at lawful interest on government or other real security, the rest and residue of the said trust monies, and also the said sum of 3,000l., after the death of his said son John, aud also the said principal sum of 600l. and interest, or the surplus thereof that might be left after renewing the lease therein before mentioned, together with all arrears of interest on the last-mentioned sum of money, upon trust that his said executors, or the survivor of them, did from time to time "when and as" the interest and proceeds of the said principal trust monies should become due and payable, pay and apply one third part thereof unto his daughter Nancy for her life, for the maintenance and support of herself and what lawful issue she might happen to have, and after her decease upon trust to pay, apply, and divide one-third of the said principal trust monies unto and among all and every the children of his said daughter Nancy, lawfully begotten, "when and as" they should severally and respectively attain the age of twenty-six years, with benefit of survivorship to the surviving child or children of his said daughter Nancy lawfully begotten. In case any or either of the children of his said daughter Nancy should happen to die under the age of twenty-six years without lawful issue, and in case either of such child or children, at the time of his said danghter's decease, should be under the age of twenty-one years, then upon trust that his said executors or the survivor of them, &c. should put out the principal share or shares of such child or children so under age upon government or real security, and during the minority of such child or children pay or apply and dispose of the interest and proceeds or a competent part thereof, in, for, and towards the maintenance and education of such child or children. And as to the other third part of the said interest and proceeds of the said principal trust monies, upon trust to pay and apply the same unto his daughter Eliza Newman, for and during the term of her natural life, for the maintenance and support of herself and such lawful issue as she might happen to have, and after her decease upon trust to pay and apply and divide one third of the said principal trust monies unto and among all the children of his said daughter

Eliza Newman, lawfully begotten, in like manner and upon the same trusts as the share or shares of the children of his said daughter Nancy, as last therein before mentioned, to be paid and laid out; and he declared that the respective receipts and receipt of his said daughter Nancy Gardner and Eliza Newman, notwithstanding their present or any future coverture, should be good and sufficient discharges to his said trustees and executors, for all such sum and sums of money as they during their natural lives should be entitled to receive from his said executors, under and by virtue of that his last will. He also directed that the interest and dividends should be paid to them respectively, and should not be subject to either of their husband's debts or controul. And as to the remaining one-third part of the said interest and proceeds of the said principal trust monies, upon trust, to pay and apply thereout unto his son Geoffery Grimwood for his life, or until he should happen to marry, the yearly sum of 100l., by even and equal quarterly payments on days therein mentioned; and in case his said son Geoffery should happen to marry, then upon trust, from the day of such marriage, to pay and apply the interest and proceeds of the said third part of the said principal trust monies, together with all arrears thereon, unto his said son Geoffery for his life, and after his decease upon trust to pay, apply, and divide unto and among all the children of his said son Geoffery, lawfully to be begotten, in like manner and upon the same trusts as the share or shares of the children of his said daughters were therein before mentioned to be paid and laid out; but in case his said son Geoffery should not happen to marry, then upon trust, after the decease of his said son Geoffery, to pay and apply out of the last mentioned one-third part of the said principal trust monies the sum of 1,000l., unto such persons, &c. as his said son Geoffery by his will or by any other writing should direct or appoint, and in default of appointment upon trust to pay the interest and proceeds of the said last-mentioned onethird part of the said principal trust monies, in equal shares, to his said daughters, in like manner as the interest of their respective third parts was therein before

directed to be paid, and after their or either of their decease, he directed that the said interest, and principal trust monies should be paid to and divided among the said children of his said daughters in like manner as the said two first-mentioned third parts were therein before directed to be paid; and in case any such direction, limitation, or appointment should be made, then upon trust to pay the interest and principal of the surplus of the said third part in the manner lastly therein before mentioned.

The testator also declared that it should be lawful for his trustees and executors, or the survivors of them, &c. if they should think proper, and that it would be for the benefit of any of the children of his said son Geoffery, and his daughters Nancy Gardner, and Eliza Newman, to apply such part of the share of such child or children as they should think necessary in putting out apprentice, or otherwise in advancing such child or children in the world, and in case it should happen that either of them, his said son and his daughters, or any of them, should depart this life without leaving any child or children, or leaving such child or children, such child or children should happen to die under the age of twenty-six years, without lawful issue then living, then, and in any or either of the said cases, the principal trust monies so given to him, her, or them so dying, and to his, her, or their lawful issue as aforesaid, and all accumulations of interest then in arrear and unapplied, should be equally paid and applied unto the survivors or survivor of them upon the trusts therein before declared as to their, his, or her respective shares.

