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.

66

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. 5001. ;" 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?]

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.

[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 must be affirmed, but not on the ground on which that judgment proceeded, for I am not satisfied that the words " cutrix" are meant simply as a designatio persona. I quite agree with the proposition laid down in 2 Jarman on Wills, 3rd ed., p. 249, that "where a devisee who is directed to pay the testator's debts is also appointed executor, the injunction is considered to have relation not to his duty as executor to discharge the debts, but to his character of devisee of the land in which therefore he takes a fee." But the case is different where the devisee is directed to pay, not as devisee, but as executor. Here I think the testator intended his wife to pay the 5l., not as devisee, but as executrix.

But upon the other ground, I think, upon a true construction of the will, as a whole, that the widow took an estate in fee. The rule with regard to wills made before 1838 is that a devise of realty, without words of inheritance, does not pass the fee. But it is an equally well established rule, that if we can gather from the rest of the will that the testator intended to give the fee, the estate for life is enlarged to the fee. I think the testator wished his wife to remain single; that he desired to benefit his children equally, and that since it was desirable to postpone the distribution among his children till a later period, he intended to give her the whole of his property, the absolute disposal of the personalty, and the fee simple of the land, having confidence that she would distribute the property at her death among his children in the same way that he himself, if living, would have done. But inasmuch as she might marry again, and become subject to influences hostile to his children's interests, he provides that in that event the property shall go to trustees, to distribute equally among his children. This is a very common case.

The other construction would involve this manifest incongruity. In case of his widow's marriage, we are to suppose he meant his children to share equally, but in case of her death without having married again, he meant his eldest son to take all the land, and the other children none of it. Thus his plain intention to

benefit his children equally, would be defeated if we held that the wife took only an estate for life.

WILLES, J.-I am of the same opinion. BLACKBURN, J.-The case has been argued on several grounds, but I rest my judgment only on the one taken by the Court below. Before expressing an opinion on the others I should desire time to look at the authorities.

In wills before 1838 it has been well established that though a devise of land without words of limitation gives only an estate for life, yet where the devisee is directed to pay a sum of money, that affords a sufficient presumption that the testator intended the object of his bounty to take the fee, because the life estate might be too small to discharge the burden. Such an intention would be properly inferred where the life estate is small in proportion to the payment directed; but it has also been well established that the Court is not at liberty to enter into the question whether that proportion is great or small. Possibly this rule was originally made to save trouble, but there is a good reason for maintaining it, since no conveyancer in advising upon such a title to property would be able to say whether the title was good or bad, if he had to enquire into the proportion which the payment bore to the estate.

I

This rule, indeed, would not apply if the testator intended the payment of 51. to be a legacy to the eldest son payable out of the personal assets only. But I cannot so construe the will. The testator does not make his wife residuary legatee, but he begins by devising everything to her. Then he names her executrix. think the direction, "my executrix shall pay," is equivalent to saying, "my wife, Mary Pickwell, shall pay," and does not amount to a legacy. Therefore, according to the cases, the wife's estate for life is enlarged to an estate in fee, defeasible on her marrying again.

MELLOR, J.-I think the judgment of the Court of Exchequer is to be justified for the reasons given by my brother Blackburn. I think further, that the reasons given by the Lord Chief Justice shew that the testator intended his wife to take the fee, and not merely a life estate.

BRETT, J.-I think the estate for life is enlarged to a fee on both grounds. The principal intention of the testator manifestly was to benefit his younger children, and he evidently did not wish his widow to marry again. But notwithstanding that-if Mr. Field is right—the younger children would derive more benefit if the widow did marry than if she did not.

On the other ground also, I think the direction to pay enlarged the estate to the fee. To arrive at that conclusion, I read the words, "labour on the farm," to mean "labour on the copyhold estate." The widow, as executrix, would have nothing to do with the copyhold property, and that I think shews that "my executrix" does not mean 66 as executrix," but is a desig

(In the Second Division of the Court.) 1872.

Jan. 27, 30.

}

EX PARTE C. STEWART-AN
ARTICLED CLERK.

Attorney and Solicitor Admission Articled Clerk--Intermediate Examination -Jurisdiction-23 & 24 Vict. c. 127. ss. 2, 5, 8, 9.

A member of the University of Edinburgh, who has not taken the degree of M.A., but has been enrolled on the General Council by virtue of 21 & 22 Vict. c. 83. s. 6, is not entitled to be admitted an attorney after three years' service under articles.

