to realty or to personalty, was not unreasonable; for, besides that the principle of the law as to personalty, unlike that affecting realty, was traceable mainly to the civil law, there was, in regard peculiarly to realty, one great motive, viz., the danger of extinction of contingent remainders, for adopting a rule by which an interest would vest as quickly as possible. But, in truth, Cripps v. Wolcott was not itself unexceptionable. No sufficient authorities and reasons were adduced, whether in the argument or the judgment, in that case, to bear out the decision.

Mr. North, for the corporation of Liverpool, asked for his costs.

Mr. E. R. Turner, in reply.-According to the rule as laid down in the maxim, "Ad proximum antecedens fiat relatio, nisi impediatur sententia," Noy's Maxims, 3survivors ought to be construed as equivalent to then surviving or then existing.

Phillips v. Deakin, 1 M. & S. 744.

LORD JUSTICE KNIGHT BRUCE (Nov. 23). -The controversy in the present case is as to the construction to be put on the word survivors contained in the will, dated in the year 1832, of Mr. James Gregson, who died several years ago, survived by all the persons mentioned in it. The will was: "I, the undersigned James Gregson, do hereby bequeath unto my wife Margaret Gregson," &c., "and on my wife M. Gregson's decease, my will is, that the whole of the above freehold properties situated as aforesaid shall be shared share and share alike amongst the following persons or the survivors of them, viz.," &c. The testator's widow has lately died, having outlived six and been outlived by the other six of the twelve persons who, besides herself, were named in it as devisees of his real estate. And, on her death, the question already mentioned has arisen between the surviving six and the representatives of the other six devisees in remainder, the surviving six claiming the whole, and the representatives of the other six disputing that claim, the dispute turning, I repeat, on the meaning of the word "survivors" as used in the will. Now that, if the instrument is read and construed according to the ordinary rules of the English language, as spoken and written by ordinary persons on ordinary occasions,-the word "survivors"

must be understood in the manner desired by the appellants, that is to say, as excluding the representatives of the deceased six, -is I think plain and clear. But it is said against the appellants, that the rules of English law concerning real estate, and especially concerning contingent remainders in real estate, as those rules existed before and when the will was made, render it incumbent on a Court to lean in favour of ascribing to the testator an intention to give to the twelve devisees in remainder respectively, if surviving him, interests vested at his death, and not as to any of them contingent interests or interests liable to be devested after his death. In support of this proposition Doe v. Prigg and many other authorities have been cited. It has not, however, nor could reasonably have been denied that the intention ascribed to the testator by the appellants was an intention which he had a right by law to entertain and effectuate if he thought fit, or that if he had inserted in the will such a clause as this, "It is to be observed that, by the word survivors,' I mean such, and only such, of the twelve devisees in remainder herein named as shall outlive both myself and my wife," the appellants would have been entitled to what they seek. And my opinion is, that the will in its actual state as plainly exhibits and declares the testator's meaning and intention, in using the word "survivors," to have been what the appellants contend, as if such a clause as I have just suggested had been inserted in it. The testator had a right to say, and, as I think, has said, that those of the twelve who should die, living his wife, should be excluded in favour of those of the twelve who should survive both her and the testator himself; and, if we are contradicting any authority in so holding, I consider that we are not contradicting Wilson v. Bayly, or any other authority binding on the Court.

LORD JUSTICE TURNER.-The question to be decided in this appeal depends upon the construction to be put on the will of J. Gregson the younger. My learned Brother has stated the substance of the will, and I will only add that it contains a clause, "And I further authorize my wife M. Gregson to sell my freehold property situated in Combermere Street, Toxteth Park, should she find that it would be advantageous to

the estate, and the proceeds, after paying the mortgage, to be appropriated to the sole use and benefit of my freehold property situated in St. Thomas's Buildings and St. Thomas's Court in the borough of Liverpool." The facts, as they have been stated by my learned Brother, were, that all the twelve devisees who were named in the will survived the testator, and six of them died in the lifetime of the wife, the tenant for life. The question has come into this court in consequence of the Liverpool corporation having, under the powers of the Liverpool Improvement Act, incorporated with the Lands Clauses Consolidation Act, taken part of the property devised by the will, the proceeds having been paid into court and invested in 1,8567. consolidated annuities. The widow died on the 29th of October 1863, and a petition having been presented soon after her death for the distribution of the fund, His Honour the Vice Chancellor, by the order made upon this petition, declared that, according to the true construction of the testator's will, and in the events which had happened, the devised estates vested at the death of the testator, subject to the life interest therein of the widow, in the twelve persons named in the will in equal shares as tenants in common, and he ordered the fund to be distributed accordingly, and he also ordered the costs to be paid by the corporation of Liverpool. It is from this order the appeal is brought. It is brought by several of the persons named in the will who survived the widow, the tenant for life, contending that the declaration contained in the order and the directions consequent upon it are erroneous, and that the fund ought to be divided amongst such only of the twelve persons named as survived the tenant for life.