In consequence of doubts respecting the interest which the children of the testator's son and daughters were entitled to under the will, this suit was instituted for the administration of the testator's estate, and it was now insisted that as the will contained no gift, the legacies were not vested, and that as they were made payable at twenty-six, they were void for remoteness.

Mr. Malins and Mr. Toller.-There is no direct bequest in this case, but the trustees are directed to pay, apply and divide the principal monies among the children of his daughter when and as they severally attain twenty-six, but the in

terest is to be applied for their benefit in the mean time, and that is always in favour of vesting. In Batsford v. Kebbell (1) and Watson v. Hayes (2) the income was alone given; but this is a gift of the capital with a gift of the interest in the mean time. It is similar to Davies v. Fisher (3), where the parties were held to take vested interests; and in this case a gift by implication is to be implied from the clauses of survivorship and advancement; therefore as two of the children have attained twenty-one, they are entitled to payment of their shares-Bull v. Pritchard (4), Festing v. Allen (5), Bland v. Williams (6).

Mr. Roupell and Mr. Selwyn, for the children of Nancy Gardner.

Phipps v. Akers, 4 Man. & G. 1107.
Boughton v. Boughton, 1 House of Lords
Cases, 406.

Mr. Teed and Mr. Cardwell, for Geoffery Grimwood.

Hanson v. Graham, 6 Ves. 239. Leake v. Robinson, 2 Mer. 363. A trust for maintenance is usually considered to give a vested interest, and a direction to pay "when and as" or "as

soon as" merely denotes the time of payment, and where they are unqualified may be controuled by expressions and circumstances, so as to postpone the payment or possession only-Vawdry v. Geddes (7), Marquis of Bute v. Harman (8).

Mr. Turner and Mr. Humphrys, for the daughter of one of the next-of-kin.-The gift is confined to children who attain twenty-six; that is the time at which the trustees are to pay and divide; it is upon this direction that the whole gift depends. Davies v. Fisher was a case of direct trust

(1) 3 Ves. 362.

(2) 5 Myl. & Cr. 125; s. c. 9 Law J. Rep. (N.S.) Chanc. 49.

(3) 5 Beav. 201; s. c. 11 Law J. Rep. (N.S.)Chanc. 338.

(4) 5 Hare, 567; s. c. 16 Law J. Rep. (N.s.) Chanc. 186; 1 Russ. 213.

(5) 12 Mee. & W. 279; s. c. 5 Hare, 573; 13 Law J. Rep. (N.S.) Exch. 74.

(6) 3 Myl. & K. 411; s. c. 3 Law J. Rep. (N.S.) Chanc. 218.

(7) 1 Russ. & M. 203; s. c. 8 Law J. Rep. Chanc. 63.

(8) 9 Beav. 320.

for the children; but in this case no trust was created. There was nothing but a gift for maintenance. It was said that a gift to the children was to be implied from the gift over on survivorship, but the intention of the testator was expressed by the direction to pay at the age of twentysix, and no implication can be raised against that.

Boughton v. James, 1 Coll. 26.

Boughton v. Boughton, 1 House of Lords
Cases, 406.

Blagrove v. Hancock, ante, p. 20.

Mr. Nalder, for John Fuller.-The gift was in favour of a class, and it was not an interest subject to be divested. Mr. Toller, in reply.

