[Court of Probate] THE JURIST.-REPORTS. [Court of Probate.] 51 of the cases which were cited with reference to arbi. | 1863. On the 14th August, 1858, he wrote a testatrations struck me with much force, except the case mentary paper, which commenced, In the prospect ev. Price. My Brother Crompton there says, of a long journey, should God not permit me to rethat he is disposed to think that the appearance of the turn to my home, I, William Cawthron, senior, make party there did not waive the objection, the objection this my last will and testament." And concluded, being that the arbitrator was assuming to himself ju"Witness my hand, this 14th day of August, 1858. risdiction over a subject-matter which the parties "WILLIAM CAWTHRON, never agreed to submit to him; and he also says, that Bridgeland-street, Devon." no case had been cited in which the appearance of the At the end of August, 1858, the deceased, accomparty under protest had been held to waive a substan- panied by his wife, left home on a journey to Shrewstial objection; and he was disposed to think it had not bury, and returned from thence to Bideford on or been waived in that case. But the judgment of the about the 25th September, 1858. On the 17th FebCourt did not proceed even upon that, but upon this, ruary, 1859, the deceased, being very ill in bed, reVi that the declaration was upon the express sub-quested Mr. Smale to make certain alterations in the mission of the parties, and not upon an implied submission arising from the acts of either of the parties during the course of the reference; and so the evident quiescence was not applicable to the allegation in the declaration. But I must say that I should have been surprised if any case could have been adduced to Bastain the defendants in this objection; because it appears to me to be a contradiction in terms to say, that having protested that there was no jurisdiction in the arbitrator, the party is not merely to attend, and to watch, but is to call witnesses, and to submit his case to the judgment of the party, and that then, if the award be against him, he may set it aside; but if in his favour, he shall be permitted to maintain it. Entirely agreeing with the views expressed by my Brother Byles, I think the objection on the part of the defendants cannot be sustained, and that the plaintiff is entitled to our judgment. If he is entitled to our judgment, then the question comes, whether we are to grant the mandamus. Now, I think, notwithstanding the ingenious argument of Mr. Lush, that the board may be so well provided with funds that it does not necessarily follow that they are obliged to make a rate; that, practically, the only remedy this party has is by a mandamus to the board to make a rate. If they pay him out of funds without making a rate, and we should ever hear of it again, in that event we probably should be disposed to endeavour to discover a possible construction in favour of that being a discharge in obedience to the mandamus on the part of the board of health. With reference to the operation of the 89th section of the Board of Health Act, as a law which was also referred to by Mr. Lush, with regard to the question as to the six months' limit of time. it seems to me that the time we are to look to is the period which has elapsed between making the award and the issue of the writ, and therefore the obsection founded on the terms of the 89th section must fail. For these reasons, and those stated by my Brother Byles, our judgment must be for the plaintiff, both upon the questions referred and the mandamus. —Judgment for plaintiff. paper above referred to, and particularly to strike out and correct the date thereto. After he had done so, Mr. Cawthron acknowledged his signature, as previously written at the foot of the will, by tracing it over with a dry pen in the presence of Dr. Ackland and Mr. Smale, who thereupon signed their names as witnesses. Mrs. Cawthron stated in her affidavit, that in February, 1859, the deceased was not contemplating any journey whatever, and that she is convinced that when he executed the will he intended it should operate absolutely. COURT OF PROBATE. In the Goods of WILLIAM CAWTHRON, Deceased.— Middleton moved for probate to be granted to the son, William Cawthorn, and Louisa List, the executors therein named. As the will was not executed until after the event had happened upon which the condition depended, the deceased must have intended it should operate absolutely. [He cited In the Goods of Hobson (7 Jur., N. S., 1208) and Roberts v. Roberts (2 Swab. & T. 337; 8 Jur., N. S., 220).] Sir J. P. WILDE.-I think this will must be admitted to probate. At the time the deceased set off on his journey the will was not executed, and if he had died at that time he would have died intestate. The will had no force at all until after the deceased had returned home, and its validity cannot be affected by that event. MITCHELL v. GARD and KINGWILL.