COURT OF APPEAL.

Doe d. Marriott v. Marquis of Hertford, 19 L. J. Q. B. 526.

He also cited Doe d. Egremont v. Langdon, 12 Q. B. 711; Volant v. Soyer, 13 C. B. 231.

Mansel Jones replied.

Lord ESHER, M.R.-I have no doubt that the appellant in taking the objection was acting from conscientious motives, considering it his duty as a solicitor to have the law definitely and authoritatively stated.

The first point is whether, in the circumstances of the case, the appellant, when asked who were the trustees of the defendant's marriage settlement, was entitled to say that, although he knew, he would not tell. On two grounds it was said that he was entitled to refuse to answer; first, that by answering he would be giving the contents of the settlement deed; and, secondly, that inasmuch as he was the solicitor to the trustees, to state their names would be a breach of confidence as such solicitor. It seems to me that neither ground is tenable. To say who are the trustees is not within the meaning of the rule to state any part of the material contents of the deed. No doubt the trustees are named in the deed, but that he knows their names is a fact dehors the deed, and he may have obtained his knowledge by other means. As to the question whether he could say that the names are part of a confidential communication to him as solicitor, he stands in this predicament: that in order to allege the reason he would be obliged to say that the trustees are the clients who have placed confidence in him, and he would then be refusing to say who his clients were. I think that, as pointed out by James, L.J., in Ex parte Campbell, In re Cathcart, the knowledge of who the solicitor's clients are is not a matter of confidence. A solicitor does not advise his client as to whether the client shall be his olient. A person does not ask his solicitor whether the solicitor shall be his solicitor. Therefore the appellant was bound to say who were the trustees of the deed.

Assuming him to have answered that, the next question is as to whether he would be bound to produce the deed. He admits that it is in his possession as solicitor for the trustees. It has been inferentially decided that a solicitor cannot claim privilege as a solicitor not to produce a deed unless his client could refuse to produce it. It seems to me that this deed is not one which the trustees could have refused to produce, and, therefore, neither could the appellant, although he was their solicitor.

With regard to costs, inasmuch as it was clear that the appellant was taking a bona fide and not unreasonable objection, I think that it was hard that he was ordered by Smith, J., to pay the costs. But, upholding the order of the Divisional Court, we cannot alter it as to costs only. As the appellant had the authority of the court, and had no interest in the matter, I think he should have been satisfied and not have appealed. Therefore I cannot disagree with the Divisional Court as to the costs of the appeal. But whether we agree or not, inasmuch as we leave the order to stand in every other respect, we cannot alter it as to costs. There is nothing so peculiar in this case that we should not say that the appeal must be dismissed, with

costs.

COTTON, L.J.-Two questions arise in this case-first, whether the appellant, being the solicitor for the trustees, who were not parties to the litigation, is bound to say who they are; and, secondly, whether he is bound to produce the marriage settlement which is in his possession as solicitor to the trustees. The case is important, having regard to the many actions against married women whose trustees are not parties to the action. As to the first question, the appellant has not shown us any reason for protecting him from giving

HIGH COURT.

the names. It is not everything which a man learns as a solicitor which is protected; mere facts which he learns are not protected. That was much discussed in this court and in the House of Lords in Lyell v. Kennedy, 31 W. R. 691, 32 Ibid. 497, 23 Ch. D. 387, 9 App. Cas. 81. Confidential communications are protected. It is unnecessary to go through all the cases; but, in my opinion, this does not come within the class of confidential communications. It is a mere fact who are the trustees, and the appellant does not state that it was communicated to him confidentially to obtain his advice, and it is extremely improbable that it was so. But he claims the privilege on behalf of his clients, and he must, therefore, state who are the persons on whose behalf he claims the protection. In principle, the case is covered by the decision in Ex parte Campbell, In re Cathcart. As to the production of the deed, I can understand it being a delicate matter to produce the deed in the absence of the trustees; but, in my opinion, he cannot defend himself from producing it. The trustees would have been bound to produce the deed, and, therefore, their solicitor was bound to produce it.

