fund, and a reference was directed to the Master to approve of a plan for carrying out the testator's wishes; and the only question now raised was, whether the trustees were only to build a mansion house, with stables and necessary outbuildings, or whether they were justified, under the will, in adding a garden and pleasure grounds to the same.

The Solicitor General, Mr. Bethell, Mr. J. Parker, Mr. Rolt, Mr. Malins, Mr. Roundell Palmer, Mr. Follett, Mr. Messiter, Mr. Toller, Mr. Bates, and Mr. Fleming, appeared for the parties interested.

The VICE CHANCELLOR. The main question is, what is the meaning of this clause in the will of Sir John Lombe? The direction is [His Honour then read the clause].-It was plain what the testator had in view was the erection of a mansion house and suitable offices fit for the owner of such an estate as this; and it is my opinion, knowing something as I do of what the residence of a country gentleman ought to be, that it would be the grossest of all possible absurdities if it were to be held that a bare mansion house and offices, erected out of a muddy field, should be considered a fit residence for the owner of an estate worth 15,000l. per annum. This would be perfect nonsense; and my opinion is, that the house should be built so as to be a fit residence for the owner of the estate. Whether it is to be built in what is called a park, or whether more or less of grass land is to surround the house, I do not care; that is for the Master's consideration: but my opinion decidedly is, that there must of necessity be accommodation in the way of pleasure grounds, and a pretty approach in which every English eye takes a delight; and I think an attempt to make a residence in the country fit for such an estate without a garden and appendages according to the income of an estate of such kind would be absurd. It is quite within the sphere of the true construction of the trust that the Master should consider as to the ornamental parts necessary to be added to the mansion house.

NEW SERIES, XVIII.-CHANC.

Will Construction

Ready MoneyMoney in the Funds-Unreceived Dividends on Stock.

A testator bequeathed to A. all and singular his ready money, money in the funds, furniture, &c., and all other his property in and about his house, except securities for money. He then gave the rest and residue of his estate on the trusts therein mentioned. The testator at his death was entitled to dividends on stock in the 31. per cent. reduced annuities, and the 31. per cent. annuities belonging to him, which had accrued due during his life, but had not been received by him :-Held, that such dividends did not pass under the words "ready money" or money in the funds."

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William May, by his will, dated the 14th of November 1812, directed his debts and funeral and testamentary expenses to be paid, and, from and after the payment thereof, gave legacies of 2001. each to his executors. The will then proceeded as follows: "I give and bequeath all and singular my ready money, monies in the funds, live and dead stock, and growing crops, household furniture, fixtures, wines and other liquors, plate, linen, china, horses, harness, carriages of all sorts, implements and utensils in husbandry, and all other my property and effects, except securities for money, which shall be in, upon or about the messuage or tenement, farm, and lands in my occupation at the time of my decease, unto my dear and loving wife, Elizabeth May, to and for her own use and benefit." The will then contained the specific devise therein mentioned. The will proceeded as follows: "And all the rest, residue and remainder of my personal estate and effects whatsoever and wheresoever, of which I may be possessed, interested in, or entitled unto at the time of my decease, I do hereby give and bequeath unto my said trustees, Thomas May and Thomas Ellis, their executors, administrators, and assigns for ever, upon trust, nevertheless," &c. The will then contained the trusts therein particularly mentioned. The testator made a codicil to his will, dated

3 F

the 2nd of March 1842, which was in the following words:- "Whereas I have in and by my said will given and bequeathed unto my dear wife Elizabeth all and singular my ready money and other my personal estate, including monies in the funds, with an exception as to securities for money as therein mentioned. Now, it is my will and meaning, and I do hereby revoke that part of the said bequest which includes monies in the funds, and direct that, from and after the decease of my said wife, the same shall sink into, and form part of my residuary personal estate for the benefit of my residuary legatees. And I hereby give and bequeath all monies in the funds belonging to me at the time of my decease to my trustees and executors, T. May and T. Ellis, and my friend James Winch Grave, their executors, administrators, and assigns accordingly." The testator died in March 1842.

