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children but one, then to the use of such one child, and the heirs of his or her body. And it is my mind and will that no child shall have a vested interest until the age of twentyone years, as to sons, at which time his share shall be conveyed over or paid to him, and daughters at the age of twenty-one years or marriage.” The testator then declared that the share of every such daughter when vested should be conveyed to trustees and invested upon the securities therein mentioned, to be held under the same trusts in every respect in favour of such daughter and her husband, and their issue, as the trusts relating to his daughter Mary, her husband, and their issue in the bequest of the said sum of 1,000l. The will then contained certain provisions in the event of any such daughter dying unmarried having attained her age of twenty-one, or of such daughter having been married and dying leaving no child who should live to attain a vested interest.
The testator died in 1841. He left only the two children named in his will, John Fowler and Mary Mary Green in 1839 married Robert Baynes and had three children.
The testator at the time of his death was entitled both to freehold and leasehold estates, and there was a surplus of personal estate applicable to the trusts by the will declared of the residue. In 1846 J. F. Green executed a disentailing deed with reference to the freehold estates devised by the testator.
The bill was filed by J. F. Green against the executors of the testator and Mr. and Mrs. Baynes and their children, for the administration of the personal estate of the testator, and a partition of the freehold and leasehold estates.
By the 29th section of the Wills Act (1 Vict. c. 26.) it is enacted, “ that in any devise or bequest of real or personal estate the words “die without issue,' or
die without leaving issue,' or have no issue,' or any other words which may import either a want or failure of issue of any person in his lifetime or at the time of his death, or an indefinite failure of his issue, shall be construed to mean a want or failure of issue in the lifetime or at the time of the death of such person, and not an indefinite failure of his issue, unless a contrary in tention shall appear by the will, by reason
of such person having a prior estate tail, or of a preceding gift, being, without any implication arising from such words, a limitation of an estate tail to such person, or issue, or otherwise."
Mr. Prior, for the plaintiff.
Mr. Humphry and Mr. F. T. White, for Mr. and Mrs. Baynes and their children, contended, first, that under the words in the will “ except as to my said son J. F. Green," &c. in the parenthesis, the estate given to him and the heirs of his body was cut down to an estate for life, and that the property would, therefore, after his death go to his children if he had any; and if he had none, it would then go according to the trusts declared in that event in the gift of the 1,0001.; and secondly, that, on the supposition that the words in the parenthesis had not that effect, the gift to J. F. Green and the heirs of his body was cut down by the words “ in case there shall be a failure of issue of any of such children," as, under the 29th section of the Wills Act, these words must be held to apply to failure of issue at his death, as there could not be an estate tail in personal estate,
Mr. Faber, for the executors.
Knight Bruce, V.C.-I must consider that the words in the parenthesis are merely explanatory. I think that that parenthesis is not strong-not solid enough to change the previous gift.
As to the other argument [His Honour read the section]—I agree that, strictly and accurately speaking, there cannot be a bequest of personalty to a person in tail. But looking at the words in this section, "a devise or bequest of real or personal estate," and the words “ unless a contrary intention shall appear by reason of such person, &c. or otherwise," I think that the construction of the will is not affected by the section.
pressed :-Held, that notice of the motion ought to have been served on the other defendants.
A motion was made by one of several defendants in this cause, that the deposition of a witness, who had been examined by the plaintiff, should be suppressed.
The defendant who moved had not served the other defendants with notice of his motion.
A preliminary question arose, whether service on the other defendants was necessary.
Mr. Schomberg, for the motion, contended that such service was not necessary.
arbitralion. The order of reference was made a rule of the Court of Queen's Bench.
The plaintiff, before the award was made and without leave of the Court of Queen's Bench, revoked his submission to arbitration, proceeded with the suit, and obtained an order in Chancery for the issue of a commission to examine witnesses :--Held, on molion by the defendant, who had preferred the indictments, to restrain the execution of the commission, and to stay further proveedings pending the reference to arbitration, that he might be at liberty to proceed at law as he should be advised against the plaintiff for his alleged contempt of the Court of Queen's Bench, and that the commission should not be executed in the mean time.
KNIGHT BRUCE, V.C. said he thought that, as the other defendants had a right to read the depositions as their evidence, the motion was one affecting their interest, and that they ought to be served.