LINDLEY, L.J.—I am of the same opinion. As regards the objection to giving the names, I think that was dis posed of as long ago as the time of Lord Eldon, when in the case of Parkhurst v. Lowten, 2 Swanst. 194, it was held that a witness demurring to interrogatories on the ground that his answer would violate the confidence reposed in him as attorney, must name the party for whom he was attorney. Ex parte Campbell, In re Cathart, is a modern illustration of the same rule. The appellant does not say that he learnt the fact in such a confidential manner as to be protected. As to the production of the deed, he appeared under a subpoena duces tecum, and brought the deed, and submitted to the court the question whether he was bound to produce it. That raises the question as to the right of the clients to withhold the The judgment creditor of a married woman wanted to see the deed, and the trustees could not have refused to show it. If we were to hold the contrary, and say that deeds of this kind were not to be produced in actions against married women, orders might as well not be made against married women.

deed.

In re BARONESS DE ROS. HARDWICKE V. WILMOT. (a.) Marriage settlement-After-acquired property-Covenant to settle-Separate use-Effect of recital. By a marriage settlement, after a recital that it had been arranged and agreed that all personal estate, except jewels and ornaments, exceeding in value £200 which should, during coverture, be given or bequeathed to or otherwise vested in the intended wife or the intended husband in her right, should be settled upon the trusts therein contained, the husband, in further pursuance of

(a.) Reported by H. B. HEMMING, Esq., Barrister-at

Law.

the said recited arrangement and agreement, and for the considerations therein before expressed, covenanted with the trustees of the settlement that in case the marriage should be solemnized, and any personal estate (except jewels and ornaments), exceeding in value £200, should, during coverture, be given or bequeathed to or in any manner vested in the intended wife or the husband in her right, he and the respectively, or their respective executors and administrators, would do and execute all such acts, deeds, and assurances as should be necessary for vesting the same for all the right and interest of the intended wife er of the intended husband as her husband therein in the trustees, and that, in the meantime, the intended husband and the wife respectively, and their respective executors, administrators, and assigns, and all other persons in whom the said premises thereby covenanted to be settled should be vested, would hold the same upon the trusts thereinbefore contained. During coverture certain personal property devolved upon the wife for her separate use.

Held, that the wife having executed the settlement was bound by the covenant, and that her separate property was included therein.

Adjourned summons.

This was an originating summons asking that it might be declared that four-fifths of certain funds constituting one-sixth share of the residuary real and personal estate bequeathed by the will of the late Baroness De Ros to, or in trust for, Olivia, Countess Cowley, since deceased, for her life, with a power of appointment amongst her children, which four-fifths were, by deed poll dated the 4th of March, 1871, appointed by the said Countess Cowley to the plaintiff for her separate use, but subject to her own life estate therein, were not subject to the trusts of the settlement made on the marriage of the plaintiff, and that the defendants, the trustees of the will of the late Baroness De Ros, might be ordered to transfer to the plaintiff on her separate receipt the said four-fifths of such funds.

The settlement was dated the 14th of February, 1863, and made between the Earl of Hardwicke (then Viscount Royston) of the first part, Earl Cowley and the plaintiff (then the Lady Sophie G. R. Wellesley) of the second part, and Lord Ebury, the Hon. and Very Rev. Gerald Wellesley, and the Hon. E. Chandos Leigh of the third part, and recited that under the will of Baroness De Ros, and a deed poll under the hands and seals of Countess Cowley and Earl Cowley dated the 13th of February, 1863, the plaintiff was entitled to one-fifth share of and in certain funds expectant on the death of her mother, the Countess Cowley (being the remaining fifth of the abovementioned funds), and that it had been agreed that such share should be settled upon the trusts concerning the same, and that it had been further arranged and agreed that all such moneys or other personal estate, except jewels or ornaments of the person, as should at any time or times during the said intended coverture be given or bequeathed to or otherwise vested in the said Lady Sophie G. R. Wellesley, or the said Charles Philip, Viscount Royston, in her right in full and absolute property, and which should exceed in amount or value the sum of £200 at any one time, should also be assigned or settled upon the trusts thereinafter declared, and that the said Charles Philip, Viscount Royston, should enter into the covenant in that behalf thereinafter contained.