The MASTER OF THE ROLLS.-The implication upon this will must be gathered from the whole of its provisions. If there was no ambiguity, the construction would be governed by the direction to pay. A gift to children at a certain time, or at a certain age, was different from a direction to pay to them when and as they should attain a certain age; in the one case there was a gift, but in the other there was only a direction. In this case the will converted all the testator's estate, and the interest of one-third was to be paid to the tenant for life, not for her own use, but for the maintenance of herself and her issue: this was a direct gift of the interest for a specific purpose. Could it then be said there was no gift to the children, when their maintenance was contemplated? But after the death of the testator's daughter the trust was to pay, apply, and divide one-third of the principal trust monies unto and among all and every the children of his daughter, lawfully begotten, not to all who should attain a certain age, but when and as they should severally attain the age of twenty-six. It was argued from this that there was a gift, and that a gift was to be implied from the direction to pay,. but the words "when and as" might just as well be applied to the time of payment. This occasioned an ambiguity, but the testator then gave to the surviving children of his daughter a benefit of survivorship, in case any child should die under twentysix, without lawful issue. Nothing is

more clear than that the testator intended no payment to be made until that time. It was then directed that the share of any child under twenty-one at his daughter's decease was to be put out at interest; it was to be invested, and the income applied for its maintenance. There are cases in which all the interest was not disposed of, but they do not apply here. The will then contained a power to apply the share of such child for its advancement. These powers have been frequently considered as shewing an intention to dispose of the whole, and that nothing was postponed by the conditional term "when" or "when and as," except the payment of the legacy-but before I decide, I will look at the cases.

Aug. 3.-The MASTER OF THE ROLLS. The question to be considered in this case is, whether the gifts to the children of the testator's daughter are void for remoteness, or whether they are vested interests, subject to be divested. Where there is a gift to a class of persons at a certain age, those who do not attain that age will be excluded from the benefit of the legacy. A direction to pay implies a gift, and a direction to pay at a certain age will, unless the party attain that age, prevent the gift from vesting, but a direction to pay to an indefinite class when and as they shall attain a certain age, does not necessarily point to the exclusion of any, or prevent their becoming entitled. The words might be only intended to postpone payment without postponing the gift. The testator's meaning was ambiguous; it became therefore necessary to look at the other parts of the will, to ascertain the intention, and though the case is not without a doubt, still I must come to the conclusion that vested interests were given to the children of the testator's daughter.

cause the costs of the suit, generally, were given to the plaintiff, the costs of the case sent to law not being mentioned :—. - Held, that the plaintiff was entitled to the costs of the case sent to law.

By the decree made at the hearing of this cause a case was directed for the opinion of a court of law. An opinion was returned in favour of the plaintiff, and, by a subsequent decree made in the cause, the costs of the suit were given generally, no mention being made specifically of the costs of the case at law.

A question arose, whether the costs of the case sent to law were, under these circumstances, to be paid by the defendant.

The case stood over for some time, in order to ascertain the opinions of the officers of the court.

If

KNIGHT BRUCE, V.C.-In this case a question was argued by Mr. Bacon and Mr. Glasse, whether, under the term, "the general costs of the suit," the costs of a case sent to a court of law were to be considered as included, there being no specific mention made of them in the decree, and no order being made respecting them. I have consulted the officers of the court, and I have received answers from many of them. I were at liberty to decide now upon the merits of the case, which I am not, I should hold that the costs of a case at law ought to be given to the person who has the general costs of the suit. I am not at liberty to do this. The clerks of records and writs whom I have consulted wish not to answer the question, on the ground that they are not practically acquainted with the taxation of costs. I have not, therefore, the benefit of their opinion. The clerks in court, however, or rather the officers who were formerly so called, namely, Mr. Horne, Mr. Milne, Mr. Smith, Mr. Wainwright, Mr. Jackson, Mr. Baines and Mr. Mills, certify to me that such costs, if not specifically mentioned, are not considered as costs in the cause, and are therefore disallowed. Mr. Monro, one of the Registrars, has sent me a separate certificate, in which he states that he had examined many decrees, and had only found one case on the point, and that was at the Rolls in 1819-Shaw v. Towers-in which the costs of a case were ordered to be NEW SERIES, XVIII.-CHANC.

taxed separately. Then I have the certificate of seven of the Registrars, namely, Mr. Collis, Mr. Walker, Mr. Davis, Mr. Bicknell, Mr. Bedwell, Mr. Hussey and Mr. Wood, who say that they have made an extensive search, and have not been able to find any order in which the costs of a case sent to law have been awarded separately, and they are unanimously of opinion that, according to the practice of the court, such costs are always considered to be included in the term "costs of the suit." In this state of opinion among the officers of the court, I think that, as seven Registrars, whom I have named, have come to the conclusion which I have stated, I am justified in acting on my own opinion as to what is proper, and I therefore decide that the costs of the case ought to be considered as part of the costs of the suit, without being specifically mentioned. The order will be, that the costs of the case are to be included in the costs of the cause, but no order need be drawn up. The communication of my opinion to the Taxing Master will be sufficient. There will be no costs of this application.

