IN PARLIAMENT.] THE MARYPORT IMPROVEMENT HARBOUR AND DOCK BILL. By the REFEREES.-The locus standi in this case is disallowed. Locus standi disallowed. Objection to the locus standi of the Right Honourable GEORGE LORD LECONFIELD. Locus standi-Extension Bill by harbour trusteesRights of fishery in river the water of which it is proposed to take and divert. A Bill was promoted by harbour trustees to obtain powers to construct a new dock and other harbour works, and to take and divert from a river and a mill-race, shown on the deposited plans, such water as might be required for the waterworks proposed by the Bill. A petition was presented against the Bill by the owner of coal mines in the neighbourhood of the harbour, alleging that new and excessive rates, proposed to be authorised by the Bill, would diminish the royalty payable to the petitioner by the lessees of his wines, such royalty being calculated according to the amount of the tonnage rates and shipping dues. That the petitioner had rights and privileges over the waters of the river proposed to be diverted and its fisheries, and that a dam erected across the river could not be removed for the purpose of improving the fishery if the Bill became law: Held, that the petitioner was entitled to a locus standi. This was a petition against the Maryport Improvement Harbour and Dock Bill by the Right Hon. George Lord Leconfield, of Leconfield, in the county of York. The petition, after stating the powers conferred on the barbour trustees by 3 & 4 Will. 4, c. cxiii., and that under these powers a wet dock had been constructed and the harbour improved, proceeded: That by the Bill the trustees apply for an extension of the district under their control, and for further powers for sanitary purposes, and for the general regulation, improvement, and good government of the district, for establishing waterworks and gasworks, and for the maintenance, regulation, and improvement of the harbour, and for making a new dock and half-tide basin connected therewith, and other works. That the new dock and other works connected with the harbour are more particularly defined in the 200th clause of the said Bill; and the said Bill further authorises the trustees to take certain tonnage and other rates on goods exported from and imported into the said harbour. That your petitioner is owner of extensive mines of coal and other minerals in the neighbourhood of the town of Maryport, which is the natural and most convenient port of shipping for the coals and minerals raised from the mines of your petitioner. That the lessees of your petitioner's mines in some instances pay a royalty to your petitioner based upon the selling price of coal in the port of Maryport, after deducting the cost of carriage and tonnage rates and shipping dues; and, consequently, your petitioner's income from his said mines will be proportionately diminished if any unnecessary or undue increase be made in the tonnage rates and shipping dues levied in the said port. That your petitioner admits that some additional accommodation may be needed in the harbour of Maryport, but your petitioner is advised that such additional accommodation is not required to any great extent, as the coal trade, which is the staple trade of the port, is not likely to increase in a large degree. That your petitioner is further advised that by the extenBion of the existing docks the trustees might, with a comparatively small outlay, amply provide for any increase of trade which is likely to take place, and that such increased accommodation may be afforded without imposing upon the trade of the district and port, and more especially upon the coal trade, the excessive rates and tolls proposed to be authorised by the said Bill. That your petitioner submits that the extension of the harbour, as shown by the deposited plans, is badly designed and laid out, and that the site of the proposed new docks is wrongly selected, and that such extension and new docks will not accomplish the objects for which they are projected, and that the deposited estimate of the expense of the works is insufficient. That the rates and tolls proposed to be authorised by the said Bill are not only excessive in amount but are unequal and unfair in their pressure, the rates and tolls upon vessels trading to foreign ports being fixed at too low a rate as compared with those charged upon vessels trading coastwise. [IN PARLIAMENT. That the proposed rates and tolls will impose an undue burthen upon the coal trade in the said port, and thus seriously diminish the income derived by your petitioner from the said mines. That, as your petitioner is advised, the existing scale of rates and tolls levied in the said port is amply sufficient to provide all necessary increase in the harbour accommodation, and your petitioner therefore submits that should the House see fit to sanction the proposed works for the benefit of the town of Maryport, the cost of such extension should be defrayed from other sources than rates and charges upon those articles of trade for which the extension is not requisite. That it is proposed