premises, and then said "which I have surrendered," &c. a mistake as to that circumstance, provided it was clear what he meant, would not have defeated it. That was a most solemn decision, having been three times before the Court. An injunction had been obtained for want of an answer. In the Register's Book the devise is thus stated from the answer of the customary heir, "All his lands and tenements freehold and copyhold in possession and reversion and elsewhere in the County of Middlesex, and which copyhold lands he had surrendered to the use of his will." These words certainly are not accurate; for there is nothing for "elsewhere" to refer to; and I rather think, those in the Report are more accurate; but it satisfies me, * that they are pretty much the [* 194] same as in the report. It is stated from the same answer, that upon the motion to dissolve the injunction it appeared, that the testator had devised such of his copyhold lands, as he had surrendered to the use of his will; and that the premises holden of the manor of Sutton Court had never been surrendered to the use of his will; and therefore the Court dissolved the injunction. The same question therefore came on upon that motion and at the hearing; and there was a re-hearing. Every argument, that could apply in that case, applies to this. It was not necessary to consider the parenthesis as more than assertion. It seems to me enough to say, it may operate as a restriction. A testator shall not be supposed to pass what he cannot pass. If he had said all his copyhold lands, I must have taken it, that he meant whether surrendered or not: but upon this description it is at least doubtful, whether he meant to pass this. Fortified by this case I cannot say I am satisfied, that he has given any but such as were surrendered. I have looked into the three cases cited before Lord Hardwicke. In that in Hobart there is a great deal of learning upon this very point. That consists not only of the principal case, but, as is usual in that book, of a variety of cases argued upon; and the result of all is, that if a videlicet is repugnant to what has gone before, it shall be rejected; but if it can be reconciled and made restrictive, it shall be so: thus where land in the occupation of Thomas Cotton is given; and the testator has none in his hands, but had lands in the hands of Robert Cotton, they shall pass: otherwise the devise would be totally frustrated. I agree to that; which would apply here, if the testator had no copyhold, that was surrendered; upon which, I understand, Rumbold v. Rumbold turned entirely. Lord Hardwicke seems to think, the case in March went entirely upon the ground of totally frustrating the devise. Upon the whole, if Lord Hardwicke was right, as I think he was, there is not sufficient to warrant me in saying, it is apparent, the testator meant to pass this copyhold estate. Therefore it descends to the heir. Upon the second point it was not strenuously argued, that the heir could be entitled to take both under the will and the copyhold estate, that was entailed. It is clear, the testator intended to pass the entailed copyhold; therefore upon the common doctrine, that no one claiming under a will can contravene it, they must elect (1). 1. SINCE the statute 55 Geo. III. c. 192, a surrender to the uses of the testator's will is no longer necessary to give validity to his testamentary disposition of copyholds, when that disposition is good in all other respects: and though Lord Alvanley came, not without difficulty, to a conclusion in the principal case, that when a testator devises all his freehold and copyhold lands, but adds, "the copyhold part whereof I have surrendered to the use of my will;" if he has surrendered some of his copyholds but not others, he must be understood to have intended only to pass those which he had surrendered; this decision has been held not to be satisfactory and in Strutt v. Finch, 2 Sim. & Stu. 233; as well as in Orenforth v. Cawkwell, 2 Sim. & Stu. 559; between which cases and the present there was, if not an exact, a close resemblance, the whole of the testator's copyhold, surrendered and unsurrendered, were held to pass. : 2. As to the doctrine of election, see, ante, the note to Butricke v. Broadhurst, 1 V. 171, and note 3 to Blake v. Bunbury, 1 V. 194. [* 195] MORGAN v. SCUDAMORE. [1796, FEB. 9.] REVIVOR for costs only on the death of the Plaintiff, entitled to them, though before the report, and they were not to come out of a particular fund. THIS cause, (reported ante Vol. II. 313 (1), ) upon the argument of the demurrer, came on to be heard; and the answer stating, that all the decree had been executed, the point was again argued. July 8th. Lord CHANCELLOR [LOUGHBOROUGH]. The question is, whether, where the Plaintiff dies after a decree entitling him to costs, but before the taxation and report, this Court will