By the decree made in this suit, which was for the administration of the testator's estate, it was referred to the Master to take an account of the personal estate of the testator not specifically bequeathed, and also an account of the personal estate specifically bequeathed.

The Master, by his report, found that the testator had at his death the sum of 23,8001. 31. per cent. reduced annuities, and the sum of 4,000l. 347. per cent.; and that he was also at the time of his death entitled to the sum of 1,2107. in respect of the dividends on these sums, which had accrued due during the life of the testator; but had not been received by him.

To this report were annexed schedules of the testator's property specifically bequeathed and not specifically bequeathed. The Master included the sum due in respect of the unreceived dividends in the schedule of the property specifically bequeathed. The report of the Master, therefore, had the effect of giving this sum to the testator's widow.

Exceptions were taken to the Master's report in this respect, which now came on to be heard.

Mr. Bacon and Mr. C. Ellis, for the exceptions, contended that the dividends in question did not pass under the words "ready money" or "money in the funds."

Vaisey v. Reynolds, 5 Russ. 12; s. c. 6 Law J. Rep. Chanc. 172. Parker v. Marchant, 1 You. & C. C.C. 290; s. c. 11 Law J. Rep. (N.S.) Chanc. 223; affirmed 1 Phill. 356; s. c. 12 Law J. Rep. (N.s.) Chanc. 385.

Fryer v. Ranken, 11 Sim. 55; s. c. 9

Law J. Rep. (N.S.) Chanc. 337; and Taylor v. Taylor, 1 Jurist, 401.

KNIGHT BRUCE, V.C.-With deference to the Master, it appears to me to be quite consistent with Vaisey v. Reynolds, with Parker v. Marchant, and with Fryer v. Ranken, that the conclusion to be arrived at might be the conclusion of the exceptants. The point is, whether the words "ready money" or "money in the funds" do or do not include dividends of stock belonging to the testator, for which dividend warrants had been made out, but which had not been received or demanded by him. The property at the time of the testator's death was in this state:-that the testator himself, or some person acting for him under a power of attorney, might have obtained dividend warrants, and might have converted them into cash. My opinion is, that dividends in that state are not included in the expressions "ready money" or "money in the funds," unless there be something in the context to explain these words, or give them any other meaning but their regular or ordinary meaning. There is nothing here in the context which has that effect. I think that the widow is not entitled to these dividends. I am sorry for it, for I think the testator intended the widow to have them. The language, however, of the will cannot, I think, be got over.

Note. As to the words "ready money," see Smith v. Butler, 3 Jones & Lat. 565. As to "unreceived dividends," see the next case.

Will-Construction Unreceived Dividends on Stock.

A testator bequeathed all the dividends or interest of all his money in the funds, and of all other his personal property to A. for life. The testator was at his death entitled to some dividends on stock, which had accrued due during his life, but had not been received by him :-Held, that such dividends did not pass under the words "dividends of his money in the funds," but formed part of his general personal estate.

W. W. Shore made his will, dated the 30th of March 1844, in the following words:" I also give and bequeath to my said wife all my live and dead farming stock and crops, implements of husbandry, and household furniture and effects for her own absolute use and benefit; and also all the dividends or interest of all my money in the funds, and of all other my personal property during her life; subject, nevertheless, in the meanwhile to her paying thereout to the widow of my late son William 100l. per annum, so long as she continues unmarried, for her maintenance, and to enable her to bring up his children: and, after the decease of my wife, I give and bequeath the said dividends and interest, and all principal monies from which the same may arise unto and equally between the children of my said son on their respectively attaining the age of twenty-one years."

The testator was entitled at the time of his death to the sum of 2001. in respect of dividends on stock which had become due before his death, but which had not been received by him.

The only question in this cause was, whether the testator's widow was entitled to this sum under the bequest of "all the dividends or interest of all my money in the funds."

Mr. Wigram and Mr. W. J. Bovill, for the widow, contended that she was so entitled.

Mr. Russell and Mr. Giffard, contrà, were not called upon.

