Ottywell Robinson died on the 7th of February 1837, having by his will, dated the 2nd of January 1827, bequeathed all his estate and effects to his wife Maria Robinson, and appointed her and William Walker executors. Ottywell Robinson left W. W. Robinson his heir-at-law; his executors renounced probate of his will, and, in October 1837, the defendant, W. W. Robinson, procured letters of administration of Ottywell Robinson's estate and effects to be granted to him. Ottywell Robinson, at the time of his death, was possessed of personal estate, and seised of real estates. A bill of revivor and supplement was filed in February 1838, against W.W. Robinson and Maria Robinson, praying an account of Ottywell Robinson's personal estate, and of the rents and profits of his real estate, which had been possessed by W. W. Robinson, and that the real and personal estates of the said Otty well Robinson might be applied in a due course of administration, so that the plaintiffs. might receive thereout the amount due to the estate of David Niven. The defendant, W. W. Robinson, by his answer admitted, that Ottywell Robinson died possessed of personal estate, and seised of real estate, but stated, that Ottywell Robinson, at his death, was wholly insolvent. Maria Robinson, by her answer, claimed her dower out of Ottywell Robinson's real estates. The supplemental cause now coming on to be heard on bill and answer, the question was, whether the decree ought to direct an account generally of the executor Ottywell Robinson's estate and debts, and of what was due to the plaintiffs and his other creditors, and of his funeral and testamentary expenses, and direct the usual advertisements to be published; or whether the decree ought to be limited simply to the direction for payment of the debt found to be due to the plaintiffs, out of the personal estate of Ottywell Robinson, and the rents and profits of his real estates. Mr. Knight Bruce, Mr. Stuart, and Mr. Purvis, for the different parties. HIS HONOUR was of opinion, that there could be no partial administration of real estate, and that the decree should be a general one in its nature. (See statute 3 NEW SERIES, VII.-CHANC. & 4 Will. 4. c. 104.) The decree, accordingly, ingly, as drawn up, directed (amongst other things) a reference to the Master to take an account of all the real estates of Ottywell Robinson, the executor, and of the rents and profits thereof, accrued since his death. An account was also directed of Ottywell Robinson's personal estate, possessed by W. W. Robinson, his administrator, and of what was due to the plaintiffs and the other creditors of Ottywell Robinson, and of his funeral and testamentary expenses; and the Master was directed to compute interest on such of the debts as carried interest, &c., and to state the priorities of such debts, and to cause advertisements to be published for the creditors of Ottywell Robinson to come in, &c. And it was ordered, that the personal estate of the said testator should be applied in payment of his funeral and testamentary expenses, and of what should be found due from Ottywell Robinson to the estate of David Niven, and the other creditors of the said Ottywell Robinson, according to their priorities, in a due course of administration; and it was ordered, that the real estates of Ottywell Robinson should be sold (subject or not to the dower of Maria Robinson, the widow, as might be arranged), with the approbation of the Master. Where a sole plaintiff dies, a motion on the part of the defendants, that his executors who had proved the will might be ordered to revive the suit within a limited time, or the bill stand dismissed, refused. The bill had been filed by a sole plaintiff, who died in the month of November 1837, having previously by his will appointed two persons his executors, who proved the same in December 1837. The defendants to the bill, had some time since put in their answer, and the present application by motion was, that the executors might be ordered to revive the suit within a limited time, or the bill stand dismissed, 2 N Mr. Lloyd, for the motion, contended, that as regarded the practice of the Court, the principle was the same, whether a sole plaintiff died or became bankrupt; and stated, that in the case of Randall v. Mumford (1), a sole plaintiff became bankrupt, and that it was there held, that it was competent in such a case for the defendant to move, that the assignees should revive the suit within a given time, or the bill stand dismissed that Porter v. Cox (2), Wheeler v. Malins (3), and Wade v. Lowring (4), were to a similar effect: and that Bowyer v. Shrapnell (5), and Deverell v. Bullock (6), a recent case, in which Mr. Willcock was counsel, were direct authorities in favour of the present motion, being cases of a deceased sole plaintiff. It was further contended, that if such a motion as the present were not sanctioned, great inconvenience and injury might arise to individuals, as well with reference to the doctrine of lis pendens, in the case of purchases made after the institution of a suit, and during a long abatement, as with reference to the Statute of Limitations; that in the latter case, a bill might be filed by a sole plaintiff, after a delay on his part, of, perhaps, five years and a half from the date of the happening of the cause of suit; that the sole plaintiff might then die, and his personal representatives delay taking any proceedings to revive for a further period of six years. Mr. Knight Bruce, for the executors, contended, that the motion was contrary to the practice of the Court, in the case of a bill filed by a sole plaintiff; and that at all events, the motion was unnecessarily early, the plaintiff having died as recently as in the month of November last. Testator, by will, gives all his estate, real and personal, "to C. B, to his heirs, executors, administrators, and assigns, to and for his and their own use and benefit, well knowing he would discharge the trust testator reposed in him, by remembering his sons W. B. and E. B, and his daughters, M. B, M. H," &c. :-Held, no implied trust in favour of the testator's other sons and daughters, but that the testator's son, C. B, took the testator's property absolutely and unfettered. The bill was filed by Edmund Bardswell, claiming an interest under the will of his father, Charles Bardswell, and it prayed a declaration of the rights and interests of the plaintiff, and defendants, the other children of the testator, Charles Bardswell. The testator, at the times of making his will and of his death, was seised of freehold estates, and entitled to considerable personalty; and by his will, dated in May 1826, after directing payment of his debts, he gave, devised, and bequeathed "all his estate and effects, both real and personal, of what nature or kind soever, or where the same might be, unto his son Charles Bardswell, to his heirs, executors, administrators, and assigns, to and for his and their own use and benefit, well knowing he would discharge the trust he reposed in him, by remembering his sons, William and Edmund Bardswell, and his daughters, Martha Bardswell, Mary, the wife of Thomas Hodgson, Jane Bardswell, Eliza Hodgson, and Maria Waln." The testator appointed Charles Bardswell, his eldest son and heirat-law, sole executor of his will, and died in June 1829; the will was proved by Charles Bardswell in the following month of July. A general demurrer to the bill, for want of equity, was filed by the defendant, Wm. Bardswell. Mr. Jacob and Mr. J. Russell, in support of the demurrer, contended, that there was no implied trust in the will in favour of the plaintiff; that it was impossible to say that anything was given to the plaintiff and defendants by the will out of the testator's own property; that the words in the will," to and for his and their own use and benefit," were sufficient to shew that the bequest to the testator's son Charles, was intended to be unfettered; that the words, "for his own use and benefit," were found in Wood v. Cox (1), where it was held, that the obligation was one merely of a moral and honorary character, and that there was no trust constituted thereby. The other cases cited, in support of the demurrer, were Sale v. Moore, 1 Sim. 534. J. Rep. (N.s.) Chanc. 134. Lechmere v. Lavie, 2 Myl. & K. 197. Mr. Knight Bruce and Mr. Wakefield, in support of the bill, contended, that Charles Bardswell took the whole of the testator's property, subject to a trust in favour of the plaintiff, and his brothers and sisters named in the will; that the word "trust" could only refer to the property, the subject-matter of the will; that the trust was certain in its nature, and the parties intended to take under the will designated but supposing the bequest to be void for uncertainty, in such a case, the next-of-kin of the testator would become entitled, who were the testator's sons and daughters, of whom the plaintiff was one. It was added, that in none of the cases cited was the word "trust" to be found. The VICE CHANCELLOR.-This case has been ingeniously argued; and the result (1) 2 M. & Cr. 690; s. c. 6 Law J. Rep. (N.S.) Chanc. 