The said reversionary share was then assigned by the wife to the trustees of the settlement upon the trusts therein mentioned.

The settlement contained the following covenant:"And in further pursuance of the said recited arrangement and agreement, and for the considerations hereinbefore expressed, he, the said Charles Philip, Viscount Royston, doth hereby, for himself, his heirs, executors,

HIGH COURT.

and administrators, covenant and agree with and to the said" trustees "that, in case the said intended marriage shall be solemnized and any sum or sums of money, stock or funds, or other personal estate (except jewels or ornaments of the person) exceeding in amount or value the sum of £200 at any one time, shall at any time or times during the said intended coverture be given or bequeathed to, or in any manner vest in, the said Lady Sophie G. R. Wellesley, or in him, the said Viscount Royston, in her right, then, and in that case, and so often as the same shall happen, they, the said Viscornt Royston and Lady Sophie G. R. Wellesley respectively, or their respective executors or administrators, shall and will, at the costs and charges of the said trust estate, do and execute all such acts, deeds, and assurances as shall be necessary for properly assuring or transferring such property unto or vesting the same for all the right and interest of the said Lady Sophie G. R. Wellesley, or of him, the said Viscount Royston, as her husband, therein in "the said trustees, to be held upon the trusts of the settlement; "and that, in the meantime, and until such settlement as aforesaid shall be made, the said Viscount Royston and Lady Sophie G. R. Wellesley respectively, and their respective executors, administrators, and assigns, and all other persons in whom the said premises hereby covenanted to be settled as aforesaid shall be vested, shall stand and be possessed of the same " upon the trusts therein before contained.

The plaintiff duly executed the settlement, and the marriage was solemnized on the 16th of February, 1863. The husband was still living.

Earl Cowley died on the 15th of July, 1884, and Countess Cowley on the 21st of April, 1885.

The summons was opposed by the trustees of the marriage settlement, and by the trustees of Lady De Ros's will.

Hastings, Q.C., and Nalder, for the plaintiff.-The covenant is the covenant of the husband only, and does not bind the wife: Dawes v. Tredwell, 29 W. R. 793, 18 Ch. D. 354.

Farwell, for the trustees of the marriage settlement. -The covenant is binding on the wife: Lee v. Lee, 25 W. R. 225, 4 Ch. D. 175. If there is any ambiguity, the recital may be read to show the intention of the parties, and that clearly states that the property of the

wife is to be bound.

M. G. Davidson, for the trustees of Lady De Ros's will.

Hastings, Q.C., in reply. A covenant by the husband alone, not preceded by any agreement by the parties, cannot bind the wife: Young v. Smith, L. R. 1 Eq. 180, 14 W. R. Ch. Dig 44; Ramsden v. Smith, 2 W. R. 435, 2 Drew 298. Lee v. Lee is distinguishable from those cases, inasmuch as it referred only to specific property dealt with in the settlement, and not to after-acquired property. If it was intended to establish a general principle it is inconsistent with Dawes v. Tredwell, which, as a decision of the Court of Appeal, ought to be preferred. [KAY, J., referred to In re D'Estampes, D'Estampes v. Hankey, 32 W. R. 978.] Even if the covenant is the wife's covenant, it does not bind her separate property: Kane v. Kane, 29 W. R. 212, 16 Ch. D. 207. [Farwell referred to In re Allnutt, Pott v. Brassey, 31 W. R. 469, 22 Ch. D. 275, upon this point.]

KAY, J.—The question in this case is whether personal property which came to the wife during coverture for her separate use is within the terms of the covenant contained in her marriage settlement, which is usually called the covenant to settle after-acquired property. It is a covenant by the husband only, and is not preceded by any agreement between the parties.

His

HIGH COURT.

lordship then read the covenant, pointing out that a distinction was made between vesting in the husband and vesting in the wife, and expressed his opinion that the words of the covenant or in any manner vest" were wide enough to include property vesting in the wife for her separate use.] The ambiguity, such as it is, arises from the circumstance that the wife does not join in the covenant; but the husband covenants that both he and she will do what is there agreed to be done. If there be any ambiguity I am entitled to look back at the recital. [His lordship then read the recital.] It seems to me that that recital makes it impossible to doubt that the covenant that the wife shall settle refers to property which might come to her for her separate use, so that if she does not settle it there would be a breach of that covenant.

