grant all due latitude in enforcing the exigencies of the statute; but it must remember that injustice may be done by deciding too readily in favour of a will as against it. The tendency of the Court is to establish a document in appearance properly executed, but it cannot uphold it in the face of direct evidence. The question is, whether the testatrix signed this paper, or acknowledged her signature to it, in the presence of two witnesses. They did not see her sign it; indeed, they did not see her at all, or hear her voice. All they knew about the matter was, that the landlady told them that there was a codicil that required their signature. I think the other point is equally plain, that the witnesses did not sign in the presence of the deceased. Whether they sign their names in the same room in which the testator is, or in a room opening out of it, it will be expected that both the testator and the witnesses shall be aware of one another's presence when the act is done. Nothing of the kind appears in this case. The paper is brought out of the sick room, and signed in a separate apartment, without any communication between the testatrix and the witnesses. I reject the motion.

DOWNWARD v. DICKINSON and Others.—Not. 3 on! Administration with will annexed-Assignee of resulsory legatee.

The executor named in the will of the deceased proved is same, but died without having distributed the wee estate. The Court decreed administration with the annexed, of the unadministered property, to the asi pr in bankruptcy of the residuary legatee.

Joseph Clune, late of Coalbrookdale, Shropshire, ta ber merchant, died on the 20th December, 1857, har made his will, and thereof appointed his brother Goo Clune and the Rev. Thomas George Mortimer La kock, clerk, executors and residuary legatees in tra and George Clune and Alice Clune residuary lega On the 28th February, 1860, probate was granted George Clune alone, power being reserved to ma similar grant to the other executor. George C died on the 1st October, 1863, a widower and tate, leaving Sarah Dickinson, the wife of Ha Cresswell Tayleur Dickinson, and six others, he tural and lawful children, the only persons entitl ministration have been taken of his effects. The estate of Joseph Clune had been administered in Court of Chancery, and a sum of 2841. 38. had tea found due to George Clune, as executor of J certificate, George Clune died. Clune; but before the chief clerk had completed On the 4th Mat 1862, George Clune was adjudicated a bankrupt George Downward was appointed assignee in ruptcy of his estate.

The deceased made the following bequest:-" My ward-distribution to his personal estate. No letters of robe, trinkets, and other things to my aunt. In the event of her decease before mine, then all my effects to her two daughters:"-Held, that, looking at the language of the will generally, these words did not constitute the aunt residuary legatee.

A mere direction to a legatee to pay the funeral expenses out of his legacy will not make him an executor according to the tenor of the will.

Eliza Smith, of Lupus-street, Pimlico, Middlesex, spinster, died on the 30th September, 1864, having duly executed a will, dated the 16th July, 1864, and a codicil, dated the 1st August, 1864. The will was, so far as it affected the question before the Court, as follows:-"This is to certify that I, Eliza Smith, on this 16th day of July, 1864, bequeath to John Townsend Smith, of 12, Down-street, Piccadilly, the sum of 501. Bank Stock, in the New 31. per Cents., out of which sum my funeral expenses are to be paid; also to Mrs. David Smith the jet shawl pin; also to my cousin, Mary Warner Smith, a brooch, the descent from the cross, and pearl ring; and to Eliza Katherine Smith everything else, viz. my gold watch, dressing-case, clothes, trinkets, as a token of gratitude to her for her unwearied kindness and sympathy shewn to me during my long illness." The codicil was as follows:-" Circumstances having taken a turn, the money remains to John as before; my wardrobe, trinkets, and other things to my aunt. In the event of her decease before mine, then all my effects to her wo daughters, Eliza Katherine Smith and Mary Warner Smith."

Spinks moved for administration with the will and codicil annexed, to Mrs. Cordelia Smith, the aunt, as the residuary legatee named in the codicil. He also called the Court's attention to the legacy to Mr. John Smith, out of which he was to pay the deceased's funeral expenses. This might be considered to constitute him an executor.