366. is, that one part of the case destroys the other. It is first observed, that a trust is created by the will; and then it is argued, that no trust exists. [Here his Honour read the words of the will.] It is clear the first words of the will give the whole property of the testator absolutely to his son Charles, the words being "to and for his and their own use and benefit;" and the words that immediately follow the gift to Charles are, 66 Ito his heirs, executors, administrators, and assigns;" the words of the alleged trust are personal only as to Charles Bardswell, and no trust is imposed by the testator on his "heirs, executors, administrators, and assigns." But the trusts might have been such as could only have been executed by the heirs, executors, administrators, and assigns of Charles, as, for example, if Charles had died a few days after the testator's death. The whole of the testator's property is absolutely and emphatically given to the son Charles, and it was left to him to provide for or give anything to his brothers and sisters as he chose. In construing a will, you must look at the particular language used by the testator, in order to determine his meaning; and there would, no doubt, have been in this case a trust constituted for the brothers and sisters of Charles Bardswell, if the testator had specified the parties, and stated out of what particular property the trust was to be executed. V.C. July 6. In re THE TRUST ESTATES OF THE PARISH OF ST. ANTHOLIN, IN THE CITY OF LONDON, AND in re THE ACT OF PARLIAMENT, I WILL. 4. c. 60. Act of Parliament, 1 Will. 4. c. 60Trustees-Leasehold Charity Estates. Leasehold, as well as freehold, charity estates are within the 23rd section of 1 Will. 4. c. 60, where all the trustees are dead; and a direction will be made under that section for the appointment of new trustees; and that a proper person be appointed to convey and assign the estates accordingly. The petition in this case was presented to the Court for the purpose of obtaining an order for the appointment of new trustees to act with the petitioners in the management of the trust estates of the parish of St. Antholin, in the city of London, and for the appointment of some person to convey and assign the property to the petitioners and the new trustees when appointed. The petitioners were the trustees for the time being of the trust estates, and had been appointed at the parish vestry meeting by election; and they had continued to act in the management of the trust estates, without getting in the legal estate. The By deed, dated the 19th of June 1754, an assignment was executed to certain persons of the trust estates, belonging to the parish, for the residue of the unexpired terms therein, and a conveyance was, at the same time, duly executed to the same persons of the freehold trust estates of the parish; no assignment or conveyance had been executed of any of the trust estates since that date; but some of the parishioners were, from time to time, elected and appointed at public vestry meetings of the inhabitants of the parish, to administer and manage the trust estates. parties to whom the trust estates were conveyed and assigned respectively by the deed of the 19th of June 1754, had been long since dead, and it was not known who was the survivor of them, or in whom the legal estate of the trust property was vested. The directors of the Eastern Counties Railway Company had given notice to the petitioners of their intention to take and purchase part of the leasehold property in question, under the power and authority given them by an act of parliament recently passed, to enable them to make and establish a railway; and it was necessary, for the purpose of enabling the petitioners to make an effectual assignment, that the legal estate of the trust property, which was outstanding, should be gotten in, and vested in some person who might assign the leaseholds, and also the legal estate in the freeholds. After reference had been made to the 8th, 9th, and 23rd sections of the 1 & 2 Will. 4. c. 60, the words of the 23rd section being general, the COURT made the usual order, under the 23rd section, for the Master to The bill in this case was filed on the 15th of December 1837, by the plaintiff against the Hon. William de Blaquiere and Lady Harriet, his wife, and stated (amongst other things) that in the month of September 1811, the two defendants intermarried, and in the year 1814 agreed to separate and live apart from each other; that it was agreed between them, that William de Blaquiere should allow and pay to Harriet de Blaquiere for their joint lives, the annual sum of 300l., for her sole and separate use, maintenance, and support; that in the month of May 1820, by a sentence