by the said Bill to authorise the said trustees to take and divert from the river Derwent, and the mill-race shown on the deposited plans and sections, such water as they may require for the waterworks proposed under the said Bill. That your petitioner is the owner of the Castle of Cockermouth, in the county of Cumberland, and that the mill-race referred to flows out of the river Derwent, at a place in the pleasure-grounds pertaining to your petitioner's said Castle of Cockermouth, and within view of the windows of the principal rooms. That your petitioner and his predecessors, lords of the honor of Cockermouth, have been, and your petitioner still is, entitled to numerous rights and privileges in and over the waters of the river Derwent and the fisheries therein, and a dam has been erected across the said river, immediately under your petitioner's said castle, in order to facilitate the flow of water into the said mill-race referred to in the said Bill, for the continuance of which dam your petitioner annually receives a rent. That, for the purposes of improving the grounds belonging to your petitioner's said Castle of Cockermouth, and the salmon fisheries in the river Derwent, it may be of great importance to remove the said dam; but should the said Bill pass into law as it now stands, your petitioner's present existing power of so doing would be entirely destroyed. That your petitioner is advised that the site and source of the intended waterworks are improvidently chosen, and that the reservoirs are badly designed, and that a source of supply nearer to and more convenient for the town of Maryport, and affording a better and purer supply of water, can readily be found. The petition concluded with the usual prayer for a locus standi against the preamble and clauses of the Bill. Granville Somerset for the petitioner.-Lord Leconfield is entitled to a locus standi. It cannot be objected that the lessees of his mines are the only persons who may have a right to be heard, as by the arrangements with those lessees the petitioner is practically a partner in the mining operations. In the North Staffordshire Railway Bill, Stone & Graham's Rep. 61, a locus standi was granted to the owners of mines and minerals against an "omnibus' Bill like the present one. In the London and NorthWestern Railway, Ib. 63, a locus standi was granted against an extension Bill on the ground of an alleged inequality in the rates, tolls, and charges. So in the Swansea Canal Transfer Bill, Ib. 69, a local board of health was allowed a locus standi against a Bill for transferring a canal to the promoters, the petitioners complaining of the unfairness of the existing charges. The petitioner has received notice that water will be taken from the river Derwent. [Mr. RICKARDS.-The petition states that Lord Leconfield has rights and privileges in the stream, but it does not say that he has any ownership of the stream.] It has been decided that a right to a fishery is prima facie evidence of ownership of the water. A. S. Hill for the promoters.-Lord Leconfield has no locus standi. He has leased his mines to others and parted with all control over them; and to give him a locus standi, as well as his lessees, would needlessly multiply the opposition against the Bill. The petition merely states that he has rights in the water, but this allegation is vague and indefinite. It is not stated that he has a several fishery or anything to entitle him to ownership of the water of the river. The cases cited arose on the consideration of Bills which have no resemblance to the present one. In each case complaint was made of the existing rates. The grievances of the petitioner are imaginary, and CHAN.] BELL v. WILSON. [CHAN. his interest in the river is too trifling to allow him to be heard as a landowner. | Wilson, and all and every other person and persons seised or entitled, either at law or in equity, of or to the closes of land, "all mines and seams of coal and By the REFEREES.-The locus standi must be other mines, metals, or minerals, as well opened as allowed. Locus standi allowed. Equity Courts. COURT OF APPEAL IN CHANCERY. Reported by THOMAS BROOKSBANK and E. STEWART ROCHE, Esqrs., Barristers-at-Law. Jan. 22 and March 8. (Before the LORDS JUSTICES.) BELL v. WILSON. Conveyance of land-" Mines and minerals"-Reservation of-Freestone-Mining-Quarrying. In a conveyance of lands in Northumberland there was a reservation in favour of the vendor of "all mines and seams of coal, and other mines, metals, and minerals under the land." The parcels of land had become rested in the plts., and the mining rights in the defts. A bed of freestone of considerable thickness lay at the depth of from about six feet to forty feet beneath the land, and the defts. began working the stone by open quarrying, thus rendering unprodictice a large part of the plis.' land. Upon bill filed to restrain the defts.: Held (differing from Kindersley, V. C.), that the freestone was to be considered as a mineral, and was included in the exception contained in the contegance: But (agreeing with his Honour), that the defts. were