defendant, and producing the original subpœna; and I am of opinion, that in this case the service of the subpoena was regular; and I have been informed, that it has been the constant practice to issue process of contempt on such service. The order nisi was therefore regularly obtained, and by the terms of it, it was to be made absolute, unless the defendant having personal notice thereof, should, within a limited time, shew cause to the contrary. In this case, the defendant had personal notice of the order, and did not shew cause why it should not be made absolute; but the objection is, that she was served with notice at a place out of the jurisdiction of the Court. In cases where a defendant is out of the jurisdiction, the plaintiff is not bound to go out of the jurisdiction for the purpose of giving formal notice of the order, but, that the ends of justice should not be defeated, the Court will order service at the dwelling-house of the defendant to be good service; and if in this case the plaintiff had applied for substituted service, it would have been granted (3). The defendant having a dwelling-house within the jurisdiction, but being temporarily absent, there is every probability that a notice given there would be communicated to the defendant; and the Court may attribute to the party personal knowledge of the process: but where there is really personal notice, it may be asked, what would be the advantage of resorting to substituted service? I thought that authorities might be found. Service of an order nisi for sequestration on a defendant, the object of which was to give notice, differed materially from the service of writs and process, to which the act 2 & 3 Will. 4. c. 336. applied. Under all the circumstances, I think the service of the order nisi was not irregular; but, considering that no authority on this point could be found, I am desirous of affording the defendant an opportunity of appearing; and therefore,

(3) The personal service of the order nisi for a sequestration may be dispensed with, if the defendant keep within his house, or cannot be served personally, by application to the Court, grounded upon an affidavit stating the fact, which, if it be deemed satisfactory, service by leaving the order nisi at defendant's dwelling-house will be substituted instead of personal service.-Hinde's Chanc. Prac, p. 98.

Will-Construction-Maintenance.

A testator gave the residue to an infant on his coming of age, and failing him over; and he directed the income to be applied for the maintenance, education, and benefit of the infant, as his executors should judge most advantageous for him. The infant died under twenty-one:-Held, that he was not entitled to the whole income which accrued during his life, but to so much only, as had been applied for his benefit in his lifetime.

This case will be found reported, ante, p. 173. The terms of the will of the testator, Robert Shawe, which are applicable to the point reported, were as follows:

66

Lastly, the residue of my property I will and bequeath unto Robert Shawe, the eldest son of the aforementioned Peter Shawe, for his sole use and benefit, upon the said Robert Shawe's coming of age; failing him, to the next male child procreate of the body of the aforesaid Peter Shawe lawfully begotten, who shall attain the age of twenty-one years; failing the male children of the said Peter Shawe lawfully begotten, to the aforementioned legatees, or the survivor or survivors of them in equal proportions-namely, Misses Anne Margaret and Elizabeth Macpherson, and Mrs. Christy Grant, Mrs. Isabella Macdonald, Mrs. Mary Macdonald, and Mrs. Anny Maclean, all daughters of the aforementioned Lewis Macpherson, Esq., of Dalraddy, North Britain, their respective shares to be at their free will and disposal: and whereas, the aforesaid Robert Shawe, the residuary legatee named by this will, is now under I do constitute and appoint my aforesaid executors, Francis Duncan and Alexander Bryce, and the survivor of them, guardians and guardian of the said child during his minority; and my will is, and I do direct, that they do apply the dividends arising from the property belonging to me, which may remain after

age,

paying the different legacies, and setting apart a sufficient sum for the payment of the annuities hereinbefore bequeathed, together with my funeral expenses (my debts being all paid) to the maintenance, education, and benefit of the said child, as they shall judge most advantageous for him; and in the event of his death before his reach

ing the age of twenty-one years, I do also constitute and appoint the said Francis Duncan and Alexander Bryce, and the survivor of them, to be guardians and guardian of the male child lawfully begotten of the said aforesaid Peter Shawe, who may succeed according to the before-recited disposition in this my last will and testament, with power to the said Francis Duncan and Alexander Bryce, and the survivor of them, as guardians and guardian, to apply the dividends aforesaid to the purposes above mentioned."