of the Consistory Court, a sentence of divorce was passed, and it was decreed that Harriet de Blaquiere should receive from William de Blaquiere, and that he should pay to her for her sole and separate use, maintenance, and benefit, the yearly sum of 80l., in addition to the said yearly sum of 300l.; that on the 8th of June 1835, the said Harriet de Blaquiere was justly indebted to the plaintiff for goods sold and delivered, and money lent, in the sum of 2251., which she promised to pay to the plaintiff by and out of her separate income and maintenance, and to charge the same therewith; that, for that purpose, she agreed to accept a bill of exchange drawn by the plaintiff, which was as follows:-"London, June 8, 1835, 2251. One month after date, pay to my order, the sum of 2251. for value received, to the Hon. Lady Harriet de Blaquiere. Palace, Hampton Court, (signed,) C. Vander Gucht." That the said bill of exchange was accepted by Harriet de Blaquiere, payable at Messrs. Herries & Co., and afterwards, when due, duly presented for payment and dishonoured. The prayer of the bill was, that a declaration might be made, that the debt due to the plaintiff was a charge on the two yearly sums of 300l. and 801., and the arrears thereof, and that the plaintiff might be paid thereout his debt and costs; and that William de Blaquiere might be restrained from paying any monies on account of the said yearly sums to Harriet de Blaquiere, and Harriet de Blaquiere restrained from receiving payment thereof. On the 12th of February last, the plaintiff on affidavit of the facts above stated, obtained an injunction in the terms of the prayer of the bill against William de Blaquiere and Harriet de Blaquiere, and with liberty for the former to pay the amount due from him into court. The defendant, Harriet de Blaquiere, by her separate answer filed the 30th of May last, (amongst other things,) denied that either in the year 1814, or at any other time, it was agreed between her and William de Blaquiere, her husband, that he should allow or pay to her the sum of 300l., or any other sum, or that any sum was to be paid to her for and during the joint lives of herself and William de Blaquiere, or for any other period either for her sole and separate use, maintenance, and support, or otherwise, or that any articles of settlement or instrument in writing, were or was ever executed by her and her husband, or either of them, for the purpose of securing to her the yearly payment of 300l., or any other sum for her separate use; but she stated, that in May 1820, a decree was made in the Consistory and Episcopal Court of London, for a divorce, on her behalf; and by an order dated the 16th of May 1820, the Judge of the court allotted to her for alimony, the sum of 380l. per annum, to be paid quarterly; and she insisted that alimony was not in the nature of separate estate, but a provision for the wife's support and maintenance from day to day. Mr. Jacob and Mr. Lloyd now moved on the behalf of Lady Harriet de Blaquiere, to dissolve the injunction, and contended, that the application for the injunction by the plaintiff, was made under an erroneous impression, that there was in existence a separation deed, giving their client a sum of 300l. a year for her separate use; that the only question before the Court was, whether alimony could be attached or charged as separate property, and if so, could it be charged by a bill of exchange? It was contended, that alimony was given for a specific purpose, viz. the daily maintenance of the wife, and to relieve the husband; that it could not be pledged; that the Judge of the Ecclesiastical Court might vary its amount at any time, and that it might altogether cease by the husband's departure from the country; that it was similar in its nature to an allowance by a guardian to his ward; and that in all these respects it differed from separate estate. The cases cited in support of the motion, were De Blaquiere v. De Blaquiere, 3 Hagg. Murray v. Barlee, 4 Sim. 82; s. c. 9 Hunt v. De Blaquiere, 5 Bing. 550; Owen's case, Litt. Rep. 78. Anon. 2 Shower's Cases, 282. Street v. Street, Turn. & Russ. 322. Mr. Knight Bruce and Mr. James Parker, contrà, contended, that the question before the Court was, whether, where irreparable mischief might ensue to one party, the Court would not observe that there was a question to be tried between the parties, and continue the injunction for the present; that the bill sought payment of a general debt, and the plaintiff had a right to go against the alimony, to compel payment of it, independently of the question as to the validity of the charge |