Sir J. P. WILDE.-A direction to a legatee to pay debts out of a particular fund, is not sufficient to make him executor according to the tenor of the will. A residuary clause ought to shew an intention to bequeath to the person indicated everything (not disposed of in the will) to which the testator might at

Wambey, on behalf of George Downward for administration with the will annexed, of the ministered effects of Joseph Clune, as represe of a creditor, the next of kin of George Clu... creditor, and one of the residuary legatees, hav been cited, and not appearing, the surviving exec and the second residuary legatee having renca probate and administration with the will annexed

Sir J. P. WILDE.-This is an application to gra administration to a creditor of the deceased. It pears that the deceased made a will, and thereof an pointed his brother executor and residuary legin On the death of Joseph Clune, his brother prov the will; but he subsequently became a bankrupt, George Downward was appointed his assignee. A the time of his bankruptcy, George Clune was doubtedly a creditor of the estate of Joseph C George Clune is, however, dead, and the present a plicant is his assignee in bankruptcy. The applica was made in the first instance, during the vacation the registrars, and they referred the matter t Court. There is a well-founded objection to mak a grant to the assignee of a creditor. In Bay Harrison (1 Deane, 15), Sir John Dodson refused allow a grant to issue to one to whom a debt had'. assigned after the death of the deceased, and expros an opinion it would be a very dangerous practice make such a grant. Such reasoning, however, not apply in this case where the assignee is art signee in bankruptcy. It is not necessary I s point out the difference of the two cases, beGeorge Clune was residuary legatee; and as as of the residuary legatee, I think Mr. Downwar clearly entitled to the grant.

The preamble was as follows:-"An Act for the further and better regulation of buildings and party walls, and for the more effectually preventing mischiefs by fire, within the cities of London and Westminster, and the liberties thereof, and other the parishes, precincts, and places within the weekly bills of mortality, the parishes of St. Mary-le-bone, Paddington, St. Pancras, and St. Luke at Chelsea, in the county of builders and other persons against the penalties to which Middlesex, and for indemnifying, under certain conditions, they are or may be liable for erecting buildings within the limits aforesaid contrary to law."

The premises were, in pursuance of the covenant atained in the lease, insured by the lessee in the iance Fire Insurance Office, for the sum of 10007., after the alteration of the premises above referred the lessee also effected a policy of insurance, dated 20th February, 1863, with the Phoenix Insurance ce, against loss or damage by fire, on the stock, nsils in trade, and fixtures in trade, gas, and other Sect. 83 enacts-" And in order to deter and hinder illngs, and goods in trust, i. e. goods of customers de-minded persons from wilfully setting their house or houses ted in the above-mentioned tavern and concert- or other buildings on fire, with a view of gaining to themn, in the amount of 350l.; on his household goods, a, printed books, wearing apparel, plate, watches, ets, and mathematical and musical instruments to extent of 150l.; on the concert-room itself to the nt of 3007.; and on the tavern and two adjoining es to the extent of 150l. This policy was effected he lessee in his own name, and so remained until ate of the bankruptcy.

selves the insurance money, whereby the lives and fortunes of many families may be lost or endangered; be it further enacted, by the authority aforesaid, that it shall and may be lawful to and for the respective governors or direcother buildings against loss by fire, and they are hereby autors of the several insurance offices for insuring houses or thorised and required, upon the request of any person or persons interested in, or entitled unto, any house or houses or other buildings which may hereafter be burnt down, dethe 2nd March, 1863, a fire occurred, by which molished, or damaged by fire, or upon any ground of suspiavern called The Hero, the music-hall or concert-cion that the owner or owners, occupier or occupiers, or other No. 516, VOL. X., NEW SERIES.

The learned commissioner held that the 83rd section was so limited, and that the insurance office was not bound to expend the money in reinstating the premises, and that the money, therefore, passed to the assignees and further, that the mortgagees had no right of proof against the estate.

The lessor and the mortgagees now appealed from the decision.

A further question was also raised, viz. whether so much of the insurance money as was payable in respect of fixtures was an insurance of "houses or other buildings," within the statute of Geo. 3.

