and, after the period of accumulation, to divide the estates into three equal parts, and convey one of such allotments as follows: "to the use of the eldest male lineal descendant then living, and who shall be entitled to the first choice of such allotments, of my said son Peter Isaac Thellusson, in tail male; with remainder to the second, third, fourth, and all and every other male lineal descendant or descendants, then living, who shall be incapable of taking as heir in tail male of any of the persons to whom a prior estate is hereby directed to be limited, of my said son Peter Isaac Thellusson successively in tail male." He made similar limitations of the other two-thirds to his other two sons respectively, with cross remainders between them; and he ordered and directed his trustees, when any advowson was vacant, "to present a fit and proper person thereto, who should for that purpose be nominated by one of his said sons in rotation, the eldest having the first nomination, and the like nomination to be made by the eldest male lineal descendant of his said three sons respectively, in the order and rotation aforesaid, if he be capable by law of making such nomination, when the church became vacant, or in due time afterwards, otherwise the eldest male lineal descendant of the next brother was to present to such living. And in case it should so happen, that when such living or livings should respectively become void, or in due time afterwards, no male lineal descendant of any of his said sons should be capable of presenting thereto, he directed his said trustees, or the survivors or survivor of them, or such future trustees or trustee for the time being, to present to such living or livings respectively."

One of the testator's sons, George, died without male issue, but leaving daughters.

This bill was filed on behalf of an infant who was the eldest son of one of such daughters, and who was consequently the greatgrandson of the testator Peter Thellusson, through a female, claiming the right to nominate according to the rotation prescribed by the will, to a vacancy in a living, part of the trust property.

LORD ELDON, in a very long and able judgment, dismissed the bill, on the ground,

that upon the true construction of the will, a party claiming through a female was not entitled to such right of presentation.

An appeal was presented to the House of Lords, when, on hearing of the appeal and a cross appeal of the heir-at-law, two questions were referred to the Judges, which were in substance, first, whether on the supposition that the dispositions of the will had been legal instead of equitable, a great grandson claiming through males exclusively, would be entitled to nominate in preference to a great-grandson claiming through a female, both being adult; and secondly, whether on the supposition that both greatgrandsons claimed through males, an adult claiming through a younger son would be entitled to present in preference to an infant claiming through an elder son. The Judges certified on the first question in the affirmative, and on the second in the negative.

Whereupon, the House of Lords declared, "that the plaintiff was not entitled to any relief by his bill," and the cause being afterwards set down for further directions in Chancery, was dismissed. See Seton's Decrees, 391.

and appointed him his executor. By a codicil to his will, dated the 11th of August 1821, the testator " gave unto each of the two putative children of his deceased son the sum of 50l., in addition to a like sum given to them by his said will, and to be paid to them on their attaining the age of twenty-one years." The testator died in 1824, and the defendant afterwards proved his will. The plaintiff, Susannah Rogers, who was one of the illegitimate children of the testator's son, referred to in his will and codicil, attained her age of twenty-one years in March 1831. The defendant not having paid the plaintiff her two legacies of 501. and 50l., she filed this bill for the purpose of obtaining payment. There were two questions argued at the bar: first, whether, under the circumstances stated in the judgment of his Lordship, an order for payment of the legacies should be now made against the defendant, without having the accounts of the testator's estate first taken, the executor having denied assets; and, secondly, from what time interest was payable on the legacies.

Mr. Pemberton and Mr. H. W. Busk, for the plaintiff, asked for an order for immediate payment, with interest from the death of the testator.

Mr. Cooper and Mr. Hill, contrà, resisted an order for payment until the accounts had been taken; contending, that it was contrary to the practice of the Court to make such an order, unless there was a clear admission of assets; and, secondly, they argued, that interest was payable on the first legacy only from one year after the testator's death; and, on the second, from the time of the legatee's attaining twenty-one -Wetherby v. Dixon (1), and Ellis v. Ellis (2), were cited on the second point.