permit the suit to be revived. It is certainly revived purely to obtain payment of the costs. It was distinguished by the Solicitor General from the case of the Defendant dying, the costs not being reported, and therefore not being analogous to the case of a judgment at law. It is a different case undoubtedly, where the Defendant dies; because in that case the revivor would be attended with this inconvenience: of necessity it would draw in this Court a direction for payment out of assets; and would draw after it therefore an account of assets and a considerable inconvenience of necessity; for unless the Defendant's representative submitted to pay, it would be attended with a considerable expense beyond the mere purpose of recovering what the Plaintiff was entitled to. That inconvenience does not exist, where the Plaintiff dies. It struck me, that it was so very different a case, that it would be very fit to consider carefully what had been the course of the Court; and Mr. Dickins has taken the trouble to examine into the cases, that are not printed. In Lord Nottingham's time it (1) Upon the doctrine of election, see the notes, ante, vol. i. 523, 7. seems to have been the general idea, that there should be no revivor for costs purely upon an abatement by the death either of the Plaintiff or of the Defendant; and that notion seems to have prevailed beyond the time of Lord Nottingham: for there is a case, in which Lord Macclesfield follows the same notion. It seems from all the cases in Lord Nottingham's time, and as long as that notion prevailed, that not distinguishing between costs payable out of a fund and payable personally, the Court was led, as it seems to me, by a supposed analogy between this and the case of a judgment at law. Lloyd v. Powis (1), 19th June, 1671, is the first case, I have been furnished with, where the Plaintiff died. In Lord Dacres v. Tuite (2) 1675, it is laid down, * that where the [* 196] decree is enrolled, and the costs are recoverable out of assets, a bill of revivor will lie for the costs only. The terms of that proposition are, that the enrolment of the decree must be prior to the abatement. In Temple v. Rowse before Lord Nottingham in 1679 a demurrer upon the ground, that the decree was not enrolled, was held to lie to a bill of revivor for costs. Perhaps the circumstances might have weighed. There was a singular conversion of parties. A party, Defendant in the cause and liable to costs, became by the abatement the representative of the Plaintiff, and wanted to revive in order to have costs against the other parties, he being himself the delinquent. The bill was by a married woman against the husband and the trustees: upon her death the husband became her representative. They had been separated. It was a whimsical cause: but Lord Nottingham there, I take it, followed the idea, he had adopted, and which was pursued in subsequent cases; that to entitle the representative to a remedy for costs upon an abatement the decree must be enrolled, so as to be as near as possible to what is equivalent to a judgment at law. Lord Macclesfield in another cause upon the same ground, that the decree was not enrolled, allows the cause shown for not reviving for costs. So it seems to have stood from that period. I cannot help thinking (the proceedings of the Court had not acquired all the force, they have since) they were guided a little too much by a supposed analogy to the case of a judgment at law. It is quite impossible to draw any strict analogy between them. There is no such thing as a revivor of a suit at law. If the Plaintiff dies before the last day in Bank, the writ is gone: the representative may have the same cause of action: but he cannot take up the suit; therefore there can be no such thing strictly as a revivor at law, except where there was a judgment; which may be pursued by Scire facias: if against a representative, he may show cause against it. The judgment constitutes a debt of itself, which is to be paid out of the assets of the deceased: or where the abatement is by the death of the Plaintiff, the representative is entitled to avail himself of the benefit of that judgment. Since that period it has been held, and is quite, I take it, a settled (1) 1 Dick. 16. (2) 2 Ch. Rep. 127. rule, that where costs are payable out of a fund, there may be a revivor for them. In Edgill v. Brown (1), 23d July, 1732, the decree was not enrolled: but Lord King laid aside the idea, that to constitute the demand by the representative of the Plaintiff for the costs taxed enrolment was necessary. The Master had [* 197] * made his report. It was held, that, whether the decree was enrolled, or not, it should have the same effect, as a judgment at law would have; and the revivor was proper. Lord Hardwicke in White v. Hayward (2) followed this upon the same ground as Lord King's. There the Defendant was