not entitled to win or get the stone by surface works, or otherwise than by underground mining; and the direction of the court below, that an account should be taken of the stone obtained by improper working, was confirmed. This was an appeal by two of the defts. against a decree of Kindersley, V. C., made according to the prayer of the bill, by which the plts. (a married lady and her trustee) sought to restrain the defts. from working mines or quarries in Northumberland, under circumstances which sufficiently appear in the judgment of Turner, L. J., and in the former report, 12 L. T. Rep. N. S. 529. Baily, Q. C. and Burdon, for the plts., the resps., referred to Jacob's Law Dict. "Mines" (ed. Tomlins); Brown v. Chadwick, 7 Ir. Com. Law Cas. 101; King v. Dunsford, 2 Ad. & Ell. 568; Giffard, Q. C. and Stevens, for the defts. appealing, cited Johnson's Dictionary, "Mine," "Quarry;" Micklethwait v. Winter, 6 Ex. 644; Earl of Cardigan v. Armitage, 2 B. & Cr. 197; not opened, within and under the said closes, or parcels of land mentioned and intended to be hereby granted and released, with full liberty to search for, dig, bore, sink, work, win, and take, lead and carry away the same;" and, generally, "to exercise, do, and perform every liberty, matter, and thing respectively for digging, sinking, winning, and working the said collieries, mines and minerals." The closes of land conveyed by this deed have become vested in the plt. Elizabeth Ann Bell for her life, for her separate use, with limitations in remainder to several other persons for their lives, with remainder to their issue, and an ultimate remainder which has become vested in the plt. Elizabeth A. Bell. The mines excepted and reserved by the deed have become vested in the deft. Fredk. William Wilson, who, by an indenture bearing date the 2nd Oct. 1858, has demised the quarries and beds of stone under some of the closes which are alleged to have been part of the excepted property for a term of ninety-nine years to his son, the deft. George Besley Wilson, who has again, by an agreement, dated the 4th Dec. 1862, demised the same quarries and beds of stone to the deft. John Simpson. The closes of land comprised in the deed of the 10th Feb. 1801 are on the surface thereof of the clay and shale formation overlying a bed of freestone, beneath which there is a seam of coal under which there is another bed of freestone. The first-mentioned bed of freestone is at a depth varying from about six feet to about forty feet below the surface of the closes, and it varies in depth or thickness from about thirty-six feet to about seventy feet. In or about the year 1855 the deft. Fred. W. Wilson began to work the stone under the surface of the closes by open quarrying, that is to say, by first removing the soil overlying the stone, and then digging out the stone; but these workings not being then found profitable were soon afterwards abandoned. In the month of Dec. 1862, however, the deft. Jno. Simpson began again to work the stone under some of the closes by the same process of removing the soil to a depth varying from six feet to twenty feet below the surface for the purpose of quarrying the bed of freestone, and thereupon, after some previous correspondence objecting to this course of proceeding, the bill in this cause was filed on the 10th Nov. 1863, stating to the effect aforesaid, and praying "that an account may be taken of all and singular the stone which has been wrought and gotten by the deft. John Simpson, and of the proceeds arising from the sale thereof; and that the defts., F. W. Wilson, Geo. Besley Wilson, and John Simpson, or one of them, may be decreed to pay to the plt. Nathaniel Fred. Ellison, as such trustee, what may be found to be due to him on taking such account; that it may be ascertained what amount of damage has been sustained by the plts. in working the freestone, and that such damage may be assessed and paid, and that the defts. may be restrained from working the bed of freestone or sandstone, and from vending or removing the stone which may have been wrought or gotten therefrom, and from injuring, the surface of the fields, and generally from taking any steps or doing any acts for the purpose of working such stone. Baily, Q. C. having replied, judgment was reserved | The deft. Fredk. Wm. Wilson, by his answer to the until the 8th March, when Lord Justice TURNER said :-In this case Richard Wilson and others, by an indenture bearing date Feb. 10, 1801, granted, released, and conveyed several closes of land situate at Long Benton, in the county of Northumberland, to Henry Utrick Reay, in fee, except and always reserved to the said Richard bill, insists that the bed of freestone is within the exception contained in the deed of the 10th Feb. 1801, and he sets up a case of knowledge and acquiescence on the part of the plt. Eliz. Ann Bell, but this case was not much, if at all, relied upon at the bar, and whatever its effect might have. been upon an interlocutory application, it cannot certainly furnish any defence at the hearing of the CHAN.] BELL v. WILSON. [CHAN. but this argument