F. Meadows White appeared in support of the appeal. He referred to the stat. 14 Geo. 3, c. 78, which he contended was not limited to the metropolis. No doubt the preamble so limited it, but that could not restrict the force of the enacting clause. Sect. 86 of the same statute had been held to apply to the whole realm. (See Filliter v. Phippard, 11 Q. B. 347). The mischief to be guarded against was general. A prior statute, the 12 Geo. 3, c. 73, s. 34, of which sect. 83 of stat. 14 Geo. 3. c. 78, was a re-enactment, contained the words "within the limits aforesaid," which were omitted in re-enacting the clause; that shewed an intention on the part of the Legislature to make the section general. [He also referred to the following authorities:-Richards v. Easto (15 M. & W. 251) and Simpson v. The Scottish Union (1 Hem. & Mil. 618).]

Holl, for the assignees, appeared in support of the commissioner's order.-Sect. 83 was clearly intended to be limited to the metropolis. In sect. 84, where the Legislature intended to make the section general, it had done so by express words. [He referred to Vernon v. Smith (5 B. & Al. 8); Amos on Fixtures, 321; Dumergue v. Rumsey (33 L. J., Ex., 88); and Poole's case (1 Salk. 368).]

White, in reply, upon the question of the fixtures.The words "house and buildings" meant a house with all its appurtenances. An equitable mortgage of leaseholds will carry all the fixtures. The statute cannot be held to extend to the mere carcase or shell of the building. [He referred to Gibson v. The Hammersmith Railway Company (32 L. J., Ch., 337); Walmsley v. Milne (7 C. B., N. S., 115); Ex parte Broadwood (1 M., D., & De G. 631); Re Ogden (3 Deac. & C. 765); and Leader v. Homewood (5 C. B., N. S., 546).]

LORD CHANCELLOR.-This case has been very ably and very fairly argued on both sides, and I am much obliged to the learned counsel for the assistance they have given me.

The first question depends upon the inquiry, whether the 83rd section of the 14 Geo. 3, c. 78, is of universal application, or whether it is to be limited to houses and buildings standing within the limit of what is commonly called the metropolitan district. Now, it is material to observe, that this 83rd section is not re-enacted as an integral part of the

person or persons who shall have insured such house or houses, or other buildings, have been guilty of fraud, or of wilfully setting their house or houses or other buildings on fire, to cause the insurance money to be laid out and expended, as far as the same will go, towards rebuilding, reinstating, or repairing such house or houses or other buildings so burnt down, demolished, or damaged by fire, unless the party or parties claiming such insurance money shall, within sixty days next after his, her, or their claim is adjusted, give a sufficient security to the governors or directors of the insurance office where such house or houses or other buildings are insured, that the same insurance money shall be laid out and expended as aforesaid, or unless the said insurance money shall be, in that time, settled and disposed of to and amongst all the contending parties to the satisfaction and approbation of such governors or directors of such insurance office respectively."