The question which thus arises between the persons who survived the testator and those who survived the tenant for life certainly cannot fairly be stated otherwise than as a question of doubt and difficulty, having regard to the state of the authorities upon it; but it may as certainly be stated that it is in all cases purely and simply a question of intention. The sole question is, did the testator intend to give the property in question to such of the twelve persons named in his will as should survive him, or to such of them only as should survive both

him and his wife, the tenant for life, under his will? The answer to this question must, of course, depend mainly, if not wholly, upon the construction to be put upon the particular devise contained in the will. The terms of the devise have been already stated. The doubt which arises upon it is, to what period did the testator intend the survivorship to be applied to his own death, or to the death of his wife, the tenant for life? I will first consider this point without reference to the authorities.

The principle which, in this point of view ought to be applied to the determination, cannot, as I apprehend, be disputed. The words of a devise are to be construed according to their common and ordinary meaning, and in the sense in which they would be understood by persons of common understanding. The word "survivors" is a term of relation. It must have reference to some particular period of time. It is in this will placed in immediate connexion with the death of the testator's widow, the tenant for life under the will: "And on my wife's decease my will is, that the above freehold property shall be divided, share and share alike, amongst the following persons, or the survivors of them." No other period of time, except that of the death of the wife, is referred to by the testator. There is not in this clause, or indeed in any part of the will, any reference to the period of the testator's own decease. According to the ordinary and grammatical meaning of the word "survivors," it ought, therefore, as it seems to me, to be referred to the death of the tenant for life. Besides, every testator must prima facie be taken to assume that his devisees will survive him. The very fact of his devising to them proves that he is acting upon this assumption; for he must know that his will will take effect at his death, and that it cannot take effect in favour of persons who have died in his lifetime. Where, therefore, a testator uses words of survivorship with reference to his devisees, the words ought not, as I conceive, to be construed as referring to the event of the devisees dying in the testator's lifetime, if there be any other period to which they can reasonably be referred. If, indeed, the devise be immediate, the words must necessarily be referred to death in the testator's lifetime, for in that case there is no other

period to which they can be referred; and the testator, by using the words of survivorship, shews that he had in contemplation that the devisees might die in his lifetime. But if the devise be not immediate-if there be an estate created prior to the devise in which the words of survivorship are contained, it is surely more reasonable not to confine those words to the event of the devisees dying in the testator's lifetime; an event which the testator is prima facie to be assumed not to have had in his contemplation.

Considering this case, therefore, without reference to the authorities, it seems to me that, according to the true construction of this will, the property in question ought to have been held to belong to such only of the devisees in remainder as survived the tenant for life, and that the decision under appeal, if to be supported at all, must be supported, not upon principle, but upon the authorities. It is upon the authorities, indeed, that the Vice Chancellor has rested his decision. How, then, does the case stand in this point of view?

It is now perfectly well settled that in dispositions of personal estate words of survivorship are to be construed as referring to the period of distribution. This is established by Cripps v. Wolcott and a long train of decisions following upon that case; and it was not even attempted to be denied at the bar that this is the state of

the law as to personal estate. But it was said, that as to real estate the law is otherwise, and that in cases of devises of real estates words of survivorship are to be referred, not to the period of distribution, but to the period of the testator's death; and several cases were referred to in support of this position. The cases on which reliance was placed were Stringer v. Phillips (5), Rose v. Hill (6), Wilson v. Bayly (7), Garland v. Thomas (8), Edwards v. Symons (9) and Doe v. Prigg (10); and they are a fair sample of the many cases in which the same conclusion has been arrived at

(5) 1 Eq. Cas. Abr. 292; s. c. 1 P. Wms. 97, n. (6) 3 Burr. 1881.

(7) 3 Bro. P.C. 195.

(8) 1 Bos. & P. 82.

(9) 6 Taunt. 213.