cuts both ways, for it may well be that the general words were inserted in consequence of that knowledge. cause. It may, therefore, be laid out of considera- | ing the previous grant, this might be considered to tion. The only evidence in the cause in any way show an intention that the exception should include material to the questions before us is contained in the freestone; but I do not think this would be the admissions between the parties, which admissions case. It is argued for the plt. that it appears from are in part as follows:-The solicitors of the parties, the deed that the parties must have known the posion their behalf, admit that the estate at Long|tion of the different strata in these closes of land; Benton, in the pleadings mentioned, is of the sandstone formation, and part of the bed of sandstone or freestone in the pleadings mentioned is about six feet below the surface of the said estate, and that a portion of the bed is of sufficient thickness to be capable of being worked by means of underground workings, yet that there has been up to this time no instance of any underground workings of freestone in the county of Northumberland. That by the means in the pleadings mentioned, a space containing four hundred and forty-six square yards, measured on the surface of the field called the Lodge-field, has been excavated to the depth of nineteen feet by the removal of soil and stone, and at the bottom of this excavation is a platform of stone, on which water rests, and a space of 2291 square yards, measured on the surface of the Lodgefield, has been rendered unproductive for the time being by the deposit upon it of the soil and rubbish taken out of the said excavation." Upon the hearing of the cause before Kindersley, V. C., his Honour made the following decree :First, an account of the stone which had been wrought and gotten by the deft. John Simpson, and of the proceeds of sale thereof; secondly, an inquiry what amount of damage had been sustained by the plts. in working the freestone mentioned, and that the deft. Simpson should pay the amount found due upon the accounts and inquiry within twenty-one days from the certificate of the chief clerk; and thirdly, that a perpetual injunction should be awarded to restrain the defts. from working the bed of freestone or sandstone, and from vending or removing the stone which might have been wrought or gotten therefrom, and from injuring the surface of the field, and from taking any steps or acts for the purpose of working such stone, and that the defts. should pay to the plt. the costs of the suit. The defts. Fred. Wm. Wilson and Geo. Besley Wilson have appealed from this decree. The questions upon this appeal are, whether under the exception contained in the deed the defts. are entitled to the upper bed of freestone, and whether, if they are so entitled, they are entitled to get the stone by the mode of open quarrying which they have adopted. Upon the first of these questions I regret to say that I find myself unable to agree in the conclusion at which the V. C. has arrived. The words of this exception are most general and comprehensive, and if it can be held that the freestone is not included in these words, it can only be, as it seems to me, upon one or other of these grounds: either, that the freestone is not a mineral, or that, being a mineral, the nature or context of the deed shows that it was not intended to be included; but the cases are, I think, quite decisive upon the point that freestone is a mineral, and I can find nothing in the nature or context of this deed to show that it was not intended to be included in the exception. The V. C. appears to have considered that the intention was to reserve only that which was ordinarily gotten by mines in the county of Northumberland at the time of the execution of the deed; but the deed does not refer to what is ordinarily gotten, and I think this construction goes too far in cutting down the effect of the general words, which, as I take it in the absence of manifest intention or context to the contrary, ought to have their full effect. This construction would probably operate to prevent the general words extending to many other subjects than freestone. If indeed effect could not be given to the exception without destroy Upon the first question, therefore, I respectfully differ from the V. C.; but upon the other question I entirely agree in his opinion. I am satisfied that it was not intended by this deed that the freestone should be worked by the means which the defts. have adopted, or otherwise than by underground mining. The language of the exception points, I think, to this conclusion; it is an exception of mines" within and under the lands whether opened or unopened," words which are ordinarily used with reference to underground workings, and although perhaps it cannot be said that there are not words in the clause which might be construed to extend to and authorise workings upon the surface of the closes, it cannot, I think, be denied that the clause, taken as a whole, points much more strongly to underground workings. Some question