keep him off with. That is a difficulty that has not been touched upon, and I have not been able to get over. Certainly the common practice has been to make them all parties. Unless they can show me cases, I will not travel into the question, or vary what seems to have been the course of the Court, in this instance, where there is but this one incumbrancer, and that appears by the answer. I am perfectly satisfied, the general course of the Court and almost universal practice has been to insist upon any one having a right to redeem being made a party; and the principal reason is the gross injustice, that you may compel a mortgagee to re-convey to a mortgagor; where it appears by his own answer, he has no right to it. Therefore I will not exercise my discretion in such a case as this, unless they can show me cases. Mr. Graham and Mr. Cox, for the Plaintiff. The objection was over-ruled in Draper v. Jennings, 2 Vern. 518. Sherman v. Cox, 3 Chan. Rep. 46. In Needler v. Deeble, 1 Chan. Cas. 299, it was expressly denied, that the account must be taken over again. In the case put by the Court of a mortgagor redeeming merely to get the legal estate the Court would decree a redemption, but would not re-convey without giving the second mortgagee an opportunity of filing a bill. * Master of THE ROLLS. in Vernon is, that it does not clearly; for an infant may be cree against him. He can do nothing but show error. closed to all intents. You may go to market with it; and the purchaser is only liable to be overhauled in the account (1). One great fault of the case [*317] He is fore Where there is only one single incumbrancer, what occasion is there to go out of the common rule? The usual and common practice almost without exception is to make all incumbrancers parties. If I lay down, that it is absolutely necessary, I arm a man with a shield to ward off a foreclosure. But the question is, whether it is not proper in this case: I think, it would be too much to refuse it, where there is no affectation of delay, that I can see. I do not think the general point so clear as to determine it upon this case. I hope, the Court is not bound to insist upon all incumbrancers being parties but I am perfectly satisfied, that in this case it is by much the least evil to order the cause to stand over, till this single incumbrancer is made a party (2). [The following note relates to the same case, post, 5 V. 113; and to the Bishop of Winchester v. Paine, 11 Ves. 194.] 1. In all cases, whether of redemption or foreclosure, the parties entitled to the whole mortgage money must be brought before the Court. Palmer v. The Earl of Carlisle, 1 Sim. & Stu. 425. 2. A decree of foreclosure will bind a mortgagee who becomes such pendente (1) See other authorities, 1 Fonb. Tr. Eq. 82; post, Spencer v. Boyes, vol. iv. 370; Williamson v. Gordon, xix. 114, and the note, vii. 211. (2) Post, The Bishop of Winchester v. Paine, vol. xi. 194; xii, 58; 2 Ves. & Bea. 207; 3 Ch. Rep. 47. : lite and it is not necessary to make such subsequent mortgagee a party to the suit; if it were the proceedings might be rendered interminable. Garth v. Ward, 2 Atk. 175; Metcalfe v. Pulvertoft, 2 Ves. & Bea. 205; Gaskell v. Durdin, 1 Ball & Bea. 169. Upon the same principle, the pendency of a suit respecting an estate will affect a purchaser of that estate. Lloyd v. Passingham, 16 Ves. 66; Parkes v. White, 11 Ves. 236; Preston v. Tubbin, 1 Vern. 286. A lis pendens is not constituted merely by serving a subpæna, unless a bill is actually filed; but the bill being filed, the lis pendens commences from the service of the subpœna, although that may not be returnable till the following term. Anonymous case, 1 Vern. 318. A decree, however, is not an implied notice to a purchaser after the cause is ended, it is the pendency of the suit which creates the notice: and it was declared by Lord Hardwicke, it would be very inconvenient, where money is secured on an estate, and there is question depending in the Court of Chancery concerning the right to, or otherwise in respect of, that money, but no question relating to the estate on which it is secured, the matter being wholly collateral, if a purchaser were held to be affected with notice, by such implication, as, in the eye of the law, the pendency of a suit creates. Worsley v. The Earl of Scarborough, 3 Atk. 392. The case of Self v. Madox, 1 Vern. 459, is not in contradiction of Lord Hardwicke's rule, that after a decree, final in its nature, there remains no lis pendens by which parties, who subsequently purchase the litigated property, can be affected with notice. It is true that, in Self v. Madox, a decree had been made, not merely for an account, but ascertaining the right of the plaintiff; still, an option was left to the defendant as to which of two very different modes of satisfaction should be pursued; a farther application to the Court must, therefore, have been contemplated as probable at least, and the case may fairly be considered as a case of lis pendens, not as a cause ended. It was said, in Wyatt v. Barwell, 19 Ves. 439, that where the holder of a deed affecting lands, situated in a register county, has neglected the precaution of having the deed registered, a lis pendens respecting the said lands will not, per se, be deemed notice for the purpose of postponing a subsequent deed which has been duly registered: and see, post, the note to Jolland v. Stainbridge, 3 V. 478. 