The testator died in April 1812, and Robert Shawe, the son of Peter, died in August 1814, an infant of the age of eight years. It appeared, that the income of the residue which accrued during the life of Robert Shawe the infant, amounted to 1,203., of which, 1867. only had been applied towards his maintenance. A claim was now made on the part of the personal representatives of Robert Shawe to the surplus income which accrued between the death of the testator and that of Robert Shawe the legatee: this claim was resisted by the residuary legatees of the testator.

Mr. Stuart, for some of the next-ofkin of the testator, contended, that there was no absolute gift of the dividends to the infant, but a direction only to apply what might be necessary for his maintenance; and that the remainder would only have vested with the residuary estate in the infant on attaining twenty-one; and, secondly, that if the legatees were entitled to the interest, it should be computed from one year from the death of the testator only-Douglas v. Congreve (1).

Mr. Tinney, Mr. Mylne, and Mr. Romilly, for parties in the same interest.

Mr. Spurrier, for the executor.

(1) 1 Keen, 424; s.c. 6 Law J. Rep. (N.S.) Chanc. 51.

Mr. Koe, for the representatives of the infant, Robert Shawe, contended, that during his life, from the time of the death of the testator, he was absolutely entitled to the dividends on the residue of the estate. That a vested interest in the capital was given, subject only to be divested in the event of Robert Shawe dying under twenty-one. That there was an express direction to apply the dividends on the residue for the benefit of this child, which was equivalent to a gift of the income. He contended also, that the interest was payable immediately on the death of the testator, and was not suspended until a year after his decease: he cited Deane v. Test (2).

Mr. Stuart, in reply.

The MASTER of the Rolls.-I do not think I need trouble you on the construction of this will. Robert Stewart was not entitled to more than what was actually applied for his maintenance, education, and benefit, recollecting that this was a gift of the residue, and that the testator intended to give the residue to Robert Shawe on his attaining twenty-one. There is a gift to Robert Shawe on his attaining the age of twentyone; and there is a direction to apply the dividends arising from the property (after the necessary deductions made from the property) for the maintenance, education, and benefit of Robert Shawe. As to so much of the dividends not so applied, it constituted a portion of the residue, to which Robert Shawe would have been entitled if he had attained twenty-one; but the testator says, failing this, it is to go to the next male child of Peter Shawe, and so on to the next, with limitations over. I think, on the peculiar wording of this will, that the dividends which were not applied for the maintenance, education, and benefit of the child, or which ought not properly to have been applied for the maintenance, education, and benefit of the child, (for no doubt the executors could not deprive him of any benefit which he ought to have,) constituted a portion of the residue, and are subject to the gift over of the residue.

(2) 9 Ves. 146.

M.R. May 24.

}

CANE V. MARTIN.

V.C. June 7.

NICHOLSON V. KNAPP.

New Orders, 1837-Practice-Demurrer. The suit had been commenced previous to the orders of 1837; one of the defendants afterwards filed a demurrer, and set it down at the Rolls:--Held, that the orders of 1837 did not give to the plaintiff such a right of selecting his court, as to render the proceeding of the defendant irregular.

This bill had been filed previous to the orders of 1837 coming into operation, but no special order on merits had been made. One of the defendants had lately filed a demurrer to the bill, and set it down at the Rolls.

Mr. Elderton, on behalf of the plaintiff, now moved to discharge that order for irregularity, and to take the demurrer off the file, contending, that if the demurrer were heard at the Rolls, it would prevent the plaintiff setting down his cause to be heard before the Vice Chancellor; and that it was not intended by the new orders to take away from the plaintiff his right of selecting his court. That the defendant ought therefore to have applied to the plaintiff, to elect in which court he would have his cause heard; and on the plaintiff making default, the defendant might then have applied to the Court.

Mr. Pemberton, for the defendant, was not called on by—

The MASTER OF THE ROLLS, who said, he did not see any reason for discharging the order; it was the same as before the new orders came into operation, when the defendant might set down the demurrer in which court he pleased. The new orders did not affect that right; but ordered, that when the case had been heard on demurrer, or on the merits, a party should not afterwards be at liberty to carry the cause to a Judge who was unacquainted with the circumstances of the case.

