or ways; and what they are doing is raising the level of those streets, roads, or ways. It is difficult to conceive any parliamentary authority more clear and distinct than that which is conferred by the 16th section.

Then, the plaintiff says, "Though that is true, there may be other parts of the act which make the representation of these plans conclusive between the parties." It would be very strange if there were any such parts of the act, because it would be a direct contradiction to the 16th section; still we must look to see whether there is any truth in the allegation that there are other parts of the act referring to the plans as conclusive between the parties that the line shall not vary from what appears to be described on the face of the plan itself. Now, it would be very extraordinary if we found it, and for this reason, that there is a power of deviating laterally. It is quite obvious that if the line of the railway be deviated from, it would bring it nearer to the land on one side of the projected railway, and further from the land on the other side of the projected railway; therefore you immediately alter the relative situation of the railway with the adjoining land as described on the plan. But, according to the argument, all the other lands must remain exactly as they are; they are described as of a certain level, and although the company would have power to deviate laterally to a certain extent from the line laid down on the plan, they have no power to accommodate the neighbouring estates to the line so adopted by the deviation. It is quite obvious it would reduce the case to an absurdity to give them a power to do that in one part of the act, and in another part deprive them of the means of carrying it into effect. But, upon looking through the other clauses of the act, I find that there is nothing like a recognition of the plan as describing the neighbouring lands and providing that they shall remain in the state there represented. Indeed, the only one that is referred to with anything like an appearance of confidence is the 14th. Now, the 13th and 14th must be read together. The 13th says, "where in any place it is intended to carry the railway on an arch or arches;" clearly confining it to the railway. Then comes the 14th, which says, that "it shall not be lawful for the company to deviate

from or alter the gradients, curves, tunnels, or other engineering works described in the said plan or section; except within the following limits, and under the following conditions." Then come the limits and conditions, all confined to the line of the railway itself. Now, these words are relied upon to shew that this is an enactment that there shall be no departure from the engineering works; and those engineering works mean all works which might become necessary in consequence of the making of the railway. It is clear that those "other engineering works" mean other engineering works ejusdem generis, that is, other engineering works in the formation of the railway itself. There is nothing in the 13th section, nor is there anything in the 14th section, referring to anything but the works for the purpose of making the railway itself, and the exceptions and conditions are all exceptions and conditions confined exclusively to the works of the railway itself. Now, these are the only words which admit of any argument at the bar: that there is this gross inconsistency on the face of the act, that by the 14th section they have provided that there shall be no deviation from the works as represented on the plan; and the 16th section gives the company power to alter the level of the roads as they shall think proper. Of course, where there are two sections which, according to one construction, would be directly opposed to each other, and another construction, by far the most natural and obvious and consistent with the common use of language, which would create no such inconsistency, there is no choice between adopting the one or the other of those constructions. The 13th and 14th clauses are confined to the railway itself, and the 16th clause is intended generally to relate to everything that the company might think it expedient to do throughout for the purpose of the undertaking, and which in that section are called "accommodation" works, a word not to be found within the 14th section at all, but introduced into the 16th section because that 16th section is meant to apply to those collateral works which may become necessary in consequence of the principal works being carried into effect. There is no use looking through the other sections of the act. I do not think there are any which come at all near the point

which the plaintiff wished to attain; and that 14th clause which I observed upon is not at all aiding the construction.

So much for the general act. Now, the only description we find in the particular act is the 35th clause, which it is quite clear refers only to the line of the railway :-" And whereas plans and sections of the railway shewing the respective lines and levels thereof, and also books of reference containing the names of the owners, lessees and occupiers, or reputed owners, lessees and occupiers of the lands, through which the respective lines of railway are intended to pass, have been deposited with the clerks of the peace of the counties of Warwick, Stafford, and Worcester, be it enacted, that subject to the provisions in this and in the recited acts contained, it shall be lawful for the said company to make and maintain the said railway and works in the line and upon the lands delineated on the said plans."

