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ted by Baron Alderson, who was also a The Vice CHANCELLOR.— In the first shareholder in the Grand Junction Canal place my opinion is, that under the act of Company; and it was upon this account parliament which created the authority of that the action was not heard during the the Vice Chancellor of England, I am time that Baron Alderson was on the bench. bound to take all the decrees and orders If the Lord Chancellor had been called as made by the Lord Chancellor in the way in a witness in an action respecting this pro- which I find them. The expression in the perty, his evidence could not have been act (5) is, that the “ Vice Chancellor shall received on the ground of his interest. have no power or authority to discharge, reHow then, could he, who was not allowed verse, or alter any decree, order, act, matter, to be heard as a witness, determine the or thing made or done by any Lord Chanquestion as a Judge? His Lordship, there- cellor." I am not sorry that there has been fore, had no power to make an order in this sort of discussion, because it has the the case, and, consequently, the order effect of disseminating those principles of made by him was altogether void. On our law which are so material to be known this point the following cases were cited throughout the country; but at the same Drewry v. Thacker (1), Great Charte v. time I cannot accede to the proposition Kennington (2), The Queen v. the Paving that I, acting under the authority of this Commissioners of Cheltenham(3), The Queen act of parliament, am at liberty to say that, v. the Justices of Hertfordshire (4). It because from some general principles of was also contended that no breach of the law, an act done by the Lord Chancellor injunction, restraining the defendant from may be considered void on account of his impeding the navigation of the canal had having an interest in the matter adjudicated been committed ; all that he had done was upon, that therefore I am at liberty to to direct his clerk to keep watch at the treat it as void. It appears to me that I canal, and take the numbers of the different should be acting in opposition to the plain barges that passed, for the purpose of meaning of the act if I did not take every bringing actions of trespass, and in doing order made by the Lord Chancellor as it so the clerk had stated to the men in the appeared on the face of it. barges that they were trespassers upon the It is very much to be lamented that the canal, but they were not stopped or im- state of His Lordship’s health prevents him peded in any manner, and the injunction from deciding himself upon this case, but had not, therefore, been infringed. It was it does not follow because the Lord Chantrue that the defendant had brought fifteen cellor is prevented from acting in the actions against the company, but this was matter, that therefore I can. My opinion not an act restrained by the injunction. The is, that I have no power to interfere, and order made did not go to prevent the ques- the order must be taken as it stands; and tion being tried at law, and the injunction consequently, the only question is, whether now asked for to restrain these proceed upon the facts stated, I am justified in ings could only be granted upon a supple- committing Mr. Dimes for a breach of the mental bill filed by the company for that injunction ; and whether he ought to be purpose.
restrained from continuing his actions at
law. In such cases as these, it has always Mr. Randell appeared for other defen
been the rule of the Court to see whether dants in the suit.
there has actually been a breach of the Mr. Stuart was heard in reply, only injunction, and not merely an intention to upon the question as to a breach of the do so. A rebellious disposition is not injunction having been committed.
sufficient, and it must be shewn that the
intention has been carried out so as actu(1) 3 Swanst. 529.
ally to contravene the very words found (2) 2 Str. 1173.
in the order of the Court. The terms of (3) 1 Q.B. Rep. 467 ; s.c. 10 Law J. Rep. (N.8.) the injunction were to restrain the defenM.C. 99.
(4) 6 Q.B. Rep. 753; s.c. 14 Law J. Rep. (N.s.) M.C. 73.
(5) 53 Geo. 3. c. 24. s. 2.