NEW SERIES, VII.-CHANC.

Practice.-Injunction-Benefice-Lapse.

Where the subject of litigation was the next presentation to a living then vacant, the bishop

in whose diocese it was situate was restrained

from instituting, &c., and from taking advantage of any lapse pending the proceedings.

On an application for a special injunction, the answer of the defendant and the affidavits in support of the application were filed the same day :-Held, that the affidavits were admissible in support of the motion.

The object of this suit was to obtain a decree for the specific performance of a contract, for the sale of the right of next presentation to a living, the performance of which was resisted by the vendor, the living having in the meantime become vacant by the death of the incumbent.

Mr. Knight Bruce and Mr. Beavan, on behalf of the plaintiff, moved for a special injunction to restrain the vendor from presenting any clerk to the rectory, other than the clerk of the plaintiff, and to restrain the bishop "from instituting, collating, or causing to be inducted any clerk other than the clerk to be nominated by the plaintiff to the said rectory or church, and from taking advantage of any lapse pending the proceedings in this suit."

The affidavits in support of the motion, and the defendant's answer, having been filed the same day,

Mr. Jacob and Mr. James Parker objected to the affidavits being used; but—

The VICE CHANCELLOR said, that he could not give priority to either; and that the affidavits might, consequently, be used.

Mr. Flather, on behalf of the bishop, in whose diocese the living was situated, objected to that part of the motion which sought to restrain the bishop from taking advantage of any lapse, urging that the Court ought not to interfere with his legal rights in case of a lapse; but

The VICE CHANCELLOR said, it had always been a matter of course to restrain

2 G

A testator gave certain annuities out of his residuary estate to his three children, "and requested the surplus of the annual income to be applied in accumulation of the capital of his property, for the benefit of his grandchildren;" and after the death of the survivor of his three children, he directed the residue to be divided amongst his grandchildren then living:-Held, that the direction for accumulation, exceeding twenty-one years from the testator's death, was void under the 1st section of the Thellusson Act, and that it did not come within the exception of the 2nd section :-Held also, that the void accumulations did not belong to the residuary legatees, but that they were undisposed of.

The testator having directed his trustees to convert his real and personal estate into money, when they should think proper, and to accumulate the income :-Held, that such part of the accumulations arising from the converted real estate, as was void under the Thellusson Act, belonged to the heir-at-law, and not to the next-of-kin.

A gift over amongst the survivors of a

class of individuals,-Held, under the circumstances, to apply not only to original, but accrued shares of a fund.

A suit to administer his estate having been rendered necessary by the form of the will of a testator, who had blended his real and personal estate into one common fund, the costs of the suit were directed to be paid pro ratâ, by the heir and personal representatives, out of accumulations devolved to them, in consequence of the directions to accumulate having partially exceeded the limits prescribed by the statute.

Joseph Wildsmith, the testator in the cause, by his will, dated the 11th of January 1804, after giving a life interest in a part of his estates to his servant, Mary Nicholson, gave to his trustees all his freehold and leasehold land, and all other estates whatsoever, "upon trust that they, his said trustees, or the survivors or survivor of them, or the heirs, executors, or administrators of such survivor, should at any time or times after his decease, when they or any of them should think proper, sell, dispose of, and convert into money, all or any part of his real and personal estate, and invest and place out upon security the money arising therefrom, after payment of his debts, funeral and testamentary expenses, and the costs and charges attending the execution of his said will, and should receive the rents, interest, and annual produce of his said real and personal estate, until the sale thereof, for the purpose of raising the annuity and weekly payments thereinafter by him bequeathed;" and after giving a power to his trustees, if they thought fit, of carrying on his business in manner thereinafter mentioned,. he gave some directions for carrying on his trade, and gave a weekly sum of one guinea to each of his sons, Joseph and Benjamin, for their lives, and an annual sum of 541. 12s. to his daughter, Elizabeth Eyre, which annual and weekly payments he directed to be made by his trus tees, out of the rents, issues, and annual profits of the estates; and he then proceeded as follows: "The surplus of such annual income, (if any,) I request, may be applied in accumulation of the capital of my property, for the benefit of my grandchildren,