(10) 8 B. & C. 231; s. c. 6 Law J. Rep. K.B. 296.

by the Courts of law; for it cannot be denied that the Courts of law have, as to real estate, leaned strongly in favour of the vesting at the death of the testator, whilst the Courts of equity have, as to personal estate, leaned as strongly to the vesting at the period of division. The cases upon this subject are indeed irreconcilable; and in saying so, I am only repeating what has been frequently said by other Judges. It is to be observed, however, as I have already said, that the question is one of intention, and that, in the great majority of the cases, there has been some context in the will which has been held to affect the decision. In Rose v. Hill and Wilson v. Bayly, for instance, there were other dispositions in the will which were taken advantage of to support the vesting at the death of the testator. In Stringer v. Phillips and Doe v. Prigg, however, there does not appear to have been any such context; and it was upon these cases, and especially upon the latter of them, that the respondents mainly relied. But these cases do not stand unaffected by adverse decisions. In Buckle v. Fawcett (11), a case in which both real and personal estate was involved, the Vice Chancellor, Sir James Wigram, notwithstanding the case of Doe v. Prigg was cited, held that the period of survivorship ought to be referred to the period of division; and in Taylor v. Beverley (12), which, however, was a case of personal estate only, my learned Brother came to a similar conclusion; and, what is more important, the House of Lords, in Wordsworth v. Wood (13), pointedly disapproved of the case of Doe v. Prigg. Whether this disapproval was meant to apply generally, or to apply only to survivorship being referred to the death of the testator in the case of a devise to a class, does not, indeed, appear; and I do not think, therefore, too much reliance ought to be placed upon the dicta in Wordsworth v. Wood; but in the subsequent case of Young v. Robertson (14), the House of Lords appears to me to have held very decidedly that the general rule must be taken to be that

(11) 4 Hare, 536.

(12) 1 Coll. C.C. 108; s. c. 13 Law J. Rep. (N.S.) Chanc. 240.

(13) 1 H.L. Cas. 129; s. c. 9 Law J. Rep. (N.s.) Chanc. 29.

(14) 4 Macq. 314, 319.

survivorship is to be referred to the period of distribution.

In this almost painful conflict of authorities, we must consider the reasons of the conflicting decisions. It is plain enough upon what the decisions as to personal estate have proceeded. They are founded, and, for the reasons which I have given, are, in my opinion, strongly founded, upon the intention of the testator; and we may confine our intention, therefore, to the decisions as to real estate. It was said, for the respondents, that the difference between these decisions and the decisions as to personal estate is attributable to the different sources from which the law as to real and as to personal estate is derived; but the governing question under both laws is, and has always been, treated as being the intention of the testator. The law is subordinate to the intention. It comes into force only when the intention has been ascertained; and it cannot, as it seems to me, constitute the medium by which the intention is to be ascertained. If, indeed, it was settled that in all cases of real estate the survivorship was to be referred to the death of the testator, and that in all cases of personal estate it was to be referred to the period of division, it might possibly be that a different intention ought to be imputed to the testator, according to the different nature of the property to which his disposition might apply. But as every case in which the question arises depends upon the intention to be collected from the will, it certainly cannot be said that the law is settled to this extent. I quite agree with the observations which the Vice Chancellor Sir James Wigram has made upon this point in the case of Buckle v. Fawcett. The cases as to real estate, in which the survivorship has been referred to the death of the testator, appear to have proceeded upon one or other of these grounds, that unless the vesting was held to take place at the death of the testator, the remainders would be contingent and liable to be destroyed; that, in order to avoid this and other inconveniences incident to the tenure of real estates, the law favours the early vesting of estates; and that the danger of lapse is avoided or diminished by the survivorship being referred to the period of the testator's death. But the danger of

lapse is common both to real and personal estate; and as to the other grounds, I confess it is not satisfactory to my mind that a forced and strained construction should be put upon the words of a testator's will in order to meet the inconveniences of tenure. I think that the words of a will ought to be construed according to their natural and ordinary meaning, unless they are qualified by context, or there be a settled rule of law affixing a different meaning upon them. It was objected to the case of Young v. Robertson, to which I have referred, that the case depended upon the law of Scotland, and that the disposition in that case was of real and personal estate blended together; but the judgment warrants me in saying that the law of Scotland, as to questions of this nature, is the same as the law of England; and no reliance is placed in the judgment upon the blending of the real and personal

estate.

