claim to the moiety of the 2000l. (less the 501. paid to Mrs. Moye), together with the back interest thereon. The only question which ultimately arose in the suit was, whether the 2000l. was divisible into moieties between Mrs. Whitehurst and Mrs. Moye, or into thirds, so as to include Mrs. Gibbons, who died in the father's lifetime. R. Palmer, Q.C. and F. T. White, for the plaintiff, contended that it was divisible in moieties. Selwyn, Q.C., Follett, Q.C., Lloyd, Q.C., Bagshawe, Q.C., Martineau, Wickens, Turner, Faber and Nalder for the several defendants. The following cases were cited :-Pawlett v. Doggett, 2V.86; Duke of Chandos v. Talbot, 2 P. Wms. 601; Lord Rivers v. Derby, 2 Ves. Sen. 72; Whatford v. Moore, 3 Myl. & Cr. 270; Woodcock v. Duke of Dorset, 3 Bro. C. C. 569; Skipper v. King, 12 Beav. 29; Lord Teynham v. Webb, 2 Ves. sen. 198; Lord Hinchinbrooke v. Seymour, 2 Bro. C. C. 395; Rook v. Rook, 2 Eden, 8; Mostyn v. Mostyn, 1 Coll. 161; Evans v. Scott, 1 H. of L. Cas. 43; Herbert v. Parsons, 2 Ves. sen. 261. [Воля not properly be treated as the case of a legacy given by a will and charged upon the real estate of the testator; and that, although the principles derived from these cases are not in a great measure applicable to the present case, still that it must not be forgotten that the 20007. here is not given by a will, but by a settlement, and it must therefore depend upon the terms of the settlement who are to take, and at what peried their shares become vested. It is true, no doubt, that the will of Sir N. Thorold gives the father power to raise this sum for portions for younger children, but the terms of the power are quite general, and the words of the settlement executed upon the marriage of the father exercising the power must govern the rights of the persons taking under it. The way in which the court considers the question is, I think, well expressed by Sir William Grant in Howgrave v. Cartier, 3 V. & B. 85: "The sort of question that arises in this case has so frequently occurred of late that there is no great difficulty in collating the law upon it. If the settlement clearly and unequivocally makes the right of the child to a provision dependent upon its surviving both or either of the parents, a court of equity has so authority to control that disposition. If the settlement is incorrectly or ambiguously expressed-if it contains conflicting and contradictory clauses, so as to leave in a degree uncertain the period at which or the contingency upon which the shares are to vest, the court leans strongly towards the construction which gives s vested interest to the child when that child stands in need of a provision, usually, as to sons, at the age of twenty-one, and as to daughters at that age or marriage." Now, regarding this settlement upon these principles, I think that it was not necessary that the children should survive the father in order to entitle them to a share of the fund. The words are, The sum of 2000l. for the portion or portions of the daughter or daughters, younger child or younger chil dren of Samuel Thorold on the body of Ann Anderson a be begotten, to be raised and levied within three calea dar months after the decease of Samuel Thorold, by such ways as should be most expedient, in manner fullowing, that is to say ;" and then it says how they are to take. The postponing here is for the convenience of the estate, in order not to derogate from the interest of the tenant for life. It is true that, in Whardy. Moore, Lord Cottenham affirmed the decision of Shad The MASTER of the ROLLS.-The question in this case is, whether, under the circumstances, the 20007. raiseable under the terms of the power contained in the will, and of the clause contained in the settlement executing the power for portions for younger children, vested in the younger daughters of Samuel Thorold upon their attaining twenty-one, and marrying in the lifetime of their father, or not until after the death of their father. The plaintiff contends that the fund is divisible in moieties, and upon his behalf it is urged that, under the words of the settlement, there is no gift except in the directions to raise and levy, which is to be carried out upon the death of the father, and that even if this was not so, yet, as the gift is derived from the will of Sir Nathaniel Thorold, it is in the nature of a legacy charged upon real estate, and that consequently a different rule applies to such a case than in that of payment of mere pecuniary legacies payable out of personal estate, and that the time of payment is annexed to the substance of the gift, for which Paulet v. Paulet is referred to as establishing the distinction which has been followed in many subsequent cases. Most of these are cited and commented upon by Lord Cottenham in Whatford v. Moore. Upon the other side reliance is placed upon the argument that this case falls within an extensive ex-well, V.C., who came to a different conclusion; but, ception to the rule above referred to, which is, that where an estate is devised to one for life, and is charged after his decease with legacies, the payment of the legacies is postponed till the decease of the devisee only, because it would derogate from his life-estate if they were raised in his lifetime; and consequently, that as the payment is postponed for the convenience of the life-estate, it is inferred