Now, the result therefore of the whole is, that the 16th clause gives a power which is clearly the power that these parties are about to exercise, and is not restricted or controuled by any other part of the act. It is, therefore, distinctly brought within the case of The North British Railway Company v. Tod, that the purposes for which the plans are referred to are the line of the railway they are not referred to for the purposes of maintaining the position of other lands described and referred to in the book of reference; they are only introduced there for the purpose of shewing what were the lands which might be affected, and within the power of the railway company in execution of their powers; and therefore it is precisely what the House of Lords. decided in Tod's case, that the plans were operative only so far as they were intended to be referred to for the purpose of explaining the enactment, and were not operative so far as you shew the plans were not adopted by the act or incorporated in it by the clauses. It appears to me, therefore, very clear that this case is one that falls within those which have already been decided, and that there is no ground for the injunction which has been granted, and that the order for the injunction must be discharged.

Mr. Craig submitted that his Lordship

Power-Appointment-Period of vesting.

A testatrix, in exercise of a power, directed and appointed that her two trustees should pay, assign, or transfer a sum of 500l. unto A. B. upon trust for his daughter, to be vested in her, on attaining twenty-one years or day of marriage, which should first happen; and she directed the interest and dividends of the said sum to accumulate for her benefit, and be paid to her with the principal thereof, at the time before mentioned. The daughter of A. B. died under twentyone, and unmarried :-Held, that the representatives of the daughter took neither principal nor accumulations, and that the fund would go as if no appointment had been made.

The petition stated that Laura Thruston, by her will dated the 18th of June 1823, gave her residuary personal estate to trustees, John Thruston, since deceased, and William Malton, upon trust, to convert such personal estate into money, and out of the proceeds to set apart the sum of 500l., and invest the same in government or real securities upon the trusts afterwards declared; and the testatrix directed the remainder of her personal estate to be invested in government securities, and to be held by the trustees upon trust to pay the income to Anna Morgan, the petitioner, for her life, and after her death the principal was given to the two daughters of Anna Morgan, Julia Morgan, afterwards Julia Escudier, a widow, and Laura Morgan, afterwards Laura Rastall, the wife of Thomas Rastall, in equal shares as tenants in common. And as to the said sum of

5001., the testatrix directed that the said John Thruston and William Malton, and the survivor of them, his executors, administrators and assigns, should pay and apply and transfer the same unto such person or persons, for such ends, intents and purposes, and in such manner and form as Sophia Henshaw should, notwithstanding her then present or any future coverture, by her last will and testament in writing, or any codicil or codicils thereto to be executed by her in the presence of and to be attested by two or more credible witnesses, direct or appoint the same, and in default of such appointment by her, should stand possessed thereof upon the same trusts as were last thereinbefore declared with respect to the residue of the said testatrix's personal estate, and the securities in which such residue should be invested. That after the death of the testatrix, Laura Thruston, a suit was instituted in this court to administer her estate, and the said 500l. legacy was paid out of court to the trustees, who, after paying the legacy duty, invested the residue in the purchase of 5011. 7s. 10d. consols, and paid Sophia Henshaw the dividends till her death, which took place in February 1837. That the said Sophia Henshaw made a will, dated the 11th of October 1831, in the following terms: "Now I, the said Sophia Henshaw, in pursuance and in exercise and execution of the power or authority contained in the said hereinbefore recited will of the said Laura Thruston, and of all other powers or authorities enabling me in that behalf, do by this my last will and testament in writing, executed in the presence of two credible persons, whose names will be found attesting my execution thereof, direct and appoint that the said John Thruston and William Malton, and the survivor of them, his executors, administrators and assigns, do and shall pay, assign, or transfer the same unto the Rev. Robert Moore, upon trust for his daughter Grace Harriet Moore, to be vested in her on attaining the age of twenty-one years or day of marriage, which shall first happen; and I direct the interest and dividends of the said sum to accumulate for her benefit, and be paid to her with the principal thereof, at the time before mentioned; and I hereby appoint the said