dant, his agents, servants and workmen M.R. : )
BURRELL U. BASKERfrom in any manner stopping, impeding or March 16, 17, 19; }
FEILD. obstructing, or causing or procuring to be April 4, 28. ) stopped, impeded or obstructed, the pas
Will-Implied Trust, Power of Salem sage of boats, barges or other vessels along
Conversion - Vested Interests- Paymentthe canal. Now, that injunction was pro
Substitution. nounced in consequence of Mr. Dimes having placed some kind of bar across the A testator, by his will, gave to his wife canal, so as to operate as a complete ob- 2,0001. Bank stock to give by will among any struction to the navigation; and that being of his cousins most agreeable to her, but if the species of obstruction which gave rise not disposed of it was to be added to the to the order, we must consider whether general fund, and as residue go, share and the terms of the order have been expressly share alike, between all his first cousins. violated. It does not appear from the The testator then gave to his wife for her affidavits, that the fact of placing a clerk, life all the rest and remainder of his “ prowith a pencil and note-book in his hand, perty," real and personal, and all the money by the side of the canal had the least he had in the public funds, &c, with power effect in impeding the navigation. If the to vary the same; and he gave his wife and clerk had personally interfered to prevent executors power to renew or grant leases to the bargemen from proceeding, the case the best advantage for herself and his heirs ; might have been different; but I suspect and he gave his executors power to sell strongly that such an interference would any of his estates, and fund the money, have led to a very different result. All with power to give receipts. The testator the clerk seems to have done was, to take then gave to “ each" of his twelve first the numbers of the barges, and to use cousins 1001. stock; he named eleven, and words intended to convey to the minds of said "as my cousin W. A. B. has departed the bargemen that they were trespassers; this life, I desire the same legacy may be but my own opinion is, that such a pro- transferred or paid between his children, ceeding would produce no effect whatever share and share alike; hence I have allotted in preventing them from passing with their 1,2001, stock from my 5l. per cents. to be barges, and, in point of fact, there was no paid to my twelve first cousins." The testator such effect produced. It appears to me, then gave several other legacies, and after therefore, having regard to the terms of the death of his wife, said, “I give full the injunction, and the narrative of facts power to my executors, their heirs or assigns, which took place, that there has been no to collect all my property together, and sell breach of the injunction, and therefore no the houses and other estates, and to convert reason for making an order to commit into money all my funded property," and
With respect to the other point, it seems then to pay some legacies to several persons to me to stand in a different position, named. “Then the whole of the remainder because it is plain on the face of the decree of my property is to be divided share and that it was intended that the question share alike to my aforesaid twelve first should be finally settled between the plain- cousins and their children." The testatiffs and the defendant, and it is evident for appointed his wife and C. and M. that by commencing these fifteen actions executors of his will. He afterwards at law Mr. Dimes has committed an act made a codicil to his will, and revoked which is inconsistent with and contrary to the legacy given to Mrs. B. one of the first the tenour of the decree made by this cousins, if she did not comply with a request Court. My opinion, therefore, is that on he had made, but he declared that he did not this point there must be an order for an thereby mean to exclude her children from injunction. I shall not, however, give any the benefit she might thereafter possess in costs,
the final division of his property after the decease of his wife. At the decease of the tenant for life all the first cousins were dead, some had left children and others had died
without having disposed of their interests :- and I hereby give them full power to sell Held, that the executors had power to sell and dispose or charge the same, and their the real estates, and that it was a conversion receipt or discharge, when signed by them, of the whole into personalty : that the in- to be a good and perfect bargain of sale, terest of the twelve first cousins, including and each one to be answerable only for the first cousin who had died, vested imme. their own misconduct, and not for the diately on the death of the testator as if all other." had been named; that the division was post- The will then stated, “I hereby request poned till the death of the tenant for life; my friends, Horatio Cock and Joseph that the interest of each first cousin who died Maberly, to be joint executors with my in the lifetime of the tenant for life, leaving dear wife, who I hereby appoint executrix children, was divested, and the children of and residue legatee of this my will, and such first cousin, including the children of I give to my two friends, Mr. Cock and the first cousin who had died in the lifetime Mr. Maberly, for their trouble therein of the testator, took their parent's share by 501. each," and if they survived his wife, way of substitution.
as at the final settlement of his property