that the intention was that the legatee should take the legacy at all events, although he did not live till the time when it became payable; and this constitutes a distinction between such cases and those where the legacy is postponed on account of circumstances applicable to the personal character of the legatee exclusively, such as his attaining twenty-one, or marrying, or the like, in which latter class of cases, if the legatee die before the appointed time, the legacy falls into the estate, while in the former class of cases, although the legatee die before the legacy is payable, his representative will be entitled to receive it. If this were to be regarded as a case of charge created by a will simply, a question of some difficulty arising from the conflict of authorities might have to be determined, whether the portions would not vest during the life of the father at the time when they were required for the settlement in life of the children, upon the principle pointed out in The Duke of Chandos v. Talbot. But I think that difficulty does not arise, for I am of opinion that this case can upon examining that case, it appears that the L C did not by any means doubt the principle I have re ferred to as stated by Sir Wm. Grant, but that his Lordship relied upon the peculiar words of the instr ment in that case, which expressed, in the opinion ef the L. C., a direction that the money should be raised after the death of the husband and wife only for the benefit of the younger children then living, unless the husband should by writing direct it to be raised at 30 earlier period. Howgrave v. Cartier, to which I have already referred, was, I think, a stronger case for the construction the plaintiff insists upon; yet Sir Wi Grant held that survivorship was not necessary to cre stitute a right to receive a share of the portions settle It is clear those cases which determine that the parts not raised are to fall into the estate for the benefit of the reversion, to which some reference was made by Mr. White in his argument, if applicable, would be jurious to the case of the plaintiff, as it might raise the question whether the children who died in ind might not take a share, which, not having bee payable, must fall into the estate, but could in no case give his client above one-third. Nothing turns spon the fact that half was paid to Mr. Whitehouse. Ne case of acquiescence is alleged, nor anything that concludes the defendants from contesting the rig of the plaintiff, or which could give him more Mrs. Moye would be entitled to upon the mere words of than the settlement of her father; and upon this settlement I am of opinion that the charge vested in the three younger children upon their attaining twenty-one, although not payable until within three months after the death of their father." A discussion ensued on the subject of the costs of the suit, and it having been proved that an offer had been made by the owners of the estates, after the institution of the suit, to pay the plaintiff one-third of the 2000l. and interest, his Honour held that the plaintiff must pay the costs of all parties to the suit from that period. In settling the minutes of the decree, a question arose whether the decision of the M. R. was, that the plaintiff should pay the different parties appearing in different interests their costs, or only one set of costs, and the question was referred to the M. R. in chambers, who decided that the plaintiff ought to pay only one set of costs. A motion was in consequence made, on behalf of some of the defendants, to vary the minutes in this respect. The MASTER of the ROLLS.-I have carefully gone through this matter again, and I think that it is clear from the short-hand notes what the principle was upon which I decided the question of costs at the hearing. From the date of the offer to pay the plaintiff made in March 1858, the plaintiff was to pay the costs of the suit in the ordinary and usual manner, that is, the costs of all parties, but only one set of costs where there were trustees and cestuis que trust, and where there was an interest mortgaged and sub-mortgaged only one set of costs in respect of all that interest. There would, I think, be little difficulty in carrying that principle into effect; but it appears that I had the question before me in chambers, and the result was that I came to a conclusion that only one set of costs ought to be allowed in respect of all the subsequent incumbrances on the estate. I have now reconsidered the whole matter, and I have come to the conclusion that the opinion I expressed at the hearing is the correct one, and that the costs of all parties must be paid subject to the qualification I have expressed, and which is the usual direction given by the court in such cases-the only question, if this be so, is the way in which this principle will work. The result of it is, that I must consider that the court does not compel persons who have different shares in an estate to appear by the same solicitor, because their interests as regards their opposition to the claim of the plaintiff are identical. I think that I must follow that rule, and that accordingly, on the present occasion, I have not the right to make them suffer by reason of their not having adopted that course; the more so when I am informed that the plaintiff has required and obtained separate