Mortgage-Foreclosure-Costs-Infants.

A. mortgaged an estate to B. for a term, and died, having devised the estate to his wife and children, some of whom were infants. B. filed a foreclosure bill against A.'s wife and children. On the application of the plaintiff, the solicitor of the suitors' fund was appointed the guardian of the infant defendants. A decree was made that, in default of payment, the defendants should be foreclosed, and that in the event of foreclosure the property should be sold. Upon a question as to the costs of the suit incurred by the solicitor of the suitors' fund, -Held, that the plaintiff was liable to pay such costs.

A freehold estate was mortgaged to the plaintiff for the term of 1,000 years. The mortgagor died, having by his will devised the property to his wife and children. Some of these children were infants.

The bill was filed by the plaintiff against the widow and children of the testator for the purpose of realizing his security.

By the 32nd Order of the 8th of May 1845 (1) it is ordered that, " if, upon default made by a defendant in not appearing to, or not answering a bill, it appears to the Court that such defendant is an infant, the Court may, upon the application of the plaintiff, order that one of the solicitors of the Court be assigned guardian of such defendant, by whom he may appear to and answer, or may answer, the bill and defend the suit."

Under this Order, upon the application of the plaintiff, Mr. Johnson the solicitor of the suitors' fund was duly appointed guardian for the infant defendants (2).

By the decree made at the hearing, and which was agreed to by all parties, it was (1) Ord. Can.296; 14 Law J. Rep. (N.S.) Chanc. (2) See Moore v. Platel, 7 Beav. 583.

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ordered that the Master should make the usual inquiries as to principal, interest and costs; and that, in default of payment, the defendants should be foreclosed; and that, in the event of the defendants being foreclosed, the property should be sold, it being declared that a sale would be for the benefit of the infant defendants.

In drawing up the order, a question arose as to the costs of Mr. Johnson, and the cause was set down to be spoken to as to this point.

Mr. Hanson, for the plaintiff.—The infant defendants are not entitled to anything until the plaintiff has been paid in full. The guardian has no better right than they have. If, however, the guardian is entitled to costs, they ought to be paid out of the suitors' fund. He referred to the 28th Order of the 26th of October 1842 (3).

Mr. Taylor, for Mr. Johnson.-Under the old practice the plaintiff must have brought the infant defendants into court at his own expense. The New Orders have made no alteration as to the question of who should bear the expense of making the infants defendants to the suit.

KNIGHT BRUCE, V.C. said, that it was a hardship either way, and that he had to select the course which would operate as the least hardship. The plaintiff had selected a public officer for the performance of a duty. He thought that the plaintiff ought to pay the costs; and he should so order, unless some authority to the contrary should be produced.

Note. See Foster v. Eddy, ante, p. 151.

(3) "That where it has been usual to assign a Six Clerk guardian ad litem of an infant, the Court may appoint one of the solicitors of the Court to be such guardian, and may direct that the costs to be incurred in the performance of the duties of such office shall be borne and paid, either by the parties, or some one or more of the parties to the suit, in which such appointment shall be made, or out of any fund in court in which such infant may be interested, and may give directions for the repayment or allowance of such costs as the justice and circumstances of the case may require." Ord. Can. 217; 12 Law J. Rep. (N.s.) Chanc. 4.

Costs-Taxation without reviving SuitStatute 1 & 2 Vict. c. 110. s. 18.

One of the defendants in a suit to whom the costs had been ordered to be paid by the plaintiffs, died before taxation, and the suit had not been revived :-Held, on motion by the representative of the deceased defendant, that notwithstanding the decree having been passed and entered, and the costs having become, under 1 & 2 Vict. c. 110. s. 18, a charge upon the real estate of the plaintiffs, the Court would not direct the Master to proceed with the taxation until the suit had been revived.