Metropolitan Building Act; but whereas the Metro-
politan Building Act, 7 & 8 Vict. c. 83, s. 84, repeals
the former act, it excepts and takes out of the opers-
tion of that repeal certain sections of the previous act,
and among them the 83rd. The 83rd section, there-
fore, remains in all its integrity by virtue of that a
This is material, because power is given by the Met
politan Building Act to apply it to other districts than
the metropolitan district, which power, as far as I
am aware, has not been exercised with regard to the
district in which this house is situated, and conse
quently, where a house falls within the description of
a house, within the meaning of the statute of the 14
Geo. 3, c. 83, it must be by fofce of that particular
enactment taken by itself. Now, it is material to ob-
serve the construction of the statute of the 14 Gea. 3
There is a preamble affixed to the whole statute,
which is limited and defined, or rather which limi
the applicability of the statute within certain bel
boundaries; and the sections which precede the d
are almost all of them found to contain enactmen
which are carefully worded, to extend and be extended
only to the districts within the limits defined in the
preamble. Almost every section contains the wond,
"within the limits aforesaid;" but when we appro
the 83rd section, we find, in the first place, that the
enactment therein contained is heralded by a part-
cular preamble of its own, which preamble recites a
general and universal evil as being the occasion of i
passing. I think, therefore, the just conclusion is, that
this enactment is intended to be general-is intended
to meet a general, and not a local, evil; and therefore,
to any argument derived from the general prese
to the statute, I oppose the particular preamble to
the section, which special preamble refers to
versal evil as the reason for that enactment. We
should be prepared, therefore, to infer from the state-
ment of a general evil which the Legislature was de
sirous to redress, this consequence-that the enact
ment would, in fact, be co-extensive with the
stated to have been intended to be redressed; and
that general inference is confirmed by the language f
the enactment itself, which is in itself general, and does
not contain the words "within the limits aforesaid
These words are evidently omitted, and omitted d
signedly. I find, therefore, in the language of the
particular section, enough to enable me to arrive
the conclusion, that it is intended to be general
universal-that language being taken in connexion
with what goes before. An argument was raise
by counsel on the other side, who called my
tention to the fact, that sect. 84 expressly contains
the words, "whether within the limits aforesaid,
elsewhere within the kingdom of Great Britain
and he derives this argument from the insertin
of these words, that the Legislature has used the
in this section to denote its intention to make the
application universal here, but not in the 83rd secti
But in answer to that, I say, that if the 83rd section
contains in itself quite enough to shew that it ough
to be taken to be universal, just as much as if it h
in it the words, "whether within the limits aforesa
or elsewhere," the clause will not lose that effect be
cause these words are found in a subsequent section
If the 83rd section has ingredients enough to ascerta
its universality, it will not lose that universality
not possessing within itself a particular form of wo
which was not needed for the purpose of making
universal, although that particular form of words is
in a pleonastic form of expression, found to be cus
tained in a subsequent section. The subsequent se
tion, the 84th, has independent general words as well
as the 83rd. It is impossible to apply this rule to the
construction of an act of Parliament-that we

The

a form of words is found to be of universal application, that form is to lose its universality, because it does not happen to contain certain redundant words which are to be found in another section. This conclusion, however, I need not labour, as it has been, I think, settled already in the case of Filliter v. Phippard (11 Q. B. 347), although the decision in that case does not necessarily involve the construction of the 83rd section. I am, therefore, clear, that the 83rd section is applicable to this case, and that the insurance money upon this particular house ought to be, and must be, applied to reinstating the premises. Then arises a very important and somewhat difficult point, with reference to the insurance money payable in respect of fixtures. The demise of this public house to the lessee was accompanied by a covenant on the part of the lessee, that he would leave upon the premises the fixtures put up by him during the term. The covenant would relate only to those fixtures which might be found upon the premises upon the determination of he term. Now, the term is so created as to deternine, either by expiration of time or by a particular went, namely, the bankruptcy of the lessee. acts are these-that, pending the lease, the tenant ot only insured in the manner to which I have aleady adverted, but he effected a separate and distinct nsurance upon the fixtures. A fire took place whilst he lease was subsisting, and the fixtures then upon he premises were destroyed. Now, the act of Parament which we have to construe only applies to surance money, and losses with respect to houses nd buildings; and the extent of these words, "houses ad buildings," may be somewhat collected from the st of the section, which gives to the insurers the ght, and puts them under the obligation, of applying le money in the "rebuilding, reinstating, or repairg" of "houses or other buildings." The question, erefore, comes to this-when this fire happened, were ie fixtures in such a state in the view of the law, as, at if the lessor had made a conveyance of the freeold, and the deed had used only such parcels as lese, "all those houses and buildings," would the fixres in question have passed under that conveyance? ow, these fixtures were trade fixtures. That, though ot distinctly found in the case, has been very fairly dmitted by Mr. White, who appears for the lessor nd the mortgagees. The fixtures, therefore, would, y the ordinary rule, have been removable by the enant at the time when the fire took place. The nly mode in which the right to their removal could ave been affected was by the operation of the coveant of the tenant himself. But the tenant had coenanted to deliver up the premises, with the fixtures, pon the determination of the lease. The lessor, thereore, had a right-a contingent future right-that ould arise to him by virtue of a present contract, to he possession of these fixtures; and inasmuch as the wnership of the fixtures at the time when the event appened which gave rise to the intervention of the ower contained in the statute remained in the lessee, he right of the lessor at that time was a personal ight depending upon contract, and not a real right lepending upon ownership. I am, therefore, of opion, that if at the moment before the destruction ook place the lessor had made a conveyance of the house, the fixtures in question would not have passed as being a member thereof, or appurtenant thereto. If that be the case, I am of opinion that this insurance money does not fall within the operation of the 3rd section, but that it has constantly remained the personal property of the lessee, and therefore passes to the assignees. Nothing has been brought before me to shew that any particular right has passed to the mortgagees in this case. All I have to determine is