was made in the course of the argument as to the meaning of the words in the deed, "mines, metals, or minerals," and I am much disposed to agree with the construction which Mr. Burdon put upon these words, that they mean mines whether of metal or of mineral. Then what is a mine? Upon reference to the lexicographical part of the Encyclopædia Metropolitana, I find it there said that the word "mine" is derived from the Latin word of the lower ages, minare, signifying ducere, to lead, and the interpretation of the word is to draw or lead; that is to say, a way or passage under ground, a subterraneous duct, cross, or passage, whether in search of metals or to destroy fortifications, &c.; and the cases of Rex v. The Inhabitants of Sedgeley, 2 Barn. & Ad. 65; and Rex v. Brettell, 3 Barn. & Ad. 424, seem to me to support this definition, to this extent at least, that mines are underground workings, and that this is so, I think much confirmed by the definition of the word quarries, which is to be found in the same dictionary. The word "quarry" is there stated to be derived from the French word " quarrier," and the derivation is followed by this description: In the Latin of the lower ages quadratarius was a stone-cutter qui marmora quadrat, and hence "quarrier," the place where he quadrats or cuts the stone in squares, the place where the stone is cut in squares, generally a stone-pit; clearly, therefore, referring to a place upon or above, and not under the ground. My opinion, therefore, on this second point entirely agrees with that of the V. C. The case, then, is in this singular position, that the defts. were entitled to the stone, working it by underground mining, but were not entitled to work it from the surface. The consequence, as I think, must be that the plts. are entitled to the account directed by the decree of what has been got by the improper working. There is not, I suppose, any dispute between the plt. and her husband the deft. Matthew Bell, and it is not, therefore, material to consider whether the plt. Elizabeth Ann Bell is entitled to the money which may be found due upon the account by virtue of her separate estate for life, or of the remainder in fee which is vested in her. The only question as to these moneys can be, whether the plt. Elizabeth A. Bell is entitled to them as against the persons having estates in remainder prior to the ultimate limitation in fee vested in her; and I think, upon the authority of the case of Bewick v. Whitfield, 3 P. Wms. 267, that she is so entitled. It was objected on the part of the defts. the Wilsons, that they had been im properly saddled with the costs of the suit; but I think that no decree could have been had against the deft. Simpson in their absence, and that they were therefore proper parties to the suit, and as they have contested the rights of the plt. I think they have been properly charged with the costs. In the result the declaration contained in the decree must be altered to meet the views which I have above expressed, but in other respects the decree will stand. Lord Justice KNIGHT BRUCE.-My view of the case is the same. Solicitors for the defts. appealing, T. G. Gibson, agent for G. Tallentire Gibson, of Newcastle-uponTyne. Solicitors for the plt., Cookson, Wainwright, and Co., agents for Clayton and Clayton, also of Newcastle-upon-Tyne. Thursday, Feb. 22. (Before the LORDS JUSTICES.) HOPE v. CARNEGIE. [CHAN. be the effect of this court declining to prohibit proceedings as to the landed estate in the Netherlands, my impression is that these proceedings ought not to be prohibited, and that the app. here should be at liberty, if she can do so according to the law of the Netherlands, to proceed there as she may be advised as to the landed estate in the Netherlands. Subject to that, I think that the order is substantially right. My opinion, however, as far as I have given it adverse to the order, is of no importance, because, as I understand from my learned brother, he is of opinion that under the special circumstances of the case the order should stand even as to restraining proceedings in respect of the landed estate in the Netherlands. The opinion of one of us alone would not affect the order; consequently, if I understand, which I believe myself to do, my learned brother's opinion rightly, the whole order will stand, although I dissent from a portion of it. Lord Justice TURNER Said:-I think that the whole of the order must stand to restrain proceedings as to the landed estate in the Netherlands; that is, I mean to restrain proceedings in the suit instituted, both as to the landed estate, and as to the personal estate, because, in my opinion, it rests upon the party makEng-ing this motion to show that in the suit which British subject-Domicil—Administration decree in has been instituted in the Netherlands it will be possible to distinguish the proceedings as to the landed estate from the proceedings as to the personal estate. I go no further than that, because it is unnecessary to go further on the present motion. If the applicant had come here upon an application showing the court