The MASTER OF THE ROLLS.-This is a bill filed for the payment of two legacies of 50%. each, given by the will and codicil of William Buckland, dated respectively the 1st of March 1821, and the 11th of August 1821. Now, the 507. by the codicil is given in addition to the 501. bequeathed by the will, and is payable to the legatee on her attaining twenty-one. There were

(1) 19 Ves. 407; s. c. Coop. 279. (2) 1 Sch. & Lef. 5.

two questions raised in this case, first, whether the defendant is at this time liable to an order for payment of the legacies, he having by his answer in terms denied assets. It is true, that ordinarily where a defendant denies assets, the accounts are first di rected to be taken; but it does not follow that accounts are in such cases directed to be taken, if, with the denial of assets, the answer discloses circumstances which shew a personal liability for what is asked. The question is, whether such circumstances exist in the present case; the testator having given certain legacies by his will, gives to the defendant, his executor, the residue of his personal, and all his real estate. After the death of the testator, his will was disputed, and the defendant then thought right to enter into an agreement with the relations of the testator, who were disputing the will, for a compromise. It was of this nature, that they should leave the defendant in undisputed possession of, and with an unimpeachable title to the real estates, and that the defendant should give to them all the personal estate, which is stated to have amounted to the sum of 2,500l. This they received, and the defendant was left in possession, with a confirmed title to the real estates. The personal estate was subject to the payment of the funeral and testamentary expenses, debts and legacies. The defendant dealt with it as his own, for the purpose of procuring for himself an indefeasible title to the real estate; but he could not thereby deprive the plaintiff of any benefit or claim to which she was entitled against the personal estate. It was in 1826, when he used the personal estate as his own, for his own advantage, undertaking to pay the debts, and funeral and testamentary expenses, but, as it is said, not the legacies. The transaction, however, took place under circumstances which could not by possi bility defeat the claims of the legatee.

After this, he being in possession of the real estate, is called on for payment of legacy duty, which he pays, even on the legacies in question, in the year 1830, and at various times pays the other legacies, and makes a compromise with another legatee, who was in the same circumstances with the present plaintiff. After the lapse of some years, he is called upon for an ac

count, and he renders one, and he says the debts are so much, and the personal estate so much, leaving a large balance, more than sufficient to pay the plaintiff; he does not, however, pay, because, he says, he has no assets, and for this reason, because he has given them to other persons, for the purpose of securing the real estates; and he has truly denied by his answer that he has assets, because he has given them to other persons, for the purposes I have stated. The question is, if this is such a denial of assets as to entitle him to have an account taken of the testator's estates; and I am clear that he has precluded himself from any title to an account in this respect.

The next question is, from what time interest is payable on the legacies. If there are no peculiar circumstances, interest is payable from the expiration of one year from the death of the testator. As to the second legacy, it was to be paid in addition to a like sum which is given by the will.

It is said, that the testator stood in loco parentis, or has assumed an obligation for maintaining the plaintiff. I do not recollect any case in which the circumstances of the present have occurred. The son of the testator, a very young man, who died under the age of twenty-one years, became the father of the plaintiff, in consequence of which, he became bound to save the parish from any liability. Not being able to do it, the testator, his father, stepped forward, and entered into a bond to maintain the child, and pay 3s. a week, and this obligation he seems to have performed during his life, with small exceptions. There were some arrears at his death, which were paid by the defendant.

The testator thus voluntarily assumed a duty for the sake of relieving his son, the effect of which was to contribute so much for the plaintiff's maintenance, and this was performed till his death; previous to his death, he had assumed the situation of one in loco parentis, and with this obligation pressing on him, he makes this provision for the children. The question is, whether this is not sufficient to extend the ordinary rule for payment of interest on the legacies, from one year after his death to the testator's death.

As to the first point-i. e. parties, see Walker v. Symonds, 3 Swanst. 75. Wilkinson v. Parry, 4 Russ. 274, n. Munch v. Cockerell, 6 Law J. Rep. (N.S.) Chanc. 9.

Wilson v. Moore, 1 Myl. & K. 143.

As to the second-the costs :

Mitchell v. Bailey, 3 Madd. 61.
Hill v. Kirwan, Jac. 163.
Keating v. Keating, 1 Mol. 218.
Giles v. Giles, 5 Law J. Rep. (N.s.)
Chanc. 46.

Court v. Jeffery, 1 Sim. & Stu. 106.
Attorney General v. Hill, 3 Myl. & C.