I cannot find in any one of the cases in which the decision was the same as in Dawes v. Tredwell that there was a covenant for acts to be done by the wife. No such case was cited to me, and I am not aware that there has been such a case. In Young v. Smith, after the recital of an agreement that after-acquired property of the wife should be settled, it was witnessed that, in pursuance and further performance of the said agreement, and in consideration of the said intended marriage, the husband covenanted with the trustees that, if at any time or times during the said intended coverture, any real or personal estate of the value of £500 at any one time should descend, or devolve to, or vest in the intended wife, or the husband in her right, he would do and execute, or procure to be done or executed, all such acts, &c., which should be necessary for conveying and assigning the said estate to the trustees of the settlement. It was not in terms that the wife should make the assignment. The distinction between Young v. Smith and the present case is this. There, the covenant being only by the husband for acts to be done by him, or such acts as he could cause to be done, which means only the acts of persons who were bound to obey him, such as trustees the covenant being quite clear, and only by the husband-the Master of the Rolls (Lord Romilly) held that it could not refer to property of the wife for her separate use, and refused to look at the recital to explain the covenant. I go now to Dawes v. Tredwell, where the decision was similar to that in Young v. Smith. There, by a marriage settlement, after a recital that it was agreed that all real and personal property which, during coverture, should devolve upon the wife, or the husband in her right, should be settled, it was agreed and declared between and by the parties thereto, and the husband covenanted with the trustees that, if at any time during the said intended coverture any real or personal estate (other than and except clothes, jewels, and personal chattels) should descend and devolve upon or vest in the intended wife, or the husband in her right, to the amount in value of £200 at any one time, he would immediately thereupon, at the cost and charges of the trust estate, make, do, and execute, or cause and procure to be made, done, and executed, and join and concur in making, doing, and executing, all such conveyances and assurances, assignments, acts, deeds, matters, and things as would effectually vest all such real and personal estate in the trustees of the settlement. There, again, there is no covenant that the wife would do anything; and the distinction which the late Master of the Rolls (Sir George Jessel) draws in that case is this. He says, "The rule is where you have such words as 'it is hereby agreed and declared between and by the parties to these presents,' that someone will do an act or make a payment, and that someone is a party to the deed; it is a covenant by him with the others, not a covenant by all of them. Anything more absurd than to hold it a covenant by all of them could not be imagined. Suppose you had these words, 'Provided always, it is hereby agreed and declared between and by

HIGH COURT.

the parties to these presents that the said A. B. shall pay £5,000 to the said C. D. on the 6th of January next,' it would be absurd to say that this amounts to a covenant by C. D., the recipient of the money, that A. B. shall pay him, as well as a covenant by A. B. that he will pay him. If therefore we find that no act is to be done except by one of the parties, these words only amount to a covenant by that one party with the others." That is the distinction.

Here I find an act to be done, not by the husband only, but by the wife. That act is to settle any property which is to come to her, even if settled to her separate use. I asked during the argument whether, supposing she had joined in this covenant, the words were wide enough to include property belonging to her for her separate use, and it was virtually admitted that they were wide enough. The only reason for supposing that the covenant does not include such property is that she does not join in the covenant; but looking at the whole deed together, I have no doubt whatever that it was intended that all property coming to her, even though coming to her for her separate use, was to be settled. That being the intention of all parties, and the meaning of this covenant being that the lady, as well as her intended husband, should execute all necessary acts and deeds for transferring such property to the trustees of the settlement, what possible distinction is there between this case and Lee v. Lee?