answers from each of the defendants. It is true that this may press heavily on the plaintiff, but I must act on what I consider to be the right principle, irrespective of the consequences. It remains, therefore, only for me to state in what manner this will work with respect to the costs of the defendants. There will be first the costs of the prior mortgagees. In the next place there will be one set of costs for Hood, the tenant for life, and all the incumbrancers thereon, which costs will be paid to the first of such incumbrancers. There must be one set of costs for the interest of Mary Hart Thorold, and another for the interest of M. H. Cookson, another for the interest of Grace Thorold, all of whom are entitled to separate and distinct interests in the property. The tenant in tail in remainder must have her costs in like manner. cestuis But the trustees for these defendants cannot have separate and distinct sets of costs from their que trust. This will include the defendants, who are mortgagees of a part of their interest; and the same observation applies to Sir Charles Henry John Anderson, who is also a trustee of a term under the indenture of 1822; and there must be only one set of [ROLLS. costs of the two last defendants on the record, who are trustees for the plaintiff. I regret the expense occasioned by this proceeding, and as it arises from my not having carefully adhered to the decision pronounced at the hearing of the cause, I must declare that no costs of this motion are to be paid. Dec. 13 and Jan. 16. MORRES v. HODGES. Leaseholds--Renewals-Direction to accumulate rents for payment of expense-Renewal impracticableRight to accumulations. Where a settlement comprised church beneficial leaseholds, and the trustees were directed to set apart a sum from time to time out of the rents to pay the fines and expenses of renewal from time to time; and subject thereto the rents were to be paid to the wife for life, and then to the husband for life, and then to the issue; ultimately, a renewal became impracticable: Held, that the tenant for life was entitled to the accumulation of the rents made for the purpose of in renewal. At the time of the execution of a settlement, dated 1819, made on the marriage of Anne Mary Foley and Richard Hodges, the said Anne Mary Foley and her sister Eliza Foley were entitled, as tenants in common, to the beneficial interest in a lease for a term of years of the glebe and tithe of Upleadon, in the county of Gloucester, held of the dean and chapter of Gloucester (subject to the life-interest of their mother therein)-with a contingent limitation in favour of the survivor of them, in case either should die without having been married, or without leaving issue living at her decease. By the settlement before mentioned the shares and share of the said Anne Mary Foley, vested and contingent, in the said glebe and tithe, were assigned to trustees, upon trust that they should, with and out of the rents thereof, pay and perform the rents and covenants contained or to be contained in the then present or any future lease of the said glebe and tithe, and on the lessee's part to be paid and performed, in respect of the share and shares thereby assigned, and should, from time to time, in conjunction with the person or persons who might for the time being hold under the said dean and chapter of Gloucester, the other share or shares of and in the said glebe and tithe, or, if the whole of the said glebe and tithe should, under that indenture, become vested in the said trustees, then alone, use his and their utmost endeavours to renew, upon reasonable terms, the then present or the then future lease of the said glebe and tithe which should be then subsisting, and in order thereto should, with and out of the rents, issues and profits of the said shares and share of and in the said glebe and tithe, or by mortgage or other disposition of the same shares or share, raise money sufficient to defray the expense of such renewal, and should apply the money so to be raised in or towards renewing such lease accordingly. And it was declared that, subject to the trusts thereinbefore declared, the said shares or share, and the rents and profits thereof, should remain and be upon the same trusts, intents and purposes as were thereinbefore declared concerning the other funds put in settlement; viz., upon trust for the said Anne Mary Foley, for her separate use for her life, and after her death upon trust for the said Richard Hodges, if he should survive her, for life, and after the deccase of the survivor, then upon trust for the issue of the marriage, as therein mentioned. The mother of the said Anne Mary Foley died in 1824, and the said Eliza Foley, the sister, died in 1843, without having been married. Mrs. Hodges died in 1850, leaving several children, who are still living. The trustees of the settlement from time to time obtained renewed leases of the glebe and tithe, it being the custom of the dean and chapter, although no covenant for renewal was contained in such leases, to grant renewals. These leases were renewed every seven years for a term of twenty-one years, upon the surrender of the old lease and payment of a fine. The last renewal was granted in 1850, upon which occasion the trustees paid a fine of 442/. 10s. out of the moneys in their hands retained by them for that purpose. 