The motion stood over in order that the practice might be inquired into.
On a subsequent day
Mr. Schomberg renewed the motion, and citedLincoln v. Wright, 4 Beav. 166; s. c.
10 Law J. Rep. (n.s.) Chanc. 331. Sayer v. Wagstaff, 5 Beav. 462 ; s.c.
12 Law J. Rep. (n.s.) Chanc. 35. Jones v. Smith, 2 You. & C. C.C. 42;
s. C. 12 Law J. Rep. (N.s.) Chanc. 432.
Mr. Russell and Mr. Prior, for the plaintiff.
This was a motion to restrain the execution of a commission to examine witnesses, and to stay further proceedings in the suit, pending the reference which had been made of all matters in the suit to an arbitrator.
The bill had been filed for an account in March 1847; and by a decree, dated the 3rd of May following, it was referred to the Master to take the accounts between the plaintiff and the then late firm of Triston & Hardy, solicitors. The defendant Triston subsequently indicted the plaintiff for conspiracy with his brother, the partner of Triston, to defraud the latter by means of certain alleged fraudulent accounts; and also indicted the plaintiff for perjury in his affidavit on obtaining an injunction prayed by the bill. The indictments were removed by certiorari from the Central Criminal Court into the Court of Queen's Bench. When the trial came on at Nisi Prius it was agreed between the parties to refer the matters to arbitration. The following was the indorsement on the briefs of Sir F. Thesiger and Mr. Cockburn, the leading counsel at the trial :-"No evidence to be offered on either indictment, and verdicts of not guilty to be taken. All matters in difference between Triston and the defendant (the plaintiff in equity), to be referred on the usual terms and with the usual powers. Costs of the indictments to be in the discretion of the arbitrator. Prosecutor not to be prejudiced by not having offered evidence." An order of reference was afterwards obtained from Wightman, J., the Judge at the trial, and made a rule of court.
Knight Bruce,V.C. said that he thought that service on the other defendants was necessary.
WIGRAM, V.C. I
HARDY . DARTNELL. July 10, 11, 14.)
Arbitration - Rule of Court-Suit referred, Suspending Proceedings in-Contempt—Remedy at Law.
One of the defendants in the suit indicted the plaintiff for perjury and conspiracy. At the trial at Nisi Prius, verdicts of not quilty were taken by consent, and all matters in dispute were agreed to be referred to
The Queen v. Lord Falkland, (cited in
Kyd on Awards, p. 66, 2nd edit. in which Lord Kenyon is stated to have directed a reference to arbitration on an indictment for conspiracy and per
jury). The King v. Coombes, Ibid. 64. Elworthy v. Bird, 2 Sim. & S. 372 ;
s. c. 3 Law J. Rep. Chanc. 190.
The commission was ordered by the Vice Chancellor Wigram to be issued.
The plaintiff subsequently carried in a charge before the Master in equity, to whom the cause had been referred by the order of May 1847, and a motion by Triston in the Bail Court, for an attachment against the plaintiff on the ground of contempt, in proceeding with the cause pending the order of reference to the arbitrator, was refused. The plaintiff afterwards, and without the leave of the Court of Queen's Bench, professed to revoke the reference to the arbitrator. The time for making his award was twice duly enlarged by the arbitrator under Judge's orders, and such enlargements were made rules of court. The time was, by the last order, enlarged to January 1850, and no award had been yet made.
On the 20th of June 1849—
Mr. J.J. Jervis moved in the suit for an order for a commission to be issued to examine witnesses in Ireland, relative to the accounts directed to be taken by the Master by the decree of the 3rd of May 1847. The Master had certified that the examination of these witnesses was material. Reference was made to
Forsyth v. Manton, 5 Madd. 78.
s. c. 13 Law J. Rep. (n.s.) Q.B. 359;
and 15 Law J. Rep. (N.s.) Q.B. 360. and the cases there cited.
The motion was opposed by,
The Solicitor General and Mr. C. J. Foster. They cited
9 & 10 Will. 3. c. 15.