-Nov. 24 and Dec. 11. Testamentary suit-Unsuccessful party-Costs. The defendants propounded the will of the deceased, and the plaintiff pleaded undue execution, incapacity, undue influence, and that the paper propounded was not the will of the deceased. Ultimately a verdict was entered for the defendants on all these pleas, and the will was pronounced to be valid. On the question of costs-Held, that if in a testamentary suit the cause of litigation takes its origin in the fault of the testator, or of those interested in the residue, the costs will properly be paid out of the estate. Held, also, that if there be sufficient and reasonable grounds, looking to the knowledge and means of knowledge of the opposing party, to question either the execution of the will or the capacity of the testator, or to put forward a charge of undue influence or fraud, the losing party may properly be relieved from the costs of his successful opponent. Will-Conditional-Execution after event. The defendants John Metherell Gard and John The ceased wrote and signed a testamentary paper, which of Mary Gregory, of Devonport, Devonshire, widow. Marshall Kingwill, as executors, propounded the will enced," In the prospect of a long journey, should Sarah Stribley Mitchell, wife of George Mitchell, as dat permit me to return to my home, I make this next of kin, pleaded that the will was not executed in last will and testament." The deceased mode the accordance with the provisions of the stat. 1 Vict. c. 26; jarney and returned home, and subsequently executed that the testatrix, Mary Gregory, was not of sound this paper, by acknowledging his signature in the pre-mind at the time it was executed; that the paper proece of witnesses: -Held, that the event having pounded was not the will of the deceased, and that it happened before the will was executed, it ceased to be conditional, and must be admitted to probate. William Cawthron, late of Bridgeland-street, Bideford, Devonshire, gentleman, died on the 19th March, was obtained from Mary Gregory by the undue inand these several questions were tried at Exeter on fluence of John Metherell Gard. Issue was joined, the 16th March, 1863, before Byles, J., and a special jury. A verdict was found in favour of the defendants on the first, second, and fourth issues; and after much argument it was entered for the plaintiff on the third issue; but the learned judge gave leave to the defendants to move the Court of Probate to enter it for them on such third issue also, if the evidence did not support the plea that the paper propounded was not the will of the deceased. This question came on for argument before the late Sir C. Cresswell, on the 15th May last (see ante, p. 673), and he determined that the paper propounded was the will of Mrs. Gregory, and ordered the probate to be delivered out to the executors. Nov. 24.-Karslake, Q. C., and H. T. Cole, now applied to the Court to order Mrs. Mitchell's costs to be paid out of the estate. The Solicitor-General, Wambey, and Lopes, for the executors, asked that she should be condemned in the costs. Sir J. P. WILDE.—This was a testamentary suit. After a long and careful trial, conducted before Mr. Justice Byles at the assizes for the county of Devon, the will was here pronounced for, and admitted to probate. The Court is now asked by the plaintiff that her costs may be allowed out of the estate, and by the defendants that the plaintiff may be condemned in costs. These questions of costs are addressed to the discretion of the Court. It is hardly in the nature of discretion that its exercise should be adjusted by exact rule. No positive regulation could be established that would bear the strain put upon it by the justice or hardship of particular instances. But when all is not possible, something may yet be done. By acknowledged method and general classification, the suitor may, in some measure, be enabled to estimate the prospects before him, and foresee the penalties under which he launches into litigation. To this extent it is the duty of the Court, so far as may be, to assist him. The basis of all rule on this subject should rest upon the degree of blame to be imputed to the respective parties, and the question, who shall bear the costs, will be answered with this other question, whose fault was it that they were incurred? If the fault lies at the door of the testator, his testamentary papers being surrounded with confusion or uncertainty in law or fact, it is just that the costs of ascertaining his will should be defrayed by his estate. If the party supporting the will has such an interest under it that the costs, if thrown upon the estate, will fall upon him, and he, by his own improper conduct, has induced a litigation which the Court considers reasonable, it is not unjust that the estate should bear the costs of the litigation which his conduct has caused. But if the testator be not in fault, and those benefited by the will not to blame, to whom is the litigation to be attributed? In the litigation entertained in other courts, the question is in general easily solved, by the presumption