3. The time first fixed for payment of money due on mortgage is usually enlarged, when the mortgagor is defendant to a bill of foreclosure. Monkhouse v. The Corporation of Bedford, 17 Ves. 382; Renvoize v. Cooper, 1 Sim. & Stu. 365. And see, post, note 3, to Bastard v. Clarke, 7 V. 489. This practice, however, is not quite of course, and has been disapproved; Quarles v. Knight, 8 Price, 630: it will, therefore, not be extended to a case in which the mortgagor is plaintiff in a bill for redemption; by bringing such a bill, the plaintiff professes that his money is ready, and he cannot be permitted to offer payment at a distant period. Novosielski v. Wakefield, 17 Ves. 418. But though dismissal of a bill brought for redemption, in consequence of non-payment of the money at the day appointed, operates as a foreclosure, dismissal for want of prosecution has not the same effect; the mortgagor may file another bill for the same matter. Hansard v. Hardy, 18 Ves. 460. 4. As to taking a decree pro confesso, see, ante, the notes to The Attorney General v. Young, 3 V. 209. 5. That a decree of foreclosure may be made against an infant, giving him a day to show cause, see Goodier v. Ashton, 18 Ves. 83; Spencer v. Boyes, 4 Ves. 371: but, by consent, a sale may be directed instead of a foreclosure, if that course will be for the benefit of the infant. See, post, note 5, to Spragg v. Binks, 5 V. 583. HOLMES v. CRADOCK. [ROLLS.-1797, FEB. 20, 24.] A LEGACY upon an express contingency, which never happened, failed, notwithstanding the apparent intention in favor of the legatee. (a) Condition not to be extended to a limitation over, [p. 320.] Words not to be rejected, unless repugnant to the clear intention, manifested by other parts of the will, (b) [p. 320.] WILLIAM SISSON by his will gave and devised all his freehold, copyhold and leasehold, estates in the county of Durham to his cousin Francis Holmes of Darlington, his heirs, executors, administrators and assigns, upon trust to pay to the testator's wife Elizabeth an annuity of 1007. for life, in satisfaction of 18097. settled upon her as a jointure; and upon farther trust to pay the residue of the annual profits of the said estates to the testator's son William Sisson during the life of his mother, as he might have occasion for the same; reserving as much, as he Francis Holmes might think necessary for repairs, taxes, fines upon renewal of leases and admission to the copyhold estates, if there should be occasion to renew the same during the life of his said wife; " and if my son should happen to die before his mother without leaving a widow or child, then in trust, that he shall and do pay all such profits of my estate, as should have been paid to my son, to my said wife for her life, except and reserving as aforesaid ;" and subject to the said trusts, that the said * Francis Holmes shall stand seised to the use of the [*318] testator's said son William Sisson, his heirs and assigns for ever" subject and chargeable with the legacies hereinafter given and bequeathed to the said Francis Holmes, Elizabeth Lumley and William Sisson of Penshaw;" and because his wife by reason of her ill state of health might have occasion at certain times for more money, than she can bear out of her annuity, he gave to his relation Francis Holmes the sum of 500l. out of his personal estate, in trust after six months after his decease to pay her so much of the said sum from time to time with lawful interest from six months after his decease, as she may think fit; and he gave to his wife 50l. to be paid as soon as conveniently might be after his decease for mourning and to supply her other occasions, till her annuity becomes due; "and if my son shall die leaving my wife without leaving a widow or any child after his death and my wife's I give and bequeath to my kind friend and relation Mr. Francis Holmes of Darlington the sum of 500l. to my niece Elizabeth Lumley the sum of 500l. to my relation the Reverend William Sisson of Penshaw in the county of (a) This seems to fall under the same principle stated in ante, p. 302, note (a) to Scott v. Chamberlayne. (b) Ut res magis valent quam pereat. Every will is to be so construed that it should rather stand than fall, if such construction can be reasonably put upon it. Davis v. Taul, 6 Dana, 53. Every sentence and word in a will must be construed. Turbett v. Turbett, 3 Yeates, 187. Durham the sum of 300l. which several legacies I charge upon my real estate hereinbefore limited to my son and his heirs, and I do subject the same to the payment thereof: " but if any of the legatees shall die, before their respective legacies becomes due, the legacy or legacies of the person or persons so dying were directed to become void. He gave to Francis Holmes all his household furniture, money, plate, linen and pictures, in trust to permit the testator's wife to use and enjoy the same, till his son should marry; she giving a schedule to Francis Holmes; and if his son should marry in the lifetime of his mother, upon trust to divide the said goods, plate, &c. between his wife and his son: but if his wife shall die before his son, he gave all the said articles to his son, his executors, &c. that are not sold and disposed of by his wife and son with the consent of Francis Holmes. Then he gave a legacy to