16 Law J. Rep. (N.s.) Chanc. 90,
1 Law J. Rep. Chanc. 209.
s. c. 2 Law J. Rep. Chanc. 80, 171. Nichols v. Roe, 5 Sim. 156 ; s. c. 3 Law
J. Rep. (n.s.) Chanc. 90 (reversed by
The present motion was now made, on the behalf of the defendant Triston, to restrain the execution of the commission, and in effect to stay further proceedings in the suit pending the reference to the arbitrator.
The Solicitor General, Mr. Hurlstone, and Mr. C. J. Foster, for the motion.
On the propriety of raising the question by motion instead of filing a bill, they referred to Mitford on Pleading, p. 94, 4th edit., and cited the case of Tebbutt v. Potter (2).
Respecting the validity of the reference to arbitration and other points connected with it, and in addition to the authorities mentioned in the argument against the motion for issuing the commission, they cited
3 & 4 Will. 4. C. 42. s. 39.
batch, 2 Dowl. & Ry. 265.
7 Sc. N.R. 499; 1 Dowl. & L. P.C.
763; 13 Law J. Rep. (n.s.) C.P. 5. Rushworth v. Barron, 3 Dowl. P.C.
1 Moore, 120.
s. c. 1 Nev. & M. 275 ; 2 Law J. Rep.
(1) The Solicitor General said, during the argument, that the reference in this case as entered upon the record, was in respect of “all matters in difference upon any account whatsoever''; and that it did not, as reported by Mr. Phillips, include “only the matters in question in the suit."
Mr. D. D. Keane and Mr. J. J. Jervis, contrà, cited
Keir v. Leeman, supra.
1 Smith's Leading Cases, 154.
(2) 4 Hare, 164.
The King v. Bardell, 5 Ad. & E. 619;
s. c. 1 Nev. & P. 74; 6 Law J. Rep.
(N.s.) K.B. 30. Barnardiston v. Foulyer, 10 Mod. 204. Bean v. Newbury, 1 Lev. 139. Milne v. Gratrix, 7 East, 608. King v. Joseph, 5 Taunt. 452. Johnson v. Ogilvy, 3 P. Wms. 277. The Solicitor General replied.
WIGRAM, V.C.-The bill in this case was filed by the plaintiff against the defendants Triston, Dartnell and another, the object being to take certain accounts in which Dartnell had no interest, except that he had been appointed to receive the income of certain property for the benefit of the other two. The defendant Triston took proceedings of a criminal nature against Hardy on two indictments, one being for perjury, and the other for a conspiracy to defraud him. Upon these proceedings coming on for trial, it was arranged between the parties (and I assume it to have been with the approbation of the Judge) that a verdict of not guilty should be entered on both indictments, and that a reference should be made of all matters in dispute between the parties, which, of course, would include the Chancery suit and the subject of it. Several questions arose as to whether any. thing connected with the indictments was involved in the reference, which are not material for me to consider with a view to the observations I have to make. This reference took place in 1848. Several proceedings went on for some time, and at last the plaintiff revoked the submission to arbitration, and applied in this Court for a commission to be issued to examine witnesses under the order for taking the accounts. Supposing the award to have been made, it would have settled all the questions of account. In one case I think I did go so far as to stop further proceedings in a suit, the object of which might be accomplished by the award made under the submission of the parties. But that is not the way in which this case is to be tried. Here no award has been made, and the question is, whether I am to take the same course upon the motion which has been made (in effect) to stay the proceedings in the suit, while the matter remains in its present state before the arbitrator. Now,
some arguments urged with very great learning have been addressed to me, to shew that this reference to arbitration was altogether null and void, being a reference of matters which formed the subject of criminal proceedings, although it involved many other points. It is on that ground that I have been called upon to stay these proceedings. Now, in the case of Hutchison v. Hodgson (3), a similar application was made, and the Court of Exchequer held that the right course was to proceed at law against the parties for contempt, in violating the rule of Court by the course they were pursuing, and not to apply to stay proceedings. I do not mean to give any opinion as to cases which may arise where this Court would do otherwise. I am quite clear that the course I ought to take is, to let this motion stand over, with liberty for the defendant Triston to take such proceedings as he may be advised. It is possible that a court of law may treat the act of the plaintiff in revoking his submission, and in taking proceedings in the suit after the submission, as a contempt, and deal with it (if it should be considered to have been a contempt) in a way which will furnish this Court with a guide in future similar cases. I cannot, with satisfaction to myself, deal otherwise with the case than by sending the parties to law, and direct that in the mean time, the commission shall not be executed.