By a decree of the Court made on the 12th of January 1848, it was ordered inter alia that the plaintiffs' bill in this suit should stand dismissed as against the defendants, with costs to be taxed for the defendants James Webb Southgate and William Turquand respectively by the Taxing Master; and that such costs when taxed should be paid to them respectively by the plaintiffs James Harman and Zaccheus Woodman, but without prejudice to the right of the plaintiffs to file a new bill. The defendant, J. W. Southgate died on the 30th of the same month, before the decree had been drawn up; and in consequence of his death, the plaintiffs objected to the same being drawn up. The objection was overruled by the Registrar (Mr. Wood), and the decree was duly passed and entered. The executrix of the deceased defendant carried in her account for costs; but the Taxing Master (Mr. Martineau) having been informed of the defendant's death, and that the suit had not been revived, declined to proceed with the taxation without further directions from the Court. A memorial of the decree had been registered by the executrix in the Middlesex Registry Office, but a memorandum of it was refused to be received at the Common Pleas Office, because the amount of the costs had not been ascertained. The present motion was for an order to direct the Taxing Master to proceed with the taxation.

The Solicitor General and Mr. Hallett, for the motion.-By 1 & 2 Vict. c. 110. s. 13. (1) a judgment entered up against a person in any of the superior courts at Westminster operated as a charge upon all lands, &c. and hereditaments of or to which such person was seised, possessed, or entitled; provided that no judgment creditor should be entitled to proceed in equity to obtain the benefit of such charge, until after the expiration of one year from the time of entering up such judgment. By the 18th section, decrees and orders of courts of equity, whereby any sum of money, or costs, charges or expenses, were made payable, were to have the effect of judgments in the superior courts of common law; and the persons to whom the same were payable were to be deemed judgment creditors within the meaning of the act; and all remedies thereby given to judgment creditors were also given to persons to whom any monies or costs, &c. were by such orders directed to be paid. By the 19th section, such a charge would not operate as against purchasers, mortgagees or creditors, unless and until a memorandum or minute of the particulars had been left for registry with the senior Master of the Common Pleas. It appeared that such memorandum was not receivable there until the costs were ascertained; but in equity the order gave a lien for the unascertained amount, because it could be ascertained by the Taxing Master. The latter refused to proceed in the present case until the suit should have been revived; but it was submitted that such revivor was unnecessary, because the statute having made the order of the Court a charge upon the lands of the plaintiffs, the defendant could proceed to enforce payment of the amount when ascertained, without any further order. This view was supported by the observations of Lord Hardwicke, in Kemp v. Mackrell (2), that an order to revive was only necessary to prosecute the order in the abated suit. The circumstances of that case were exactly the same with those of the present, and the costs were there given. The plaintiff's would contend that there could be no order to revive the

(1) Abolition of Arrest on Mesne Process. (2) 3 Atk. 812; s. c. 2 Ves. sen. 579.

suit for costs alone, and that the defendant's representative had no means of recovering the costs in this suit. Undoubtedly there were many cases in which it had been held that costs were lost by the death of parties before taxation, but the rule was considered to be so harsh that the Court would admit every exception to it. Besides, there was at present no settled rule, and the cases were conflicting. In Andrews v. Lockwood (3), the Vice Chancellor of England had given judgment upon this point, but on appeal to the Lord Chancellor (4), the case was disposed of without reference to it. In Morgan v. Scudamore (5), Lord Loughborough was reported to have doubted whether the rule that there could be no revivor for costs alone, extended to the case of the party entitled to them dying, as well as to that of the party to pay; and to have remarked that the reason why the rule failed (prevailed?) in the latter case, was because costs were a personal demand affecting the person. When that case came on again (6), the costs were obtained. In Lowten v. the Mayor and Commonalty of Colchester (7), Sir William Grant reviewed all the cases. In Bowyer v. Beamish (8), Sir Edward Sugden refused to allow the costs.

[Reference was also made to Jupp v. Geering (9), Barry v. Stawell (10) and Averall v. Wade (11).]

By the first of the General Orders of the 10th of May 1839 (12), directing the mode and forms of writs for enforcing orders of this Court for payment of money or costs under the above statute, a writ of fi. fa. might be issued after the lapse of one month from the time such order was duly passed and entered. The decree or order