1857 the trustees had in their hands a sum of 300l., as a fund for the payment of the fine of the renewal, which they intended to apply for in that year, and they intended to set apart, out of the rents due at Michaelmas, such further sum as would, with the sum in hand, be sufficient to pay the expenses of renewal. In The said glebe and tithe had, however, then become vested, by virtue of a commission issued by King William the Fourth in 1835, and of different statutes, in the Ecclesiastical Commissioners. In Oct. 1857 the trustees, by letter, applied to them for a renewal of the lease upon the same terms as before, and were informed that it was contrary to the practice of the commissioners to grant renewals of beneficial leases of property of which the reversion was vested in them. The trustees have consequently been unable to effect a renewal. The present lease will expire at Michaelmas 1871. Notwithstanding the refusal of the commissioners to grant a renewed lease of the said glebe and tithe, the trustees have continued to retain divers sums out of the rents and profits of the property (the net amount of which is about 3054), and the whole fund in their hands is now represented by the sum of 7071. 1s. 9d. New Three per Cent. Annuities. The trustees being unable safely to deal with this fund, instituted this suit against Mr. Hodges and the children of the marriage, to have the rights of the parties in the said funds so set apart by them determined by the decree of the court. [ROLLS. for her separate use for her life, and after her decease in the "lifetime of her husband, unto such husband" for life, and then to the children, and, in default of children, as the daughter should appoint after the death of her husband, and in default of appointment "to the use of the husband, or his legal personal representative:" Held, to be confined to the husband of the daughter at the date of the will and death of the testator, and not to extend to a subsequent husband. Thomas Brooker, by his will, dated 1824, bequeathed the residue and remainder of his estate and efects, whether real or personal, unto his sons, Thomas Brooker, since deceased, the above-named defendant John Brooker, and William Sanders Sanders, therein called and written Willian Saunders, since deceased, upon trust to invest in the joint names of his said trustees, and of each of his five several daughters therein named as therein mentioned, the sum of 5001. of lawful British money. And the testator's said wil then proceeded as follows: "In the joint names of my trustees and my daughter Anne, now the wife of Robert King, the sum of 500l.; also in the joint names of my said trustees and my daughter Elizabeth, now the wite of Thomas Bray, the sum of 5004; also in the like names of my said trustees and my daughter Sarah, now the wife of John Budgeon, the sum of 5004; also in the like names of my said trustees and my daughter Mary, now the wife of William Stacey, the like sum of 5001.; also in the joint names of my said trustees and my daughter Amy, now the wife of Thomas Searles, the like sum of 500l., and that my said trustees do and shall stand and be possessed of the said five several sums of 500 each, and the dividends, interest and produce to arise therefrom respectively, upon trust from time to time to pay and apply the said interest, dividends and annual produce of the said several sums respectively unto each of my said several daughters," to and for her and their own sole and separate use respectively, for and during the term of the natural life of such daughters respectively, independent and excisive of her and their husband and husbands. And after the decease of each or any of my said daughters respectively, during the lifetime of her or their several or respective husbands leaving issue her or them surviving, then in trust to pay and apply the dividends of the sid several sums of 500% so standing in the joint names of them my said trustees and the names of such dughter or daughters respectively so dying in the lifetime of her or their respective husbands, unto such husband or hasbands for the term of his or their natural life or lives. And from and after the decease of the several husbands of each of my said daughters respectively, then upes trust that they my said trustees shall stand possessed of the dividends and produce of each of the said several sums of 500, in trust for the use of the children of each of my said daughters respectively, whensoever born, and either by the present or any future husband, Jan. 16.-The MASTER of the ROLLS, on the au- as therein mentioned. And further, in case of the thority of the case of Tardiff v. Robinson, by death of any or either of my said daughters respec which he felt himself bound, made an order tively without issue living at the time of their or her declaring that Richard Hodges, the tenant for decease, then that my said trustees shall stand and be life of the said leasehold premises, was entitled to the possessed of the said several sums or sum of 500 so portion of the rents and profits retained by the trus-standing in the joint names of my said trustees and tees to meet the expense of the fines and fees which such daughters or daughter so respectively dying with would have been payable on a renewal of the lease of out issue them or her surviving, to the use of such the said premises, if a renewal could