Quære, whether this Court has jurisdiction to compel the examiners to grant a certificate to an articled clerk that he has passed his intermediate examination.

This was a motion for a rule calling on the examiners appointed to conduct the intermediate examination of articled clerks

under 23 & 24 Vict. c. 127. s. 9, to shew cause why they should not grant to the applicant a certificate that he had satisfactorily passed his intermediate examination, or why they should not admit him

to that examination.

The affidavits proved that the applicant having been for four years an undergraduate of the University of Edinburgh, was in 1861 enrolled on the register as a member of the General Council of that university, on the ground that he had, as a matriculated student, given the attendance on the course of study in the university required by 21 & 22 Vict. c. 83. s. 6. The status in the university conferred on him by this enrolment was not honorary, and was considered equivalent in the university to the degree of master of arts, which degree was then nearly obsolete, and for that reason the applicant was so enrolled instead of taking that degree (1).

The applicant was called to the Scotch bar in 1862, and practised there till November, 1869. In January, 1870, he became articled to a firm of London solicitors for a period of three years, and the articles were duly executed, enrolled, and registered. In Michaelmas term, 1871, he presented himself at the Incorporated Law Society's Hall for his intermediate examination, alleging that he would be entitled to be admitted as an attorney and solicitor after three years' service by virtue of his position in the University of Edinburgh, and of 23 & 24 Vict. c. 127. s. 2.

The examiners examined the applicant de bene esse, and he passed the examination satisfactorily, but they held that he was not entitled to be admitted after three years' service, and therefore refused to give him a certificate that he had passed a satisfactory examination unless he could obtain an opinion of one of the Superior Courts of law that they ought to do so.

(1) This section enacts that there shall be in the University of Edinburgh a General Council, consisting of the chancellor, of the members of the University Court, of the professors, of all masters of arts of the university, of all doctors of medicine who have given certain attendance, and of persons who have as matriculated students given certain other attendance, on the course of study in the university.

Thesiger, in support of the motion.The applicant is entitled to be admitted after three years' service, because he is within the spirit of 23 & 24 Vict. c. 127. s. 2 (2). Though not a master of arts in the University of Edinburgh, he is by virtue of 21 & 22 Vict. c. 83. s. 6 (amended by 31 & 32 Vict. c. 48. s. 28), a member of the General Council, and has as such all the privileges of a master of arts.

[BRAMWELL, B.-Is not the time when the three years have expired the proper time to decide this question?]

No, because by rule iii. 1 of an order dated 31st January, 1863, and made under 23 & 24 Vict. c. 127. ss. 2, 5, 8, 9, with respect to the intermediate examination, every articled clerk "shall be examined either in the term in which one half of his time of service shall expire, or in one of the two terms next before, or one of the two terms next after one half of his term of service."

[BRAMWELL, B.—I think that is only directory.]

By rule iii. 4 of the same order, the examiners, if they are satisfied with the articled clerk's answers, shall certify that he has passed a satisfactory examination.

[BRAMWELL, B.—But what jurisdiction have we to entertain this application?]

The general jurisdiction of this and the other Superior Courts over articled clerks. By Reg. Gen. Hil. Term, 1853 (Attorneys), sec. 3, when the examiners refuse a certificate that an articled clerk has passed the final examination, he may apply for admission by petition to the judges, and shall be heard in Serjeants' Inn Hall by not less than three of the judges. There is no similar enactment or rule as to the intermediate examination, and unless the Courts have jurisdiction, a decision of the examiners is conclusive.

(2) By that section "any person having taken the degree of bachelor of arts, master of arts, bachelor of laws, or doctor of laws, in any of the Universities of Scotland, none of such degrees being honorary degrees," and who after having taken such degree has duly served under articles of clerkship for three years, and has been examined and sworn in manner directed by that statute, and by 6 & 7 Vict. c. 73, may be admitted as an attorney and solicitor.

Garth, for the Incorporated Law Society, did not oppose the application, but submitted to the jurisdiction of the Court, and requested their opinion. He stated that similar applications with regard to the final examination had been made to and heard by the Courts at Westminster. Cur. adv. vult.