whether these fixtures would pass under the description of "houses and buildings"-whether they fall within the words "houses or other buildings," so as that money for their insurance would fall within the operation of the 83rd section, as money for the insurance of houses and buildings would fall within it. For the reasons I have stated, although the matter requires rather refined distinctions, I am of opinion that the fixtures did not form part of the freehold in the sense of being an integral part of the house at the time when the fire took place; therefore, that they do not come within the operation of the 83rd section; and, consequently, that the money belongs to the assignces. Costs of all parties out of the estate. Notes for reference-Amos on Fixtures, 321; 11 Jarm. & Byth. Conv. (by Sweet), 426.

TATHAM V. DRUMMOND.-July 16 and Nov. 15. Will-Construction-Charity-Mortmain. In a bequest of money to a society, to be applied towards the establishment, in the neighbourhood of London or Westminster, of slaughter-houses, away from the densely populated places, it was held, that the bequest was not void, within the Statute of Mortmain, as the gift did not necessarily require the money to be laid out in land. On appeal, the decision reported (unte, p. 557) was reversed.

The word " establishment" involved the idea of putting the charity on a permanent footing, and pointed to the purchase of sites of land, and the erection of permanent buildings.

In ascertaining whether a bequest is in contravention of the Statute of Mortmain, the prevailing intention of the testator should first be ascertained, and the Court will not resort to a different mode of administration from that indicated by the testator for the purpose of escaping from the operation of the statute.

This was an appeal from a decision of Sir W. P. Wood, V. C.

The will of the Vicountess D'Alte, the testatrix in the cause, contained the bequest of a sum of 20,000l. Consols unto the treasurer for the time being of the society called or known by the name of the Royal Society for the Prevention of Cruelty to Animals, to be applied in such manner as the society should think best towards the establishment in the neighbourhood of London or Westminster, of slaughter-houses, away from the densely populated places in which they were then situate, and for the relief of, and protection from, cruelty to the animals taken to be slaughtered.

The Vice-Chancellor was of opinion, that as there was a reasonable and proper way of carrying out the trust without erecting buildings, the bequest was not void under the Statute of Mortmain. The facts will be found fully detailed in the report of the case in the court below. The present appeal was brought by the residuary legatee under the will.

Rolt, Q. C., and Cotton appeared for the appellant.
W. M. James, Q. C., and Wickens, for the plaintiff.
Giffard, Q. C., and Swanston, for the Royal Society.
Goren, for the executors.

Rolt, in reply.

The following authorities were referred to:-The Attorney-General v. Williams (3 Cox, 307); The Attorney-General v. Hull (9 Hare, 647); The University of London v. Yarrow (1 De G. & J. 72); Blandford v. Thackerell (2 Ves. jun. 240); Edwards v. Hall (11 Hare, 1; S. C., 17 Jur. 593; on app., 1 Jur., N. S., 1189); The Attorney-General v. Davies (9 Ves. 535); The Church Building Society v. Barlow (3 De G., Mac., & G. 120); Carter v. Green (3 Kay & J. 591); Sorresly

v. Hollins (Amb. 216; S. C., 9 Mod. 221); Vaughan v. | houses in a more removed situation, and so from time Farrer (2 Ves. sen. 182); Johnston v. Swan (3 Mad. to time. 457); Crafton v. Frith (15 Jur. 737); and Philpott v. St. George's Hospital (6 H. L. C. 338).

His Honor observes, that when the slaughter-houses are erected, there will be no means of compelling the public to use them; but this, again, is an objection to the prudence of the gift, and cannot affect the interpretation of the words. There are many cases on this subject, and some of them are not easily to be rea ofciled with others; but I think there would not bre been so much difficulty if the plain rule I have stried had been always adhered to.