similar enactment or given now, and that the applicant should rule as to the intermediate examination, not be kept in uncertainty for three years, and unless the Courts have jurisdiction, and then perhaps be refused admission. I a decision of the examiners is conclu- sympathise with the applicant in this sive.

position, but that consideration cannot

give us jurisdiction. Moreover, if we had (2) By that section “any person having taken

any jurisdiction, I think it would be, not the degree of bachelor of arts, master of arts, bachelor of laws, or doctor of laws, in any of the

to compel the examiners to grant a certiUniversities of Scotland, none of such degrees

ficate, but to examine the applicant. being honorary degrees,” and who after having Therefore, though I do not say we have taken such degree has duly served under articles no jurisdiction, I doubt if we have. of clerkship for three years, and has been ex

But even if we had, the application amined and sworn in manner directod by that statute, and by 6 & 7 Viet. c. 73, may be admitted

ought to be refused, because the exami. as an attorney and solicitor.

ners were right in holding that the appli

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