RUDGE 0. WINNALL. July 20, 21, 23. }
A testator devised an estate of which he was in possession to B. for life, with divers remainders over; he subsequently bequeathed to his executors all his live and dead stock, household furniture and effects, and all his personal estate whatsoever and wheresoever, upon various trusts :-Held, that the growing crops passed to the executors, and that they did not belong to the devisee of the estate.
A testator directed his trustees to raise a
(3) 2 Anstruth. 361.
sum of 12,0001., for portions of the chil common, with cross-remainders between dren of his son J. and his daughter E, to them, in case any of the same daughters wards whom he stood in loco parentis, and should happen to die without issue; and, also to levy and raise for their maintenance for default of such issue, to the use of the and education in the mean time, until the right heirs of the said Elizabeth Rudge respective portions should become payable, for ever. such yearly sum (not exceeding what the in- The testator also gave and bequeathed terest of the expectant portion would amount unto John Winnall and William Winnall, to after the rate of 41. per cent. per annum) all his live and dead stock, household as to the trustees should seem sufficient, furniture, and effects, and all his personal The trustees raised for maintenance less estate, whatsoever and wheresoever, upon than the 41. per cent., and it was held, upon trust, as soon as conveniently might be a petition by the legatees, that they were not after his decease, to make sale and disentitled to interest but to maintenance only. pose of, and convert the same into money;
and, after payment thereout of all his James Barrett, by his will, dated the mortgage and other debts, funeral and 7th of December 1841, devised and ap testamentary expenses, and legacies, and pointed all those his messuages, lands, and the expenses of proving and executing his hereditaments, called Prior's Court, &c., said will, to stand possessed of the residue charged as thereinafter mentioned, to the thereof, upon the trusts thereinafter deuse of John Winnall and William Winnall, clared concerning the same. their heirs and assigns, upon trust, from The testator also gave and bequeathed time to time, to pay the rents and profits unto the said John Winnall and William thereof to the said testator's son, John Winnall the sum of 12,000l. sterling, and Barrett, for his life, and after his decease, also the residue of his personal estate, subto the use of the testator's grandson, James ject as aforesaid, upon trust, that they, the Barrett, and the heirs male of his body said John Winnall and William Winnall, lawfully issuing; and, for default of such and the survivor of them, and the execuissue, to the use of the right heirs of the tors, administrators, and assigns of such said James Barrett for ever. And the tes- survivor, should lay out and invest the tator devised and appointed all his mes same, when raised as thereinafter mensuage or tenement, lands, and heredita- tioned, in their or his names or name, ments, called Temple Court, &c., and all in the parliamentary stocks or funds of other the real estate whatsoever and where. Great Britain, or at interest on governsoever, in which he had any devisable in- ment or real securities in England or terest, or over which he had any general Wales, with full power to vary the same power of testamentary appointment, sub- as they should think fit. The testator ject, as thereinafter mentioned, to the use also declared that the trustees or trustee of the said John Winnall and William for the time being of his said will, should Winnall, their heirs and assigns, upon trust stand possessed of the sum of 6,000l., from time to time to pay the rents and part thereof, and the stocks, funds or seprofits thereof to the testator's daughter curities, upon which the same should be Elizabeth, the wife of Henry Rudge, for invested, upon trust to pay 4,0001., part the term of her natural life, and from and of the said sum of 6,000l., to James Barrett, after her decease, upon trust to pay the the son of his late son, James Barsame to the said Henry Rudge, for his rett, on his attaining the age of twentynatural life, and from and after his decease one years, and the sum of 2,0001., other the testator gave and devised the heredita- part thereof, to Louisa Barrett, the daughments last devised to the use of the first ter of his said late son, James Barrett, and other sons of the said Elizabeth Rudge, on her attaining the age of twenty-one according to priority of birth, and the heirs years, or marrying under that age; and in of his and their bodies, lawfully issuing, case only one of the said children should and in default of such issue, to the use of live to attain the age of twenty-one years the daughters of the said Henry Rudge, or marry, as aforesaid, then the said sum of and the heirs of their bodies, as tenants in 6,0001., so given for the benefit of the said