and from and after the death of my said children, Joseph Wildsmith, Benjamin Wildsmith the elder, and Elizabeth Eyre, and the longest liver of them, upon trust that they, my said trustees, or the survivors or survivor of them, or the executors or administrators of such survivor, do and shall sell and convert into money all such part of my estate and effects as shall not consist of specie, and from time to time call in and receive the money, which shall be placed out upon security as aforesaid, and pay, distribute, and divide the same, after deducting the expenses of performing this my will, and the legacies hereinafter mentioned, unto and amongst all and every my grandchildren who shall be living at the time of my decease, equally share and share alike, save and except the share of Francis Maceroni, one of the children of my late daughter, Mary Ann Maceroni, deceased, one moiety or half-part of whose share of my estate and effects, I give and bequeath to his brother, George Maceroni, in consideration of the benefit derived by the said Francis Maceroni from the will of my late brother, Benjamin Wildsmith. And I do will and direct, that the shares of such of my said grandchildren as shall be under the age of twenty-one years, at the time of the decease of the survivor or longest liver of my said children, shall be placed out or continue upon security, and the interest thereof shall be applied in the maintenance of my infant grandchildren during their respective minorities; and in case any of my said grandchildren shall die before his or their share or shares of my estate and effects shall become payable by virtue of this my will, leaving lawful issue, then such issue shall be entitled to the share or shares which his, her, or their deceased parent or parents would have been entitled to, if then living; but in case of the death of any of my said grandchildren without leaving issue, before he, she, or they shall become entitled to receive his, her, or their share or respective shares of my said estate and effects, in manner aforesaid, then I give and bequeath the share or shares of such deceased grandchild or grandchildren unto and equally among my surviving grandchildren, to be paid at the same time and in the same manner as before mentioned, touching the

original share or shares of my said grandchildren.

The testator died on the 19th of October 1804. He had ten grandchildren then living, two of them were the children of Mary Ann Maceroni, a deceased child of the testator. The parents of the other eight were living, and were the children of the testator's children, Joseph, Benjamin and Elizabeth, to whom he had given the weekly payments and annuity by his will. Elizabeth Eyre was the survivor of the testator's children, and she died on the 9th of April 1834. Of the ten grandchildren living at the testator's death, five were living at the death of Elizabeth Eyre, and were now living-namely, Francis Maceroni and George Maceroni, Mary Ann Smith, John Peter Wildsmith, and James Eyre. The other five

namely, Mary Ann Cousins, Catherine Wildsmith, Benjamin Wildsmith, Joseph Wildsmith, and Elizabeth Rumsay, died in the lifetime of the daughter Elizabeth. One of them, Catherine Wildsmith, died without leaving issue living at the time of her own death, and the remaining twonamely, Mary Ann Cousins and Elizabeth Rumsay, died leaving issue, namely, Theresa Maria Cousins and Thomas Ramsay, who were living when they respectively died, but not living at the death of the testator's daughter Elizabeth.

Several questions were discussed in this case-first, whether the directions to accumulate beyond twenty-one years, after the death of the testator, was or was not void under the Thellusson Act (1);-se

(1) The 39 & 40 Geo. 3. c. 98. enacts, "That no person or persons shall after the passing of this Act, by any deed or deeds, surrender or surrenders, will, codicil, or otherwise soever, settle or dispose of any real or personal property, so and in such manner that the rents, issues, profits, or produce thereof shall be wholly or partially accumulated for any longer term than the life or lives of any such grantor or grantors, settlor or settlors, or the term of twenty-one years from the death of any such grantor, settlor, devisor, or testator, or during the minority or respective minorities of any person or persons who shall be living, or in ventre sa mere at the time of the death of such grantor, devisor, or testator, or during the minority or respective minorities only of any person or persons who, under the uses or trusts of the deed, surrender, will, or other assurances, directing such accumulations, would, for the time being, if of full age, be entitled unto the rents, issues, and profits, or the interest, dividends, or annual produce, so directed to be accumulated;