On Jan. 30 the following judgments were delivered

BRAMWELL, B.-This application must be refused. I have had some serious doubts, and the result is that I am not sure that we have any jurisdiction to entertain the motion. Where the examiners refuse to grant a certificate in the final examination, an appeal is given, by the rules of 1853, to a special tribunal sitting at Serjeants' Inn, and I doubt if it could have been intended that any one Court should have an individual jurisdiction. One reason for thinking that we have no jurisdiction to grant this application is that if there be any jurisdiction, it must be not in any particular Court, but generally in all the Courts in Westminster Hall; and if so one Court might order the examiners to do something, and yet would have no means of enforcing that order, because another Court might (though it is not very likely to happen) give the examiners a contradictory order.

Another reason is that if the applicant were right in supposing that he is entitled to the certificate, I do not feel sure that he cannot avail himself of his claim when the time comes to pass his final examination, and if so it is not necessary to determine the point now. It was said to be very desirable that an opinion should be given now, and that the applicant should not be kept in uncertainty for three years, and then perhaps be refused admission. I sympathise with the applicant in this position, but that consideration cannot give us jurisdiction. Moreover, if we had any jurisdiction, I think it would be, not to compel the examiners to grant a certificate, but to examine the applicant.

Therefore, though I do not say we have no jurisdiction, I doubt if we have.

But even if we had, the application ought to be refused, because the examiners were right in holding that the appli

cant is not entitled to his claim. No doubt his position in the Scotch University is equal, if not superior, to the degree of B.A. or M.A. The case may be hard, but the words of the statute are plain, and confine the benefit to persons having taken the degree of B.A. and M.A., and the applicant has neither.

CHANNELL, B.-This case has given rise, to many anxious considerations as to our jurisdiction. I entertain all the doubts expressed by my brother Bramwell, and I cannot see my way to saying that we have any jurisdiction. It may be that if there is any authority at all which can grant such an application, it is in the tribunal of all the judges sitting at Serjeants' Inn. It ay be though I think not-that this Court, as the Court of Exchequer, has jurisdiction; but I am clear as to this, that if the Court of Exchequer has jurisdiction, the Queen's Bench has the same, and may have more; for the Queen's Bench has power in various cases- -where we have no such power-to order persons to do things which they refuse to do.

I also agree that if we had any jurisdiction, the applicant is not entitled to the benefit of the 23 & 24 Vict. c. 127. s. 2, for the reasons stated by my brother Bramwell.

PIGOTT, B.--I think there is some diffi

culty and doubt on the question of jurisdiction. If we had jurisdiction with regard to the final examination, then I think we should have it as a consequence with regard to the intermediate. But there is no precedent for interfering at the present stage. I cannot see any harm in our having the jurisdiction, and I incline to think we have it. It is, however, not necessary to determine that, because I agree with my brothers that the applicant brothers that the applicant is not entitled to the benefit given by the 23 & 24 Vict. c. 127. He has a position which the statute has made equivalent to the degree of M.A., but only with respect to the governing body of the university. Rule refused.

Attorneys-Markby & Tarry, for the applicant ; E. W. Williamson, for the Incorporated Law Society.

Breach of Promise to marry on a Contingency-Absolute Refusal before happening of the Event.

An action for breach of promise of marriage may be maintained against a man who has promised to marry a woman after the death of his father, and has afterwards absolutely declared his intention never to fulfil his promise, although his father be living at the time the action is brought.

This case came before the Court on Exchequer, arresting the judgment on a error upon a judgment of the Court of verdict given for the plaintiff.

The action was for breach of promise of marriage. The promise proved was to marry the plaintiff on the death of defendant's father. While the father was still living, the defendant announced his intention of not fulfilling his promise on his father's death, and broke off the engagement, whereupon the plaintiff without waiting for the father's death at once brought the present action.

The plaintiff having obtained a verdict, a rule nisi was granted to arrest the judgment, on the ground that a breach of the contract could only arise on the father's death, till which event no claim for performance could be made, and consequently till its occurrence no action for breach of the contract could be maintained. A ma

jority of the Court of Exchequer concurred in making this rule absolute, Martin, B., dissenting (1); whereupon error brought by the plaintiff.

was

A. S. Hill (with him C. Dodd), contended that the action was maintainable.

J. J. Powell (with him F. T. Streeten), contra, argued in support of the judgment of the majority of the Court below.

The arguments were substantially the same as those in the Court below, and all the cases bearing on the question will be (1) 39 Law J. Rep. (N.s.) Exch. 227.