have been ob-person or persons as such daughter or daughters retained, and ordered that the trustees should, out of the stock in their names, pay the costs of the suit, and transfer the residue to the said R. Hodges. Hingeston for the plaintiffs, the trustees. Lloyd, Q.C. and Faber, for the tenant for life, claimed the fund. They cited Colegrove v. Manby, 6 Madd. 72; Playters v. Abbott, 2 Myl. & K. 97; Earl of Shaftesbury v. Duke of Marlborough, 2 Myl. & K. 111; Lord Montford v. Lord Cadogan, 17 Ves. 485; 19 Ves. 634; Milsington v. Lord Mulgrave, 3 Mad. 491; Mortimer v. Watts, 14 Beav. 616. They also referred to a case of Tardiff v. Robinson, Reg. Lib. A. 1818, 498, as directly in favour of his claim. Webb and Osborne, for the children of the marriage, contra, argued that the fund ought to be invested and the dividends paid to the tenant for life for his life, and then the corpus divided among the children. The MASTER of the ROLLS expressed his opinion that this was the proper course, but that the case of Tardiff v. Robinson seemed to be an authority the other way; and he directed it to stand over for the inspection of this case. spectively shall, notwithstanding coverture, by their of The testator died on the 25th Aug. 1825. V.C. K.] LORD. COLVIN. [V.C. K. The testator's daughter Elizabeth was, at the date | nesses, leading to the supposition that, in their minds, of his will, and at the time of his death, the wife of the knowledge might be imputed to the parties without said Thomas Bray in the said will named. there being absolute direct personal knowledge upon the subject. All the evidence was read and commented upon, on behalf of the representatives of the widow and sons of the testator, and the court was urged to dispose of the question of homologation upon the testimony as it stood. Thomas Bray died on the 26th Dec. 1845, leaving his wife Elizabeth him surviving. There was issue of this marriage. The plaintiff Thomas Franks intermarried with the said Elizabeth Bray on the 24th May 1850. Mrs. Franks died on the 22nd Aug. 1856, leaving the plaintiff surviving her. By the 22 & 23 Vict. c. 63 (passed long since the institution of this suit), s. 1, it is enacted as follows: The trustee invested the sum of 500l. in the pur-"If in any action depending in any court within her chase of Bank Three per Cent. Annuities in the name of the said Elizabeth Bray, and paid the dividends thereof, as the same became due, to her during her life. The plaintiff filed this bill against the surviving trustee and the children of the first marriage, praying a declaration that he was entitled to receive the dividends of the said stock during his life. Majesty's dominions, it shall be the opinion of such court that it is necessary or expedient for the proper disposal of such action to ascertain the law applicable to the facts of the case, as administered in any other part of her Majesty's dominions, on any point on which the law of such other part of her Majesty's dominions is different from that in which the court is situate, it shall be competent to the court Lloyd, Q.C. and Villiers for the plaintiff, the in which such action may depend to direct a case second husband. Hardy for the trustees. R. Palmer, Q.C. and C. Hall for the defendants, the children by the first marriage: (Re Bryan's Trusts, 2 Sim. N. S. 103.) The MASTER of the ROLLS.-Upon reading this will, I have come to the conclusion, but not without some doubt, that the benefit of the gift is confined to the husband living at the date of the will. The direction with respect to separate use apparently does not extend to a future as well as to the present husband, and is a strong argument unfavourable to the plaintiff's case; but the subsequent direction in favour of the children by any present or future husband seems to be an argument in his favour. But on the other hand, the fact that the testator describes each of his daughters as now the wife of a particular person named, and then speaks of "her husband" in every case except where he directs a distribution of the fund amongst the children, when he uses the words by present or future husband seems to me adverse to the plaintiff's view. And this view is confirmed by the gifts to the legal personal representatives of the husband, implying that the testator intended to confine the gifts to the present husbands of his daughters, and their legal personal representatives. I shall follow the case of Bryan's Trusts, 2 Sim. N. S. 103, and declare that the gift is confined to the husband living at the date of the will and the death of the testator. V. C. KINDERSLEY'S COURT. Reported by H. R. YOUNG, Esq., Barrister-at-Law. Wednesday, Jan. 25. LORD v. COLVIN. 