Lee v. Lee was a case where, by an ante-nuptial agreement, signed by the intended husband and the wife and the parents of the wife, the parents agreed to appoint a share of certain real estate (which was subject to their life interest and to the appointment of them and the Eurvivor of them) to the wife, and the husband agreed that he would settle his wife's reversionary share of the said real estate upon the usual trusts for the husband and wife and their children. The wife's father having survived her mother released the power and granted the estate after his death, giving his said daughter a share, and the Master of the Rolls (Sir G. Jessel) held that the agreement bound the wife as having assented to her father's stipulation. Here the settlement was signed by the wife, she was a party to the deed, on the face of which was an agreement that she should do all necessary acts for assigning her after-acquired property to the trustees of the settlement. Why should she not be bound by this agreement? It is well established that if you can find that which amounts to an agreement within the four corners of the deed, that constitutes a covenant just as much as if it had been formally expressed. No doubt in this case the agreement might have been better expressed, but it seems to me that if it rested only on that the wife ought to be bound. But when I look at the last sentence of the covenant, my opinion is much stronger. [His lordship then read from the words “and that in the meantime" to the end.] That comes to this, that both the husband and the wife, or either of them, according to the nature of the property, are to be trustees or a trustee of the property until a settlement shall be made. In form, no doubt, the covenant is by the husband alone, but that covenant is in a deed executed by the wife, with knowledge of its contents, the purpose of which is to affect property which might come to her for her separate use.

I therefore hold that this property falls within the deed, and I make a declaration accordingly.

Ellis & Ellis; Davidson, Burch, Whitehead, & David-
Solicitors, Collyer-Bristow, Withers, Russell, & Hill;

sons.

HIGH COURT.

Chan. Div. 7 Kay, J.

Aug. 9, 10.

In re DE BURGH LAWSON.
DE BURGH LAWSON v. DE BURGH LAWSON. (a.)
Election-Heir-Married woman-Void instrument.

A married woman who was entitled to some shares in a colliery for life for her separate use, with a power of appointment by will, and also to real estate in fee simple not for her separate use, by her will, made in February, 1880, appointed the shares in favour of her hair and other children, and purported to devise the real estate away from the heir. She died in June, 1880, leaving her husband surviving.

Held, that, the will being void as to the real estate, the heir was not put to his election as between the real estate and his interest in the colliery.

Further consideration.

Lady Mary De Burgh Lawson, the wife of Sir Henry De Burgh Lawson, Bart., was, under the will of her mother, entitled in fee to a freehold house known as Surrey House, Darlington, but not for her separate use, and was also entitled to a life interest in a moiety of a share in the Bedlington Coal Co. for her separate use, without power of anticipation, with a general power of appointment by will over such moiety.

By her will, dated the 26th of February, 1880, Lady Mary appointed her interest in the coal company in favour of all her children living at her death, and devised Surrey House upon trust for her husband for life, and after his decease upon trusts, in the first place, in favour of her unmarried daughters, and, upon the death or marriage of the survivor, upon trust as therein mentioned.

The testatrix died on the 30th of June, 1880.

Ав

The testatrix had not, either at the date of her will or at her death any separate property of her own. she had no power to dispose by will of her freehold bouse, that descended to her eldest son, Henry Alfred Stoddart De Burgh Lawson, as her heir, subject to her husband's estate by the curtesy. An action was commenced in 1882 by a younger son of the testatrix against the trustees of the will, and the usual inquiries were directed.

The action now came on for further consideration, and the only question calling for a report was whether the heir was put to his election as between his share in the Bedlington Coal Co. and Surrey House.

Sir Arthur Watson, Q.C., for the plaintiff.

W. C. Druce, for the heir-at-law.-In order to raise a case of election there must be a personal competency on the part of the author of the attempted disposition : Jarman on Wills, 4th ed., p. 446; White and Tudor's notes on Streatfield v. Streatfield, 5th ed., p. 392. A married woman, when this will was made, was not competent to make a will without the consent of the husband, except as to separate property. The instrument is void as a will, and no case of election arises upon a void instrument. In Hearle v. Greenbank, 1 Ves. sen. 298, 3 Atk. 695, an infant married woman attempted to dispose of real property by will, and it was held that the heir was not put to his election. In Rich v. Cockell, 9 Tea. 370, which was like this case, the point is stated as doubtful in the head-note, but no election was ordered. In Blacklock v. Grindle, 17 W. R. 114, L. R. 7 Eq. 215, this point was expressly left opeu. In Coutts v. Acworth, 18 W. R. 482, L. R. 9 Eq. 519, the husband was put to his election; but that case is distinguishable, because that was the case of a married woman having a power of appointment, and making an excessive appointment. In (a.) Reported by H. B. HEMMING, Esq., Barrister-atLaw.