that the landed estate in the Netherlands would be separated from the personal estate in the Netherlands, another and a different question would have arisen. I do not enter into that question at all; it is not before us on the present occasion. And it is also my opinion that we cannot upon this application extend adversely to the app. the order which the V. C. has made, so as to restrain the proceedings altogether in the Netherlands in respect to any part of the real estates. I am not at all sure how that question might ultimately stand this court, according to my view of the case as far if that application were brought before us, because as I have attended to it and I have looked pretty carefully into it-must necessarily take the question This was a motion on behalf of the deft. Emily as to the real estate in the Netherlands, and ascertain Mathilde Hope, one of the children of Mr. Adrian for itself what the law of the Netherlands is with John Hope, to discharge an order of Stuart, V. C., reference to this power which the testator had to granting an injunction whereby the app. was devise the estate, and with reference also to the restrained from prosecuting certain legal proceed-question whether, if he had not the power to devise ings commenced by her in the courts of the Nether- the whole estate, he had not at least the power to lands, but his Honour's order was to be without pro-devise one-fourth of the estate within the trusts of judice to any future proceedings as to the real the testator's will, and therefore to be dealt with in estate in that country. The case is reported at 13 this suit as supplemental to the suit instituted for L. T. Rep. N. S. 624, where the circumstances are the administration of the estate. And that brings sufficiently stated. the case very close upon the case of Bunbury v. Bunbury, 1 Beav. 318, in which Lord Langdale Swanston (with whom was Bacon, Q. C.) sup- dealt with the case on that principle, taking the ported the motion, and Knight Bruce, L. J. was of opinion that the injunction ought to be confined to proceedings as to the personal estate. The Attorney-General, Malins, Q. C., and Hemming his Honour's order, but they contended further, that that order ought at once to be extended so as to prevent all further proceedings in Holland with respect to the real estate also. Swanston having replied, Lord Justice KNIGHT BRUCE said :-My impression is that the order of the V. C. must stand, except so far as it restrains the proceedings as to the landed property in the Netherlands. It may, or it may not, be possible to proceed as to the landed property in the Netherlands without proceeding as to the personal estate. That must depend on the course of law in the Netherlands. Whatever may undertaking of the party who applied to this court for its intervention to be bound by any order which this court might afterwards make in order to use the proceedings in a foreign court, or for the purpose of determining a question which this court was compelled to determine, whether the estate did or did not pass. It appears to me that the whole matter had better be treated in this court. If the parties object to that, I do not think we can alter the order adversely to them at the present time. I think upon the whole the order must stand. Solicitor for the app., M. Abrahams. Solicitors for the plt. and other parties, Young and Jackson. ROLLS.] PETTINGER v. AMBLER. BUNN v. PEttinger. ROLLS COURT. Reported by H. R. YOUNG, Esq., Barrister-at-Law. Saturday, Feb. 13. PETTINGER v. Ambler. BUNN v. PETTINGER. Will-Settlement-Reservation of power to appoint by will-Subsequent will-Execution of power--1 Vict. c. 26, 88. 24-29. Where a testator made a will devising freehold property; then made a voluntary settlement of that same property, and thereby reserved to himself a power of appointing it by will; and afterwards made another will, which he called his last will, and whereby he charged the property with an annuity, but in no other way alluded to his first will: it was Held, that the former will did not operate as an execution of the power contained in the settlement. These suits were instituted for the administration of the trusts of a voluntary settlement executed by John Bunn, the testator in the causes, and of two testamentary instruments also executed by him. The outline of the facts of the cases (which will appear in detail from the judgment of the M. R. infra), is very shortly this: John Bunn, by his will dated the 3rd Aug. 1858, after making certain pecuniary and specific bequests, and some specific devises, devised and bequeathed the residue of his real and personal estates of or to which he should at his death be seised, possessed, or entitled, or of which he should then have power to dispose, to trustees upon trust for sale as therein mentioned; and then upon trust (after payment, out of the proceeds of such sale, of his debts and legacies) to pay and divide the surplus of the proceeds of such sale to and among the parties named in his said will; and the testator thereby revoked all former wills and codicils, and declared that to be