that the losing party must needs be in the wrong, and if in the wrong, the cause of a needless contest. But other considerations arise in this court. It is the function of this Court to investigate the execution of a will, and the capacity of the maker of it, and having done so, to ascertain and declare what is the will of the testator. If fair circumstances of doubt or suspicion arise to obscure the question, a judicial inquiry is in a manner forced upon us. Those who are instrumental in bringing about and subserving this inquiry are not wholly in the wrong, even if they do not succeed. Hence it is, that this Court has been in the practice on such occasions of deviating from the common rule in other courts, and of relieving the losing party from costs, if chargeable with no other blame than that of having failed in a suit which was justified by good and sufficient grounds of doubt. There is still a further class of cases. I speak of t in which, beyond the question of the will or the pacity of the testator, the opposing party takes himself to question the conduct or the good fai others, and place on the record pleas of undu fluence or fraud. These are affirmative charges. ought not to be made except upon some appar very sufficient grounds; but though they may, an differ largely in the degree of probability or susp to be demanded for their justification, it is not to say that they differ in nature from pleas der execution or capacity. Both classes of defence addressed to the same question, what was the w the testator? and both within the scope of the su intrusted to the vigilance of the Court. Here therefore, it seems just and meet, if the circumst of the case have rendered the inquiry a proper that neither party should be condemned in costs. 1 these considerations the Court deduces the two lowing rules for its future guidance :-First, is cause of litigation takes its origin in the fault of testator, or of those interested in the residue, the may properly be paid out of the estate. Second there be sufficient and reasonable grounds, lookin the knowledge, and means of knowledge, of the posing party, to question either the execution of will or the capacity of the testator, or to put for a charge of undue influence or fraud, the losing may properly be relieved from the costs of his suc ful opponent. I am aware there are many cas be found in which costs have been granted out of estate, under circumstances different from those w I have predicated. I am aware also, that in cases a less liberal view than I have taken of the duct of parties pleading undue influence and fi has prevailed. But there are cases to be found p ing both ways. I have sought in vain in the aut ties of the Prerogative Court, and especially in reports of the Judicial Committee of the I Council, for anything like a general classificatio rule. Sir C. Cresswell had to make the same fession in the case of Broadbent v. Hughes (29 Prob., 134). I have also considered the cases ported in this court. They will be found collecte a most useful and compendious note to the cas Summerell v. Clements (32 L. J., Prob., 134), but hard to extract a general rule. It is of high p importance that doubtful wills should not passe into proof by reason of the cost of opposing them is of equal importance that parties should no tempted into fruitless litigation by the knowledge their costs will be defrayed by others. These site reasons appear to have alternately swayed th cisions to be found in the books. It is the desi the Court to keep both in view while yieldin neither, and it is in this spirit that the above have recommended themselves. Of the present in its facts, little need be said. I have carefully the learned judge's notes, and fully conferred wit learned judge himself, by whose opinion I am str fortified in the decision I am about to prono The Court considers that Mr. Gard, to whom the of the property of the testatrix was bequeathed will made by himself, a professional man, guilty of improper conduct in the transaction, particularly so in knowingly omitting from the legacies which he knew (for so the jury found) the testatrix had ordered, and still desired, but w escaped her memory at the time the will was exec This conduct, and the suspicions which flowed fro gave the next of kin a fair and reasonable groun litigation. The Court, therefore, orders that the of the plaintiff be paid out of the estate. has COURT OF CHANCERY. NESBITT. BERRIDGE.