a servant, if living with him at his decease "and I give and bequeath to my good friend and relation Mr. Francis Holmes the sum of 401. for mourning.' He gave all the rest and residue of his real and personal estate after debts, legacies, &c. paid, to his son William Sisson, his executors, &c.; and appointed his son and his good friend and kinsman Mr. Francis Holmes executors; and he directed, that Francis Holmes might deduct or retain out of his personal estate or the rents and profits of the real estate directed to be paid to his son all costs, &c. incurred in the execution of the trust, and not be answerable for more, than he shall actually receive. The testator died in January 1773. His wife died in July in the same year. Their son William Sisson died in 1794 above the age of twenty-one, and did not leave either a widow or child; upon which the bill was filed by Francis Holmes for payment of his legacy of 500l.; and the question was, Whether he could claim it in the event, that had happened. [*319] Mr. Piggott and Mr. Lloyd, for the Plaintiff. The manner, in which this legacy is given, is a mere mistake. The meaning is, that the legacies are not to be raised during the life of the wife. The words "after his death and my wife's" are superfluous and absurd, unless intended to mark the time of payment; for he had before given to his son the fee-simple of the estate charged with these legacies, subject to an estate for life to his wife. There is therefore no condition precedent. This legatee appears to have been a very favorite object to the testator. Mr. Graham and Mr. King, for the Defendants. This is a decided case. The point is exactly that in Doo v. Brabant, and Calthorpe v. Gough, 3 Bro. C. C. 393, 395. There never were stronger cases than those. I admit, in the event, that has happened, the testator did not mean the legacies to fail. It is a circumstance, to which his mind did not advert; quod voluit non dixit. There is no possibility to get rid of these words. The construction attempted is unnatural and contradictory to the preceding part. Words, that are contradictory, may be rejected; but not those, that are merely absurd and improvident. That is the distinction. MASTER OF THE ROLLS [Sir RICHARD PEPPER ARDEN]. This is most like the late case of Denn v. Bagshaw, 6 Term Rep. B. R. 512; which is a very strong case. I think, I cannot get rid of these words. It is really a legal question: but I will give my opinion, if they do not wish to have a case made. Feb. 24th. The proposal to have a case made was declined. MASTER OF THE ROLLS. I am afraid, I must decide against the legatee. I am perfectly satisfied as to the intention: but it is not sufficiently expressed to enable me to execute it. [*320] The will requires to be very minutely considered. It must be observed, that the testator gives the rents and profits to his son during the life of his mother, not during his own life. Then he takes up the case of the death of the son during the life of the mother. The question is, whether these are legacies at all events to be paid upon the son's dying without a wife or child, or only upon that contingency happening in his mother's life. One cannot help wishing, and straining as far as one can, to support what must be supposed to be the intention: but it is impossible for the Court to indulge speculations against the heir, unless it is manifest, that the testator intended, that these legacies should be raised in the event, that has happened. It has been determined, that conditional limitations shall never be extended beyond what is absolutely necessary from the context of the will, and shall not be supposed to govern any disposition except that, upon which they may naturally be supposed to attach. Therefore if a testator says in his will, that if his wife shall be enceinte at his death, and a son shall be born, he gives to that son, and after his death, over, the condition has been construed only introductory of the gift to that son, if born, and not to govern the limitation over. I have tried to extend that principle to this will. If it had been simply a gift to the son for life, then if he should die before his mother without a wife or child, to her for life, and subject to these trusts, to the son in fee chargeable with these legacies, I should have held it an absolute charge at all events upon the reversion, and to be raised, whether he died without a wife or child in the life of his mother or not: but when I read these words "chargeable with the legacies hereinafter given," I am bound to look, what are those legacies; for he gives no legacies except by reference. Can I reject these words, "leaving my wife," and decide, that he must have intended these legacies to be raised at all events, whether the son survived his mother or not? I should in my opinion be going much farther, that I am warranted, by totally rejecting words, unless they are repugnant to the clear intention manifested in other parts of the will. Nothing is given but a mere contingency upon a particular event; and when one considers what the intention might possibly be, there might be a reason for the intention, that these legacies should not arise but in that event. If the son died leaving a wife or child, even the widow was to have no life estate. It is natural to suppose an intention, that she should have it; but he has thought |