Upon the whole, looking to the intention of this testator, which, in my opinion, is the governing point of the case, and looking also to the state of the authorities, I cannot but think that, however this case might have been decided in times long gone by, it ought now to be decided in favour of the appellants, and that the fund in question ought to be divided between such only of the devisees in remainder as survived the tenant for life. Our order, therefore, will be accordingly. I have said nothing as to the effect of the power of sale given to the widow, because I prefer to decide this case upon broad and general grounds; but having regard to some of the cases, I am not sure that the creation of this power does not furnish the appellants with some further ground of argument.

We were asked, on the part of the corporation of Liverpool, to alter the order as to costs; but the corporation have not appealed: and, in my opinion, this is not a case in which the order, even if wrongwhich I by no means say that it is- -can be altered in their favour without an appeal on their part.

The question of costs is entirely distinct from the question of right, and depends upon wholly different considerations. The costs of all parties of the appeal should, I think, be paid out of the fund.

A solicitor's clerk executed a bond to his employer, the condition whereof, after reciting an agreement that the clerk should give a bond not to carry on the business of a solicitor within fifty miles of a given place, was, that if he carried on business within the specifid distance, then, provided he paid to the solicitor 1,000l. as liquidated damages, the bond should be void. The clerk commenced business as a solicitor within the distance. On a bill being filed by the solieitor,-Held, that he was entitled to an injunction restraining the clerk from practising within the specified distance.

This was a motion for a decree. The bill was filed, by Richard Nicholas Howard, against Thomas Woodward, and the prayer was that the defendant might be restrained by injunction from carrying on, either alone or in co-partnership with any other person or persons whomsoever, the practice or profession of an attorney or solicitor, or either of them, in Weymouth or Melcombe Regis, or at any place within fifty miles thereof respectively, and in particular from continuing to describe himself by any public inscription on his premises at Weymouth as a solicitor.

The plaintiff was a solicitor at Weymouth. In 1860 the defendant entered into his employment as a managing clerk. In 1862 an arrangement was made that the defendant should continue his services at an increased salary; and on the 7th of May 1862 the defendant executed a bond to the plaintiff in the penal sum of 1,000l., the condition of which bond was as follows: "Whereas, on or about the 27th day of November 1860, the said T. Woodward entered into an arrangement to become the managing clerk of the said R. N. Howard, in the practice or profession of an attorney and solicitor, carried on by him, the said R. N. Howard, at Weymouth and Melcombe Regis aforesaid, at a salary of 100l. per annum, to be raised to 120l. per annum in June 1862, to 1307. per annum in June 1863, to 1407. per annum in June 1864, and to 1507. per annum in June 1865, if the

said T. Woodward should so long remain with the said R. N. Howard and it was therefore agreed that the said T. Woodward should enter into a bond not to practise in or take a certificate for practising as an attorney and solicitor for any place within fifty miles of Weymouth and Melcombe Regis aforesaid and it was further agreed that the aforesaid engagement should be terminated by three calendar months' notice in writing on either side at any time and whereas in pursuance of the aforesaid engagement the said T. Woodward did, on or about the 27th day of November 1860, enter into the service of the said R. N. Howard as managing clerk, upon the terms hereinbefore mentioned: and whereas the said T. Woodward hath, at the request of the said R. N. Howard, entered into the bond or obligation hereinbefore contained. Now the condition of the above-written bond or obligation is such that, if the said T. Woodward shall and do, at any time or times hereafter, either alone or in copartnership with any person or persons whomsoever, carry on the said practice or profession of an attorney and solicitor, or either of them, in Weymouth and Melcombe Regis aforesaid, or at any place within fifty miles thereof, or if the said T. Woodward shall and do at any time or times hereafter, without the consent of the said R. N. Howard in writing, take a certificate for practising as an attorney and solicitor, or either of them, for Weymouth or Melcombe Regis aforesaid, or at any place within fifty miles thereof, then and in either of the said cases, if the said T. Woodward, his heirs, executors or administrators, shall and do forthwith well and truly pay, or cause to be paid, unto the said R. N. Howard, his executors, administrators or assigns, the full sum of 1,000l. as and for liquidated damages, without any deduction or abatement thereout, the said bond or obligation shall be void and of no effect; otherwise shall be and remain in full force and virtue."

The bond contained no covenant by the defendant not to practise within the prescribed distance.

In 1863 the defendant left the plaintiff's employment, and on the 17th of February 1864 the defendant took out a certificate as a practising solicitor, and in such certifi