in execution for the costs: the Plaintiff died; and the Defendant applied to be discharged: Lord Hardwicke held, that the right to the costs did not die: but as it was objected for the Defendant, that there might or might not be a revivor, he made an order, that the representative should revive within a certain time; and if she did not, the Defendant should be discharged: but he allowed the revivor. In Blower v. Morret, 23d April, 1754 (3), costs decreed out of the estate were held to be a lien upon it, though the party, to whom they were awarded, died; and it was held, that they might be recovered; and it was only necessary to bring the party before the Court. There are many other determinations by Lord Hardwicke and Sir Thomas Clarke upon the same ground, that where costs are payable out of the estate, they are not lost by the abatement. Price v. Humphrey (4), 17th July, 1766, before Lord Camden, is exactly a parallel case to this before me. The bill was to set aside deeds for fraud; which was decreed with costs. The revivor was only for the costs, the Plaintiff being dead. The deeds had been delivered up. A demurrer was put in upon the ground, that the costs were not taxed. Lord Camden over-ruled the demurrer; as the deeds were set aside for fraud; and held, that the costs should be paid. There was a demurrer in this cause, which I over-ruled upon a point, that has nothing to do with this question; it did not appear upon the bill, that the deeds had been delivered up. The answer now puts an end to that by stating, that all the decree has been executed. In a late case before Lord Thurlow the Master had taxed the costs; but the Plaintiff died, before the report was signed. Lord Thurlow ordered the Master to sign his report. Signing the report is the last act in Court, like a judgment at law; but Lord Thurlow held, the representative was entitled to his costs. I mention this more particularly, because there was a case before Lord Bathurst, Askew v. Townshend (5), in which the proceedings before the Master had gone a considerable length. The bill was for an injunction to stay proceedings at law. I think, it was upon some leases at Tottenham; Alderman Townshend had taken an advantage under the (1) 1 Dick. 62. (2) 2 Ves. 461; 1 Dick. 173. (5) 2 Dick. 471. leases, after houses were built, to which this Court thought he had no right. A perpetual injunction was granted with costs against the Defendant; and a demurrer was put in to a bill of revivor upon the Plaintiff's death; and the demurrer was allowed upon a recent authority in the Exchequer. This case was cited to Lord Thurlow; who thought it not fit to be followed: and gave the costs by directing the Master to sign his report; which, if it had been done, would have brought it up to the case of a judgment at law. Upon this course of authorities, setting aside the matter of form, which does not apply to this Court, whether the costs are a duty, or not, I think, it is fairly open. The Court had created that duty. The Court has determined, that the Plaintiff had a good equitable title, as he certainly had a good legal title, to have these deeds set aside. This Court having directed the trial, the party having properly sought his relief here, which I suppose he was obliged to do from not being able to give evidence at law, and prevailing in both cases, it would be very hard, if all the expense of the recovery should be entirely lost. That case before Lord Camden cannot be distinguished from this. If there upon the ground of a duty, which ought to be discharged by the Defendant, the Plaintiff's representatives had by the judgment a vested right to recover the costs, there can be no reason for me not to follow that, and establish it so far at least, that where the Plaintiff dies after a judgment for costs, though not taxed at his death, he may by a decree for revivor have those costs. When the case occurs of an abatement by the death of the Defendant, as to which I determine nothing, it will then be fit to consider, whether the inconvenience of drawing the account of assets in this Court will prevail against the principle, that seems very just and very fit to be followed. SEE, ante, the notes to S. C. 2 V. 313. BEMPDE v. JOHNSTONE. GRAHAM v. JOHNSTONE. [1796, JUNE 12.] THE personal property of an intestate, wherever situated, must be distributed by the law of the country, where his domicil was; which is prima facie the place of his residence: but that may be rebutted and supported by circumstances. (a) GEORGE, late Marquis of Annandale, died in 1792, intestate, without issue and a lunatic. The question, upon which these causes were (a) The universal doctrine, now recognized by the common law, although formerly much contested, is, that the succession to personal property is governed exclusively by the law of the actual domicil of the intestate at the time of his death. |