HIGH COURT.

In re Warren's Trusts, 32 W. R. 641, 26 Ch. D. 208, a testamentary appointment was void for remoteness, and the persons entitled in default were not put to their election.

Sir Arthur Watson, Q.C., in reply.-Lord Hatherley's definition of election in Cooper v. Cooper, 22 W. R. 713, 716, L. R. 7 H. L. 53, 70, is wide enough to include this case. [KAY, J.-You cannot apply the doctrine of election to make an instrument valid which as an instrument is absolutely invalid: Wollaston v. King, 17 W. R. 641, L. R. 8 Eq. 165, 175, per James, V.C. This is not a will; it is only a testamentary appointment.] In Hearle v. Greenbank a distinction is drawn between an infant and a married woman, inasmuch as the disability of the latter arises, not from want of judgment, but from being under the power of the husband. It would appear from the language of Lord Hardwicke that there are only two cases where election does not apply-(1) where the instrument is not executed as the law requires; (2) where the settlor is under mental incapacity. Rich v. Cockell went upon this-that the will was not properly proved, and there was no instrument which the court could look at. The several cases from Brodie v. Barry, 2 V. & B. 127, to Orrell v. Orrell, 19 W. R. 370, L. R. 6 Ch. 302, in which a Scotch heir has been put to his election by an English will, are analogous.

Farwell, for the trustees of the will.

KAY, J.-The question raised on this instrument is a very curious one, as to which the authorities are not decisive, but there is enough to enable me to say that I must be bound by the state of the authorities as I find them. The ordinary question of election is raised when one person seeks to take under and also against the same instrument. That is the simplest case. It was decided long ago, in Whistler v. Webster, 2 Ves. jun. 367, that where a testator, having under a settlement a special testamentary power among his children, appointed by his will to his grandchildren, and by the same will gave legacies to his children, who were the persons to take in default of appointment, the children must elect whether to take under the settlement or under the will.

But this is a case where a married woman had a general power of appointment over certain property, and was also entitled in fee to real property which she had no power to devise during her husband's lifetime without his consent, and she exercised her power of appointment to some extent in favour of her heir, and attempted to devise the real estate over which she had no power of appointment, and which she had no power to devise, to somebody else. The question is whether the heir is put to his election.

In Hearle v. Greenbank an infant made a will, whereby she intended to dispose of personal property and also real estate. It was urged that the heir was put to his election. Lord Hardwicke said he was not, and the reasoning, as I read it from the report in Atkyns, is this. His words are:-"I am of opinion the infant in the present case is not to be compelled to make her election. For the instrument here being void as to real estate, there is no instance where an infant has, in such a case, been compelled to make an election, for here is properly no will at all as to lands. It is like the case where a man executes a will in the presence of two witnesses only, and devises his real estate from his heir-at-law, and the personal estate to the heir-at-law; this is a good will as to personal estate, yet, for want of being exccuted according to the Statutes of Frauds and Perjuries, is bad as to the real estate; and I should, in that case, be of opinion that the devisee of the real estate could not compel the heir-at-law to make good the

devise of the real estate before he could entitle him to his personal legacy, because here is no will of real estate for want of proper forms and ceremonies required by

དཔམ་

real estate from her child, and, therefore, does not fall within the benevolent equity the court exercised in that case. But what I principally rely on is that here is no instrument which would pass the real estate."