Robert Moore executor of this my will." The petition further stated that the said Grace Harriet Moore survived the said Sophia Henshaw, and died on the 2nd of March 1847, under the age of twenty-one years and unmarried, leaving her father, the said Robert Moore, her sole next-ofkin; that the said J. Thruston and W. Malton had invested and accumulated the dividends of the said sum of 5014. 7s. 10d. consols, which accrued due after the decease of the said Sophia Henshaw, and that they had in February last transferred the same into the name of the Accountant General, under the recent Trustee Act, 10 & 11 Vict. c. 96. This was the petition of Mrs. Anna Morgan, the party entitled under the will of Laura Thruston to the life interest in the testator's residuary estate, and it prayed a declaration that the legacy of 500l., and its accumulations, amounting together to 683l. 12s. 9d. consols, which had been so paid into court under the recent Trustee Act, by the trustees of Mrs. Thruston's will, belonged to the residuary estate of the testatrix, and that 1821. 4s. 11d. 31. per cent. consols, the proportion of the 6837. 12s. 9d. consols above mentioned, which had arisen from accumulation of dividends, might be paid to her, and that she might be declared entitled to the income of the residue of the said consols, or so much as might be left after paying the costs for her life.

Mr. Bethell and Mr. J. Baily, in support of the petition, contended that there had been no effectual appointment made by Mrs. Henshaw under her power, and that the trust fund of 500l. consequently fell into the residue, and must be distributed accordingly. The appointment was not absolute, but was contingent upon Grace Moore attaining the age of twentyone or marriage, and as neither of these events happened, the fund was unappointed, and would, under the directions of Mrs. Thruston's will, in default of Mrs. Henshaw's appointment, form part of Mrs. Thruston's residuary personal estate, and become subject to the trust declared of such residue; and that Mrs. Morgan, the petitioner, was entitled to the accumulations of dividends from the death of Mrs. Henshaw.

The cases of

Balm v. Balm, 3 Sim. 492. Knight v. Knight, 2 Sim. & S. 490. Watson v. Hayes, 5 Myl. & Cr. 125; s. c. 9 Law J. Rep. (N.s.) Chanc. 49. were cited in support of this argument.

Mr. Humphry, contrà, contended that by the appointment in Mrs. Henshaw's will, the legacy became vested in Grace Harriet Moore, and that her father, Mr. Moore, who was her next-of-kin and administrator, was now entitled to the whole fund. The testatrix had expressly directed that her trustees should pay, assign, and transfer the fund to the Rev. R. Moore, upon trust for his daughter Grace Harriet Moore, to be vested in her, and there was no subsequent expression which could be held to controul that direction. The interest and dividends of the fund were to be accumulated for the benefit of Grace Harriet Moore, and to be paid on her attaining the age of twenty-one or marriage: but it was evident that she did not intend that these words should controul the previous express direction that the money should be vested in her.

The following cases were cited

Russell v. Buchanan, 7 Sim. 628; s. c. 5 Law J. Rep. (N.s.) Chanc. 122. Comport v. Austen, 12 Sim. 218. Attorney General v. Malkin, 2 Ph. 64; s. c. 16 Law J. Rep. (N.s.) Chanc.

99.

Packham v. Gregory, 4 Hare, 396;

s. c. 14 Law J. Rep. (N.s.) Chanc.

191.

Blease v. Burgh, 2 Beav. 221; s. c. 9 Law J. Rep. (N.S.) Chanc. 226. Bull v. Pritchard, 5 Hare, 567; s. c. 16 Law J. Rep. (N.s.) Chanc. 185. Saunders v. Vautier, Cr. & Ph. 240; s. c. 10 Law J. Rep. (N.s.) Chanc. 354.

Lister v. Bradley, 1 Hare, 10; s. c. 11 Law J. Rep. (N.S.) Chanc. 49.

1 Jarman on Wills, 766.

The VICE CHANCELLOR.-The question is only this, whether the natural import of the words, "to be vested in her upon attaining twenty-one or marriage," can be cut