-Nov. 14 and 16. sentative had no right to redeem the substituted policy. But this was too narrow a ground of decision. Nesbitt, in his lifetime, and the representative of Mortgage-Policies of insurance - Substituted policy-Nesbitt now, had a right to claim the benefit of what Right to proceeds. ▲ mortgage transaction comprised two policies of in This was an appeal from part of a decree of the Master of the Rolls, made in a suit instituted by J. R. Nesbitt, since deceased, to set aside the sale of certain interests to which he was entitled under the will of his father. The case is reported in 9 Jur., N. S., 1044, where the facts of the case will be found. Seirg, QC, and Birkbeck appeared for the appellant. Hehouse, QC, and Dickinson, for the respondents, Mr. and Mrs. Berridge. Birkbeck, in reply. The following authorities were referred to:- Walford v. Pemberton (13 Sim. 441) and Ranger v. The Great Western Railway Company (Id. 368). a ever had been done with respect to the equity of reNesbitt. He, therefore, was entitled to redeem the demption, he being admitted to the original right of substituted policy, in the same way as he could have redeemed the original policies. That part, therefore, of the decree of the Master of the Rolls must be reversed; and there would be a declaration that the policy for 12007. was part of the equity of redemption, and belonged to the representative of Nesbitt, by reason of the assignment of the equity of redemption having been declared invalid. That portion of the decree which dismissed the supplemental bill, with costs, must consequently be reversed; but, inasmuch as Kisch, Cave, and Bunyard had been improperly made parties to that suit, and improper charges had been introduced, that part of the decree which gave special directions as to costs, must also be varied. No costs could be given to the plaintiff. ROBINSON. SHEPHERD.-Dec. 17. Will-Construction-" Per stirpes and not per capita." A testator, by his will, bequeathed the proceeds of the sale of certain hereditaments, in equal shares, among and to the lawful descendants living at the time of his death, of such of the brothers and sisters of his late grandfather as had died leaving lawful descendants; such descendants respectively to be entitled to share the same monies in a course of distribution, per stirpes and not per capita:-Held, that the property was divisible into as many shares as there were stirpes or families of descendants living at the death of the testator. THE LORD CHANCELLOR said, that it had been clearly shewn that the reversionary interest had been sold at an undervalue, and therefore the counsel of the defendants had exercised a wise discretion in not attempting to disturb that part of the decree setting aside the sale. The remaining question was the right of the plaintiff in the supplemental suit, as the representative of Nesbitt, the mortgagor, to the policy for 12001. The Griginal transactions were mortgages of the life interest of Nesbitt to Miss Jackson. These mortgages contained covenants to pay the premiums on the two policies effected for 7001. and 2007.; and further provided, that in default of payment, and if Miss Jackson should enter into the receipt of the dividends of the Consols, it should be competent to her to retain the premiums, and to keep up the policies. It appeared that she had kept up the policies till the transfer to Banyard, who was a sub-purchaser from Kisch; and, in right of that equity of redemption, first effected new policy for 12001, and then applied to Miss Jackson to permit this policy to be substituted for the original two. This he did in his supposed right as assignee. Miss Jackson assented, and agreed that the policy father, Henry Pearson, had two sisters and one brother, should take place of the two original policies, and be all deceased. The brother had no issue. The sisters saletituted for them; and thus the policy for 12007. both married, and had descendants to four or five gebecame, ipso facto, subject to the same equity of re-nerations; and, at the time of the death of the tesdemption as the antecedent policies. But the equity tator, there were no children living of either of the of redemption was still the property of Nesbitt, for sisters, but grandchildren of both, and a great grandnothing in equity had passed to Bunyard. Whatever, son of one of them. Elizabeth Pearson, the testator's therefore, was done by Bunyard, must be taken as grandmother, had five brothers and one sister. At the having been done for and on behalf of the real owner testator's death there were descendants living of two of the equity of redemption, and the new policy be- of the brothers and of the sister. Of the elder brother came imposed with a trust for the real owner of the there were living a son, grandson, and two great grandequity of redemption. The Master of the Rolls con- children. Of the second brother, grandchildren only. sidering that rights and duties were correlative, had of the sister, a daughter and two grandchildren. The concluded, that as Miss Jackson was under no obliga- number of issue of the brothers and sisters of the tion to keep up the original policy, Nesbitt's repre-grandfather and grandmother amounted to at least This was an appeal from a decision of Sir J. Romilly, M. R., upon the construction of the will of John Pearson Spedding. The testator bequeathed as follows:-As to the proceeds of the sale of certain hereditaments (A.), upon trust to divide and pay the said last-mentioned sale monies, "in equal shares, among and to the lawful descendants living at the time of my death, of such of the