The mortgagor of a mortgaged estate devised it to trustees upon trust to sell, with a power to give receipts to purchasers. A bill of foreclosure being filed by the mortgagee against the trustees only :-Held, that a decree in this suit would not bind the cestuis que trust under the will of the mortgagor.

By an indenture, dated the 19th of October 1830, a copyhold estate was mortgaged by Mr. Blackmore to Mr. Moseley.

Mr. Blackmore by will, dated in 1835, devised all his real estate to Mr. Cope and Mr. G. W. Thacker and their heirs, upon trust, that they or the survivor of them, or the heirs, executors, administrators, or assigns of such survivor, should sell and dispose of such real estate; and the testator declared that the receipts of his said trustees, or the survivor of them, or the heirs, executors, administrators, or assigns of such

3 R

survivor, for the monies arising from such sale of real estates should be sufficient discharges to the purchasers thereof; and the testator directed his trustees to stand possessed of the purchase-monies on certain trusts.

The testator died in 1838. Mr. G. W. Thacker alone accepted the trusts of the will, and was admitted to the copyhold property, and died having left Mr. C. W. Thacker his heir, who was also admitted.

The bill was filed by Mr. Moseley's representatives against Mr. C. W. Thacker alone, for a foreclosure.

Mr. Russell and Mr. Toller, for the plaintiffs, submitted that, under the 30th Order of the 26th of August 1841 (1), the mortgaged estate was sufficiently repre

sented by the defendant.

Mr. Wigram and Mr. Bloxam, for the defendant, submitted the question to the Court.

The

A bill was filed by A. against B, stating that A. had transferred certain shares into the name of B, and that there had been various dealings and transactions between them. The bill contained interrogatories inquiring particularly as to the dealings and transactions between A. and B. bill prayed for a re-transfer of the shares. B, by his answer, set out the 7 Geo. 2. c. 8. s. 8, and stated that he was a stockbroker, and that the answers to the interrogatories would tend to subject him to the penalties of the act, and declined to answer them :Held, that B. was protected.

The bill in this case stated that in March (1) Ord. Can. 173; 10 Law J. Rep. (N.s.) Chanc.

413.

1848, the plaintiff was entitled to some railway shares, and "that some dealings and transactions between the plaintiff and the defendants, who were co-partners in business, were then contemplated, in respect whereof it was probable that monies might become due from the plaintiff to the defendants, and that it was agreed that the plaintiff should transfer the shares to the defendants as a security for the balance which might become due from the plaintiff to the defendants, in respect of the said dealings and transactions." The bill then stated that the plaintiff accordingly assigned and transferred the shares to, or in trust for, the defendants. The bill then stated that "some dealings and transactions had taken place between the plaintiff and the defendants, but that all dealings and transactions between them had been concluded, and that no sum of money whatever was due from the plaintiff to the defendants upon the balance of the accounts between them; and that the defendants then held the shares as trustees for the plaintiff, and had no lien or charge thereon." The bill then stated that the plaintiff had applied for a transfer of the shares so deposited, and the refusal of the defendants. The bill then charged that the defendants ought to set forth the particulars thereinafter required. The matters as to the railway shares were then interrogated to, and the defendants were then required to set forth a number of particulars as to the transactions between the plaintiff and the defendants. Among these interrogatories were the following (somewhat abbreviated). "Whether the defendants do not pretend that the plaintiff was indebted to them; and that the defendants may set forth an account of the particulars and amount of the alleged debt, and how it arose and was constituted, and in respect of what contract, and also all the dealings and transactions between the plaintiff and the defendants in respect of which the alleged debt became due. And, if the defendants shall allege that they effected any sales or purchases as the agents of the plaintiff, or otherwise acted as the plaintiff's agents, then that they may set forth the particulars of every transaction in which they acted as the plaintiff's agents, the names and addresses of the several persons concerned in such transactions, and the particulars of the things or