down so as to imply merely this, that the direction to be vested shall be made identical with the direction of payment. It appears to me, the testatrix here, in exercising the power of appointment, shews plainly there was in her mind a distinction between the phrase "vested" and "payment," because she exercises the power of appointment (rather in a wordy manner I admit) by directing that John Thruston and William Malton, who were the executors of the first will, should pay, assign, and transfer the fund in question to the Rev. Mr. Moore, in trust for his daughter Grace, to be vested in her on attaining twenty-one or day of marriage, which should first happen; so that the proposition, that the interest in the principal sum should be vested in her on attaining twenty-one or marriage, is made quite consistent, and not in the least cut down by the subsequent direction that the interest and dividends of the same should be accumulated for her benefit, and paid to her with the principal at the time before mentioned,—meaning plainly, that the whole thing should be vested at a given time, and then, and not till then, the payment of the principal money and intermediate dividends should be made to her. Now it appears that the party did not attain twenty-one, and therefore did not acquire a vested interest; consequently, the whole bequest fails, and the thing is to be treated as if it were originally part of the principal fund; that is, that the party who took for life would take in remainder, as if there had never been any appoint

dividends of part thereof to W. H. for life, and afterwards to his children, and the remainder of the 2,120l. to other persons named; and the testator declared that in case his estate should not be sufficient to pay the legacies in full previously to the death of his wife, then such legacies should only be paid in part during the life of his wife, and the same should be made up after her decease. The estate proved to be insufficient to pay the legacies in full during the life of the testator's wife:-Held, that the legatees were only entitled to interest upon the unpaid portion of their legacies from the time at which the remainder should be capable of being paid up.

William Crispe, the testator in this cause, by his will, dated the 22nd of April 1808, bequeathed all his personal estate and effects to the defendants upon trust to place out so much money in the public funds as would produce the clear yearly sum of 100l. to be by them paid yearly to his wife, Mary Crispe, for her life, and then upon trust to place out so much money in like securities as would produce the further yearly sum of 20%. to be by them paid yearly to his mother-in-law, Jane Crispe, since deceased, for life, then upon trust to place out the further sum of 2,120l. upon the like securities, and receive the dividends of 1,000l. part thereof, and pay the same to the defendant William Holmes, since deceased, for his life; and after his decease, upon trust to apply the dividends of the said sum of 1,000l. for the maintenance and education of the six children of the said W. Holmes, in certain proportions therein specified, and the remainder of the said sum of 2,1201. the testator directed to be divided between other persons named in his will; and the testator further disposed of the residue of his said personal estate in manner therein mentioned; and he declared that in case his estate and effects should not be sufficient to pay the said several legacies therein before bequeathed, after investing in the funds or other securities the sums required to pay his said wife and motherin-law their respective annuities, then such legacies should only be paid in part and in proportion to the amount, during the life of his said wife and mother-in-law, and that the same should be made up to

the said legatees after the decease of his said wife and mother-in-law out of the monies so set apart for payment of their said annuities. The testator died in May 1808.

A bill was afterwards filed, and a decree obtained in 1831 for reference to the Master, to take the accounts of the personal estate of the testator; and by the report it appeared that the wife of the testator had married again, that his mother-in-law had died, and that the petitioners were the only children of W. Holmes beneficially interested in the before-mentioned sum of 1,000l., part of the said legacy of 2,120%., subject to the life interest of their father. That the personal estate of the testator was insufficient, after setting apart enough to pay the amount of 100l. to the testator's wife, to satisfy in full the several legacies subsequently given by his will, and that consequently the legatees ought to abate proportionally. W. Holmes died shortly after the 7th of May 1847, and this was the petition of his children, praying an account of what remained due to his estate for interest on the said legacy of 1,0007. down to the day of his decease, and also of what remained due to the petitioners for principal and interest from the decease of the said W. Holmes in respect of such legacy. The only question therefore raised upon the petition was, from what period interest was to be paid upon such parts of the legacy as could not be made up until after the death of the wife of the testator: whether such interest should be paid from the death of the testator, or only from the time the money would become payable.

Mr. J. Parker and Mr. Stinton, Mr. Bethell and Mr. Simons, Mr. Rolt, Mr. Piggott and Mr. Willcock appeared for the different parties interested.

The VICE CHANCELLOR.-The difficulty I have about this is, that by the clause in the will, the testator, foreseeing there might not be funds sufficient to pay the whole of the legacies, expressly directs that in case of deficiency, such legacies shall only be paid in part. Now supposing, there having been enough to pay in part, such part for some reason had not been paid, then to be sure interest would run on that part,-— that I can understand; but the testator says, "and in proportion to the amount