As has been ingeniously suggested by Sir Arthur Watson, it was not that the infant wanted discretion or judgment-for she had judgment to dispose of personal property--but that this was an invalid instrument. There was a personal incapacity, on the part of an infant, to will real estate, and, as to that, this was an absolutely invalid instrument. Rich v. Cockell followed that, and I agree that it is not a distinct decision on the point, but Mr. Jarman, in his well-known book, says this (I am reading from the original edition, which was published in 1844, at p. 388):-"In order to raise a case of election, there must be a personal competency on the part of the author of the attempted disposition, as the doctrine is founded on intention, which supposes such competency. Thus, under the old law, where personalty was, and real estate was not, disposable by the will of a person under age, the heir of the infant testator was allowed to take his real estate, in opposition to the will, without relinquishing a legacy bequeathed to him by the same will. And, though the disability of coverture is, in some respects, distinguishable from, and less absolute than, that of infancy (a feme coverte having, it is said, a disposing mind, but not a disposing power, while an infant has neither the one nor the other), yet the principle seems, according to the authorities, to apply to the attempted dispositions of married women. If, therefore, a feme coverte, having a testamentary power, makes an appointment by will in favour of her husband, and, by the same will, professes to bequeath to another personal estate to which her power does not extend, the husband inay take the benefit appointed to him, and also defeat the intended bequest of the other property by the assertion of his marital right." And he refers to those two cases of Hearle v. Greenbank and Rich v. Cockell.

Now, whether that was a distinct decision or a satisfactory decision of this point or not, I find this stated in a book of so great an authority as Mr. Jarman's to be the result of that case and of Hearle v. Greenbank; and seeing that since the date of that book there never has been any authority dissenting from that view, I am not going to decide contrary to the authorities as there stated. As the late Master of the Rolls (Sir George Jessel) has often observed, it is most material in coming to a decision to see what has been the understanding in text-books for many years. To decide now that the question of election arises would be to unsettle the law as stated by Mr. Jarman. Accordingly I must hold that, as there was a personal incapacity in this married woman to dispose of her real estate, I cannot look at the instrument for the purpose of raising a case of election so far as it relates to real estate. I therefore hold that no case of election arises against the heir.

Solicitors, G. & W. Webb; Crossman, Crossman, & Prichard; John Scaife, for H.J. Duncan, South Shields.

Lewis v. Lewis. (a

Practice-Order on summons in administ

Time for moving to vary order-Ord

On the 17th of July, 1885, an order chambers upon a summons taken out in tion action, directing taxation of the costs payments to certain creditors on the esta liberty to any of the parties to apply in getting in the outstanding personal estat the chief clerk's certificate. On the 2nd 1885, one of the parties served the othe notice of motion to vary the order.

Held, that the order, not being a final o of motion ought to have been served wit days from the time the order was pronou

the motion was made too late.

This was a motion to vary an order w made by the judge in chambers, and the was whether the order sought to be varie cutory or final.

The order was pronounced on the 17th and the applicants served the respondents of motion to vary on the 2nd of Septembe respondents raised the objection that motion should have been served within tw from the time when the order was prono order was an interlocutory, and not a final

The facts of the case were as follows:On the 6th of November, 1874, an or upon a summons in chambers for the adr the estate of William Lewis, an intestate was commenced by Martha Lewis, an in Jones, her next friend, against the admini Lewis, the widow of W. Lewis, but afte Williams, the wife of Herbert Williams.

Herbert Williams was also a defenda during the progress of the action.

By an order dated the 3rd of April, 1879 of the action was given to David Jones a his wife, she being the administratrix of D who had been allowed as a creditor of William Lewis.

The chief clerk's certificate was made o

January, 1881, and found a balance of £30 from the defendant Anne Williams to William Lewis. She subsequently paid £151 1s. 8d., and at the date of the preser the balance of £157 38. 7d. was still unpaid

On the 17th of July, 1885, upon the a the defendants, it was ordered that it be re taxing master to tax the costs of the plai fendants, and the costs from the 17th of I David Jones and Charlotte, his wife, of th costs of the defendants to be taxed as bety and client, and to include any charges & properly incurred by them in relation to the tion of the estate of Wm. Lewis beyond the action, and not already taxed or allowed, a funds in court should be dealt with as dir schedule thereto. But if such fund were in pay all costs directed to be taxed, the re funds, after payment of the defendants' cost apportioned between the plaintiff and Davi Charlotte, his wife, in respect of their costs, portioned amounts were to be certified by master, and any of the parties were to