his last will. On the 8th July 1861 the testator duly executed a codicil, and on the 9th July 1862 another codicil, by each of which he made some alteration in the specific devises and legacies, but in all other respects confirmed his will. By a voluntary settlement dated the 16th Aug. 1862, the testator conveyed all his freehold estates to Caroline Wightman and Anne Pettinger, as trustees, upon trust for himself for life, with remainder to Elizabeth Jane Ambler for her life; and from and after the decease of the survivor of him the said John Bunn and Elizabeth Jane Ambler, upon such trusts, and to and for such ends, intents, and purposes, and with, under, and subject to such powers, provisoes, limitations, and conditions as the testator should in or by his last will, or any codicil or codicils thereto, appoint: And in default of any such appointment, and so far as the same, if incomplete, should not extend, upon trust for the said Elizabeth Jane Ambler, her heirs and assigns. By the settlement now in statement, the testator assigned all his leasehold and personal estates to his said trustees upon trust for himself for his life; and from and after his decease upon trust for the said Elizabeth Jane Ambler absolutely. The testator by a will duly executed and dated the 6th Nov. 1862, which was designated by him therein as his last will, and which was made, or which purported to be made, in pursuance of the power in the voluntary settlement, bequeathed to the said Anne Pettinger an annuity of 100%, to be charged upon, and to be raised and paid out of his freehold hereditaments. By that will he also devised all his copy hold hereditaments to the said Caroline Wightman in fee, and appointed her and [ROLLS. the said Anne Pettinger his executrices; but the testator did not thereby refer to the former will and codicils, or either of them. The testator died in July 1863; and the first will, the two codicils, and the last will, were duly proved by the executors therein respectively named. The testator left the said Elizabeth Jane Ambler, and the several other devisees and legatees named in his wills and codicils, him surviving. The questions were: 1. Whether the will of 1858, and the codicils of the months of July 1861 and 1862, or any or either, and which of them, were or was a valid execution of the power of appointment reserved to the testator in and by the settlement of the 16th Aug. 1862, subject, of course, to the grant of the annuity of 100%.? Or, 2. Whether the testator had not, by the execution of the will of the 26th Nov. 1862, shown an intention that neither the previous will and codicils, nor any or either of them, should operate as such an execution of the power in the settlement? The nature and effect of the arguments in the suits will also sufficiently appear from the judgment of the M. R. infrà. Selwyn, Q. C. and Hardy appeared for the plts. in the first suit, and the chief defts. in the second. Jessel, Q. C. and Swanston for Elizabeth Jane Ambler. Baggallay, Q. C. and Renshaw for defts. in the first suit. Rowcliffe, Luck, and Bardswell for other parties. Selwyn, Q. C. in reply. Lord ROMILLY.-The principal question in these suits is, whether the will of John Bunn, the testator, which bears date the 3rd Aug. 1858 (and which was followed by two codicils), is a due execution of a power of appointment, contained in a settlement of the 16th Aug. 1862, under the statute of the 1 Vict. c. 26; or whether a contrary intention appears by a will, dated in Nov. 1862? The testator made a will on the 3rd Aug. 1858, and by it gave considerable legacies, and also made devises of his freehold, copy hold, and leasehold estates, which I do not think it is very necessary to go through in detail. By his will he professed to exercise all the powers vested in him, and he revoked all wills and codicils theretofore made, and declared that to be his last will and testament. In July 1861 and in July 1862 he made two codicils to his will. On the 16th Aug. 1862 he made a settlement of his property which was to this effect: it was made between the testator of the one part, and the deft. Caroline Wightman and the plt. (the deft. as she is there called) Anne Pettinger of the other part. By it, after reciting that he was absolutely scised, or well entitled to, certain hereditaments called the Humphries Farm, he conveyed to the said Caroline Wightman and Anne Pettinger all that farm and land situate at Magdalen Laver, near Ongar, called or known by the name of Humphries Farm, and also three freehold messuages in Weymouth-terrace, Hackneyroad, and also two freehold messuages in the Old Kent-road, and another freehold messuage in Coopersale, near Epping, and certain other pieces of land, and all other the freehold hereditaments and estates (if any) of him the said John Bunn, together with their appurtenances, to hold the same to the use of the said Caroline Wightman and Anne Pettinger, their heirs and assigns, upon trust for the said John Bunn for life; and after his decease, for the deft. Elizabeth Jane Ambler (otherwise Elizabeth Jane Bunn) and her assigns, during her |