22 & 23 Vict. c. 63, ss. 1, 2, 5-Homologation-Case remitted to a Scotch court. to be prepared, setting forth the facts, as these may be ascertained by verdict of a jury, or other mode competent, or may be agreed upon by the parties, or settled by such person or persons as may have been appointed by the court for that purpose, in the event of the parties not agreeing, and upon such case being approved of by such court or judge thereof, they shall settle the questions of law arising out of the same on which they desire to have the opinion of another court, and shall pronounce an order remitting the same, together with the case, to the court in such other part of her Majesty's dominions, being one of the Superior Courts thereof, whose opinion is desired upon the law administered by them as applicable to the facts set forth in such case, and desiring them to pronounce their opinion on the questions submitted to them in the terms of the Act, and it shall be competent to any of the parties to the action to present a petition to the court whose opinion is to be obtained, praying such last-mentioned court to hear parties, or their counsel, and to pronounce their opinion thereon in terms of this Act, or to pronounce their opinion without hearing parties or counsel; and the court to which such petition shall be presented shall, if they think fit, appoint an early day for hearing parties or their counsel on such case, and shall thereafter pronounce their opinion upon the questions of law as administered by them, which are submitted to them by the court; and in order to their pronouncing such opinion, they shall be entitled to take such further procedure thereupon as to them shall seem proper." By sect. 2: "Upon such opinion being pronounced, a copy thereof, certified by an officer of such court, shall be given to each of the parties to the action by whom the same shall be required, and shall be deemed and held to contain a correct record of such opinion." or And by sect. 3: "In the construction of this Where a question arose in this suit upon the nature and Act the word 'action' shall include every judieffect of an homologation according to the law of cial proceeding instituted in any court, civil, crimiScotland, and the evidence on the question adduced nal ecclesiastical; and the words 'superior in the suit was contradictory, this court remitted a courts' shall include in England the Superior Courts case to Scotland, under the above statute, for the of Law at Westminster, the Lord Chancellor, opinion of the Scotch courts. the Lords Justices, the Master of the Rolls, or any Among the various questions which arose in the Vice-Chancellor, the judge of the Court of Admiralty, progress of this suit was one upon the nature and effect the judge ordinary of the Court for Divorce and Matriof an homologation according to the law of Scotland. monial Causes, and the judge of the Court of Probate ; Several advocates of the Scotch bar and other wit-in Scotland, the High Court of Justiciary and the nesses had been examined as to the law of homolo-Court of Session, acting by either of its divisions; in gation, and the evidence deduced from such examinations amounted to a voluminous mass. It was not, however, in all respects without some appearance of contradiction, for while the witnesses admitted that there could be no homologation unless there were personal and complete knowledge of all their rights on Anderson, Q.C. (E. F. Smith with him) appeared the part of the persons alleged to have homologated, for the representatives of the widow and sons of the there were expressions of opinion by some of the wit-testator. Ireland, the Superior Courts of Law at Dublin, the Master of the Rolls and the judge of the Admiralty Court; and in any other part of her Majesty's dominions, the Superior Courts of law or equity therein." Sir Hugh Cairns, Q.C., W. Morris and Jackson for parties in the same interest. Rolt, Q.C., Glasse, Q.C. and Welford, for Mr. and Mrs. Moorhouse, contended that the question of homo- | logation ought to be referred to a Scotch court, under the provisions of the above-mentioned Act. Baily, Q.C. (G. L. Russell and Roxburgh with him), for the next of kin, declined to argue the question. Anderson, Q.C. in reply. The VICE-CHANCELLOR (after observing that if, by devoting any time or trouble of his own to this question, he could decide it with any real chance of doing justice between the parties, he would do so) said, that the more he considered this question the more he felt as the Legislature had conferred upon the courts here the power of sending questions that depended upon the law as administered in other parts of her Majesty's dominions to the decision of the courts in those parts-that this particular question was one which ought to be so remitted. Before the passing of the Act he must have heard and determined this point of Scotch law; but he thought he might, and ought in this instance, to avail himself of the powers given by the Act. To do so would materially conduce to the justice of the case. He did not think the expense of remitting to the Scotch court a case which would be settled by him in chambers could be very great. He should not, of course, send the evidence, but as concise a statement of the facts as possible. In truth, the course adopted would be similar to that in use here, when this court sent a case to a court of law in this country. If, indeed, the evidence as it now stood was not sufficient, this court must obtain what further testimony was required for the purpose of the case. The evidence adduced before him appeared to be contradictory. England, if a person had knowledge of facts, knowledge of law was imputed, or implied; and knowledge of a man's solicitor was here considered as the knowledge of the client. Some of the witnesses examined said that was not so in Scotland. There was, therefore, a discrepancy in the evidence. But the real question at issue now, the nature and effect of an homologation according to the law of Scotland, was purely a Scotch