they would have more trouble, he gave Thomas Baskerfeild, by his will, dated them a further bequest of 1001. each. the 20th of December 1815, after giving The will then stated, “The following his house at Colchester, with the furniture, legacies and gifts I beg may be paid or &c. to his wife, and directing the trustees transferred within the year after my deto transfer some settled stock to her, stated cease. To each of my twelve first cousins “I hereby give and bequeath to my dear I give 1001. stock from my 5l. per cents., wife all my 2,0001. Bank stock for her to to be transferred to them free of expense. give by will to and among any of my To Mrs. Bray, Mrs. Frances Brandreth, cousins as shall be most agreeable to her; Mrs. Alice Brandreth, Mrs. William Gape that she may have it in her power to re- and her three sisters, Mrs. West, Mrs. ward their kindness to her. But in case Elizabeth Baskerfeild and Mrs. Catherine she does not choose to dispose of the same Baskerfeild, Mrs. Mary Margaret Baskerby her will, then that Bank stock to be feild, Mrs. Catherine Baskerfeild, her sisadded to the general fund, and as the re- ter; Mr. Thomas Baskerfeild, Mrs. Burrell: sidue, after my dear wife's decease, to go and as it has pleased God to remove my share and share alike between all my first cousin Captain William Alston Brandreth cousins. And I hereby give, devise and from this life, to I hope a better, in remembequeath to my dear wife for her natural brance of him I desire the same legacy life, all the rest and remainder of my pro- may be transferred or paid by and between perty, real and personal, as freehold, lease- his children share and share alike. Hence hold, copyhold, and all the money I have I have allotted 1,2001. stock from my 5l. in the public funds or various stocks at per cents., to be paid to my twelve first the Bank of England standing in my name; cousins.” The testator then gave several and I hereby give my dear wife full power legacies. to sell out, or exchange any of the stocks, The will then stated, “And from and and in that case to refund the same to immediately after the death of my dear the best advantage into the names of her- wife, and not before, then I give full power self and my executors hereinafter named; to my executors, their heirs as aforesaid, and I hereby give my dear wife, with the to collect all my property together, and executors named in this will, full power to sell the houses and other estates, and to renew or grant any lease or leases of my convert into money all my funded property, farms or houses, to the best advantage for and then to pay the following legacies to herself and my heirs ; and I hereby give my godchildren," &c. and other persons them, my executors and executrix, full named. power to sell and dispose of them, if most The will then continued, “And I give convenient, and if so, the money arising 501. to each of my late cousin Nehemiah from the sale thereof to be funded as above Brandreth's children, that is, to Mrs. Wilin their names in the Bank of England; kins and her sister, Susannah Brandreth,
living near her. Then the whole of the the children of Mrs. Bray; Catherine, the remainder of my property is to be divided wife of John Walton, the only child of T. share and share alike to my aforesaid Baskerfeild ; Peter Ashwell Burrell, Isatwelve first cousins and their children.” bella Burrell, Mary Ann Burrell, Jane, the
The testator made several codicils to his wife of Duncan Alexander Maddeford and will, by one of which, dated the 8th of Thomas Burrell, five of the children of March 1816, after setting out an account Mrs. Burrell ; Thomas Alston Brandreth, of some stock belonging to Mr. Burrell's Hannah, the wife of Joseph Silver, Alice children, and naming the whole of them, Ann Brandreth, Henry Rowland Branhe said, “ It is most likely I may not live dreth and Alfred Brandreth, six of the to see the youngest child come of age, and children of Capt. W. A. Brandreth, were as this fund stands in the names of Mrs. the only children of the said twelve first M. Burrell and myself, and on my decease cousins of the said testator named in his it will be wholly in her name, I wish, if will, who were alive at the time of the possible, to secure the legacy to even the testator's death ; and that there had not youngest, and therefore desire and hereby been any child of either of the said twelve give full powers to my executors to with first cousins born since his death. hold paying her the legacy I have left her, That all the twelve first cousins named unless she agrees to place their names in in the testator's will were since dead. the Bank with her for the security of the That Dionysia, the wife of H. Brandreth, children's property, and if she will accept Caroline the wife of R. S. Wood and A. of Mr. Cock and Mr. Maberly being trus- Brandreth, three of the children of the testees, then she is to have her legacy; if not, tator's twelve first cousins, who were living I hereby revoke that bequest to her, but at the time of his death, were since dead. do not mean to exclude her children from The Master then found who were the the benefit she might hereafter possess in personal representatives, and also the heirsthe final division of my property after the at-law, not only of the several twelve first decease of my dear wife.”.
cousins named by the testator in his will, The testator died on the 1st of December but also of the children of the twelve first 1816, without issue, leaving his wife sur cousins who had since died; he also found viving; he was possessed of very consider which of them had died altogether inable real and personal estates, and upon testate, or intestate only as to real estate, the institution of this suit a decree was and which of them had devised such inmade, dated the 13th of June 1839, esta terest as they had in the testator's real blishing the will and declaring that the estate to other parties, and to whom ; and trusts ought to be carried into execution, this report was continued by a subsequent and directing very numerous inquiries. report, made in pursuance of a decree,
On the 28th of April 1845 the Master dated the 27th of February 1846, in which, made his general report, and among other among other things, he found that Sophia things he found that Mrs. Bray, Mrs. F. Baskerfeild, the testator's widow and tenant Brandreth, Mrs. A. Brandreth, Mrs. W. for life died on the 29th of November Gape, Mrs. West, Mrs. E. Baskerfeild, 1846 ; and upon these reports the cause and Mrs. C. Baskerfeild, Mrs. M. M. now came on to be heard. Baskerfeild, Mrs. C. Baskerfeild, the second Mr. K. S. Parker, Mr. Hodgson and of that name, Mr. T. Baskerfeild and Mrs. Mr. N. Wetherell, for P. A. Burrell the Burrell were eleven of the twelve first plaintiff.—The gift was to a class of percousins of the testator named in his will, sons to be ascertained at a future period, and that they were living at his death. and the time indicated by the will was the
That Capt. W. A. Brandreth was the death of the tenant for life; it was then twelfth first cousin of the testator named that the property was to be ascertained, in his will, and that he died in the lifetime and until then the interests could not be of the testator.