Will-Construction-Interest or Power. Bequest to a lady of a sum of stock, “to be transferred to her for her sole and entire use during her life, that she shall not alienate it, but enjoy the interest of it during her said life, and, at her decease, she may dispose of it as she thinks fit :"-Held, not to give an absolute interest, but a life interest, with a power of appointment by will; and the lady having died intestate, the stock was held to have fallen into the residue.

Henry Wright, by his will, dated the 12th of September 1824, after reciting that he had executed a deed of trust, settling a certain portion of his property, declared as follows:

"I stand possessed of the remaining sums-viz. 1,000l. in the old 4l. per cents. ; 6301. in the late Navy fives, and 1007. in the 31. per cent. consols, which I dispose of in the following manner-viz. I bequeath the 100%. in the 31. per cent. consols, to Johanna Grant, of No. 7, Charlotte Street, Pimlico; I give the interest of all the rest to my dear wife Eliza, to be enjoyed by her during her life; at her decease, I give the same to my child Henrietta; I further will, that at the decease of my wife, the sum of 1,000l. in the old 41. per cents. be transferred to Johanna Grant, for her sole and entire use during her life, that she shall not alienate it, but enjoy the interest of it during her said life, and at her decease she may dispose of it as she thinks fit; I further will, that after the decease of my wife, and should Henrietta also die, (without is sue,) and the above named Johanna Grant be living at the time of the decease of the said Henrietta, I, in that case, will and bequeath to Johanna Grant before named, the further sum of 2,800l. in the 31. per cent. reduced stock, which sum is referred to in the trust deed alluded to in the first part of this document; I further will and bequeath to my dear wife, my house and furniture, and everything appertaining to Ham (1), during her life; at her decease, I give the same to my child Henrietta; I also give to my wife the seven Lancaster Canal shares, during her life, and at her decease, I give the same to Henrietta. Dated at Ham, the 12th of September 1824. H. Wright. I appoint my brother sole executor of this my last will."

The testator afterwards made a codicil as follows:-"Codicil made the 19th of October 1824. In addition to the provision hereinbefore made for Johanna Grant, at the decease of my wife, I give and bequeath to her the further sum of 4301. in the late navy fives, for her disposal. Henry Wright."

The testator died on the 7th of April

(1) His residence.

1825, and his brother John Wright, a defendant, proved the will and codicil on the 21st of July 1825.

The 1,000l. 47. per cent. annuities, and 6301. Navy 51. per cents., were reduced in the testator's lifetime to 31. per cent. annuities, and by reason of a deficiency of the general personal estate for payment of debts, &c. these sums were partly applied for that purpose, and abated in proportion, leaving 8001. of the former, and 5041. of the latter, for the legatees.

On the 16th of February 1831, Johanna Grant married John Archibald, and died on the 9th of September 1832, and letters of administration of her effects were granted to her husband by attorney, he being then resident in the East Indies.

John Archibald, the husband, died in July 1834, and made a will, dated the 20th of the same month, but did not appoint an executor; and John Archibald, the plaintiff, obtained letters of administration, both of the estate of John Archibald and of Johanna his wife, deceased.

Eliza Wright, the widow of Henry Wright, the testator, died on the 6th of November 1835; and thereupon the plaintiff filed his bill against John Wright, the executor, and Henrietta Ann Wright Place, who was a natural daughter of the testator, claiming a transfer, not only of the 4301. bequeathed by the codicil, but also of the 800l. residue of the 1,000l. bequeathed by the will.

The cause came on to be heard on bill and answer; and owing to the parties differing on the minutes, was twice argued; first, on the 2nd of March, and again this day.

Mr. Knight Bruce and Mr. Rudall, for the plaintiff. The question is, what were the rights of Johanna Grant, in reference to the 1,000l. bequest-whether she took an absolute interest, or had only a power coupled with an interest for her life. One construction of this will is to read the passage beginning, "I further will, that at the decease of my wife," and ending "Johanna Grant," as if it were a parenthesis, and then there would be an absolute gift, which the subsequent declaration, as to the enjoyment during life, and the power of disposal at her death, would not abridge. There