question, and one which his Honour was of opinion could alone be properly decided by a Scotch tribunal All that the Act pointed out as necessary for the purpose, was the presenting of a petition to the Scotch court, asking that court to hear the parties, or their counsel, upon the case sent to them; and then the court was to give its opinion upon the case. His Honour therefore made an order, as directed by the Act, referring it to chambers to settle a case for the opinion of the Scotch court; and said, that the case, when settled, must be remitted to that court. Upon the return of the case with the opinion, his Honour would be able satisfactorily to dispose of the question. Friday, Feb. 10. Re HUTCHINSON'S WILL. In Practice-Trustee Relief Act-Petition by trustees Conduct of inquiry. The purpose of the Trustee Relief Act is to relieve trustees from responsibility after paying money into court, and to make them passive in the matter. Where therefore trustees paid money into court, and on the request of one of the cestuis que trust presented a petition for its distribution, and there were no special circumstances in the case, the petition was disapproved of, and the petitioners only allowed such costs as they would have had if they had been respondents. The petitioners prayed for an inquiry as to the testator's unascertained next of kin. The inquiry was in trusted to some of those next of kin who were ascerved, and appeared. e Hutchinson by his will left the residue of his due. [V.C. K. estate, after certain life-interests, to such persons as would be entitled thereto if he had died intestate. He died in 1830. The petitioners were the administrators de bonis non of the testator, and, as such administrators, they, on Dec. 19, 1859, paid 3300l. on account of the aforesaid residue into court under the Trustee Relief Act; stating in their affidavit that five persons therein named were some of the persons entitled to the resiThe petitioners also presented a petition, stating that they had been requested by the solicitor of Beatrice Rudgkin, one of the next of kin, so to da, and praying for an inquiry who were the persons entitled to the residue, and that it might be paid to the persons entitled. The petition was served on the persons named in the affidavit as next of kin on the same day on which notice of the money having been paid into court was served on them. A. Smith for the petitioners. Bowring, for some of the persons entitled, objected to the petition altogether. The trustees had no right to present such a petition; though all the persons entitled might not be known with certainty, several were known, and they ought to have been allowed time to present a petition if they chose: (Re Cazan's Legacy, 2 K. & J. 249.) Robinson and Dunn for other respondents. A. Smith in reply.-All the persons entitled were not ascertained, and it was the duty of the trustees to see the trusts properly executed. The trustees were the proper persons to make the inquiries, and to asecttain who were entitled. By that means the fund would be speedily distributed. Beatrice Rudgkin, one of the persons entitled, thought the trustees the proper petitioners. The VICE-CHANCELLOR.—I need hardly say that I concur in the justice of the observations which were made by the learned judge who decided Cazneau's case. It is clear that an executor or trustee may absolve himself from further liability by paying the money into court, and it is the duty of an executor or trustee paying money into court, so soon as he has paid it in, to give notice to the persons who are entitled in order that they may take such steps as they think right to obtain the money. And it is the duty of the trustee himself to abstain from presenting a petition unless there is some special ground for doing so. Primâ facie it is not his duty to take these funetions upon himself. Now, in this case, though these executors cannot be certain, any more than the cour can be judicially certain without inquiry, who will be the next of kin, or whether those who claim as next of kin may not be excluded by persons nearer, yet this appears clear, that the trustees believed that the persons would be next of kin would be the great nephews and nieces, and that there was nobody nearer of kin; and they knew of five or six constituting that class. According to the Trustee Relief Act, it was their daty to give notice to these persons, in order that they might take such steps as they might be advised for the purpose of getting the fund Instead of doing that, contemporaneously with the ser having vice of the petition was the notice of the money been paid into court, so that these persons were, of the act of the trustees, prevented from doing what they were intended by the Legislature to do. Then is there any special case here? First, it was said that the solicitor of one of these persons required the trustees to present a petition; but it seems that her soliciter is the same person as the solicitor to the trustees, so that there is not much in that reason. It appears to me that it is a great object to prevent anything like snatching the conduct of business of this sort in cases under this Act of Parliament. I do not mean that it has been so snatched in this case; but, as a general rule, could it be allowed that, contemporaneously with money being paid in, a petition should be presented by |