vested—1 Roper on Legacies, 588, 4th That Dionysia, the wife of Henry Bran- edit., 1 Jarman on Wills, 762. The direcdreth, Edward Atkins Bray, and Caroline, tion was, that the whole of the remainder the wife of Robert Serrell Wood, three of of the property was to be divided to his aforesaid twelve first cousins and their it must, therefore, be considered that there children. It is, therefore, to be consi- was a conversion-Grieveson v. Kirsopp dered whether the word “children” was (16), Ashby v. Palmer (17), Smith v. synonymous or in substitution. The will Claxton (18); and where a gift was made contained no gift, neither was there any to a class and their children, the issue trust for conversion created. The testator could not be ascertained until the death of only gave a power of sale with a direction, the testator, or the death of the tenant for upon the decease of his wife, to convert life; but here the words and their childand divide among a class, so that no divi- ren,” at the end of a direction to divide the sion was to be made until the time of residue among the twelve first cousins, distribution-Billingsley v. Wills (1), Ford evidently meant that the class should be v. Rawlins (2), Beck v. Burn (3), Cunning- ascertained at a future period—Lugar v. ham v. Murray (4), Chevaux v. Aislabie Harman (19), Butler v. Stratton (20), (5), Hoghton v. Whitgreave (6); and the Wright v. Wright (21). parties entitled must be those who could Mr. Follett, for E. A. Bray, the heir-attake by purchase-Buffar v. Bradford (7), law and personal representative of Mrs. Oates d. Hatlerley v. Jackson (8), Jeffery Bray. v. Honywood (9), Wild's case (10), Murray. Mr. Pryor, for the children of Mrs. v. Tancred (11).
Bray.-The twelve first cousins became Mr. Roupell and Mr. Willcock, for the entitled per capita, and Mrs. Bray's childother children of Mrs. Burrell.—The tes ren became entitled to her share. tator directed a conversion of the estate, Mr. Purvis and Mr. E. G. White, for and he referred to the constitution of a Mr. Watton.-C. Watton is the heiressclass to be ascertained at a future time. He at-law of seven of the twelve first cousins. could not have contemplated substitution; It is not said that there was any intestacy he knew the age and situation of the class as to real estate, but she claims such he intended to take, most of whom could interest as they have given to her by their have no issue, and he must have had more wills. Eleven of the twelve first cousins regard for the children of first cousins took per capita, but the children of the than for the personal representatives of twelfth took by substitution-Wild's case. first cousins; the interests, therefore, were And in the codicil of the 8th of March not vested—Salmon v. Green (12), Doe d. 1816 the testator in certain events revoked Stewart v. Sheffield (13), Viner v. Francis the legacy to Mrs. Burrell, but at the same (14), Knight v. Gould (15).
time he declared that he did not mean to Mr. Walpole and Mr. Grove, for the exclude her children from the benefit she children of W. A. Brandreth. The eldest might have possessed on the final division son claims to be entitled to a share of the of his property. This clearly shewed that real estate, but the will gave the parties the testator intended the children of first no option ; a power of sale was given, and cousins should have the benefit of the gift. without it the legacies would not be paid; It has been argued that no trust was (1) 3 Atk. 219.
created, and that the estates were not vested . (2) 1 Sim. & S. 328 ; s.c. 1 Law J. Rep. Chanc.
in trustees; that a power of sale was alone 170.
given; but as regards the testator's wife, (3) 7 Beav, 492 ; s.c. 13 Law J. Rep. (n.s.) there was a clear devise of the estates with Chanc. 319.
power of sale, as well as power to lease, (4) 1 De Gex & S. 366; s. c. 16 Law J. Rep. (N.s.) Chanc. 484.
and this affected the whole gift. (5) 13 Sim. 71.
Mr. Turner and Mr. Freeling, for T. A. (6) 1 J. & W. 146.
Brandreth, Ambrose Frampton and Eliza(7) 2 Atk. 221. (8) 2 Str. 1172. (9) 4 Madd. 393.
(16) 2 Keen, 653 ; s. c. 6 Law J. Rep. (p.s.) (10) 6 Rep. 16.
Chanc. 261. (11) 10 Sim. 465.
(17) I Mer. 296. (12) Ante, p. 166.
(18) 4 Madd. 484. (13) 13 East, 526.
(19) I Cox, 250. (14) 2 Bro. C.C. 658; s. c. 2 Cox, 190.
(20) 3 Bro. C.C. 366. (15) 2 Myl. & K. 295.
(21) 16 Ves. 188. New SERIES, XVIII.-CHANC.