brothers and sisters of my late grandfather, Henry Pearson, deceased, as have died leaving lawful descendants; such descendants respectively to be entitled to share the same monies in a course of distribution, per stirpes and not per capita." The testator further bequeathed the proceeds of the sale of estate (B.), “in equal shares, among and to the lawful descendants living at the time of my death, of such of the brothers and sisters respectively of my said late grandfather, Henry Pearson, and of my said late grandmother, Elizabeth Pearson, as have died leaving lawful descendants; such descendants respectively to be entitled to share the same monies in a course of distribution, per stirpes and not per capita." The testator died on the 5th June, 1862. His grand No. 472, VOL. X., New Series. c 150. The bill was filed by the trustees of the will, praying to have the rights of the parties declared. The Master of the Rolls held, that the property was to be divided into two shares in respect of the two sisters, and then that the whole line of descendants of either sister were to take per capita, irrespective of their various degrees. Giffard, Q. C., and Speed appeared for John Docker, a grandson (with living descendants) of one of the sisters. They referred to Rowland v. Gorsuch (2 Cox, 187); Dick v. Lacy (8 Beav. 214); and Pearson v. Stephen (5 Bligh., N. S., 203; 2 Dow & C. 328). Baggallay, Q. C., and E. Lloyd appeared for Henry Jackson and Jane Ellwood, children (who had children living) of a brother and sister of the grandmother. Hobhouse, Q. C., appeared for defendants who were descendants, having parents and grandparents living. Fry appeared for John Shepherd, a great grandson of one of the two sisters of the grandfather, who had a mother living. Fischer appeared for Margaret Shepherd, the mother of the last-mentioned defendant. W. Brodrick appeared for the trustees. LORD CHANCELLOR.-The construction of this will appears to me to depend upon the question to whom the expression "per stirpes" is to be applied. There can be no doubt, I think, upon the language of the will, that the persons who are to be classed secundum stirpes are descendants. The descendants are to be arranged "according to the stocks" from which they have descended, and they are to be arranged among one another. The arrangement per stirpes, therefore, to the exclusion of individual arrangement, implies this-that out of the whole body of descendants some are to be selected as being the stirpes of the rest. It is plain, therefore, that the words "per stirpes" are intended by the testator as a limitation of the universality of the word "descendants." the stirpes or families of all the descendants who are found to be alive at the death of the testator, being descendants from such of the brothers and sisters of the testator's grandfather as died leaving issue; and it being a legacy to stirpes, and not to individuals, I have only to inquire how many separate and distinct families there are in the whole body of descendants. I then arrange the descendants respectively under the families from which they have sprung, and I take the head of each family as being a stirps-i. e. a root or stock, and I hold him to be entitled as the legatee. I direct this fund to be divided amongst the families of descendants of such of the brothers and sisters of the testator's grandfather as may have died leaving issue into which these descendants admit of being divided and distributed at the time of the testator's death. The words "equal shares" only imply how they are to take, and do not affect the rule of ascertainment; they only imply that each stirps is to have an equal share with every other stirps. Not only is that clearly the interpretation, but I think the word "stirps" will go further. Suppose at the death of the testator there had been, not only some grandchildren of the two sisters, but also great grandchildren of some of the sisters, being children of grandchildren who had predeceased the testator; then these grandchildren would certainly have taken as representing families or stirpes. Applying the same rule to the great grandchildren, there might be children of grandchildren taking per stirpes, to the exclusion of their own children. The rule runs throughout the whole, it being this-that you are to take the father or parent as the person who is to take the share, as embodying in himself all those descendants who are his own immediate issue. I think if I were to divide the fund into as many shares as there were brothers and sisters of the grandfather who had left issue living at the testator's death, I should be doing great violence to the testator's language. The fund would thus be divided into two parts; and I think this process would certainly have been effected by other words, if such had been the testator's intention. I have arrived at a different conclusion in this respect from the Master of the Rolls; and I feel myself obliged to decree, that this property is divisible into as many shares as there are stirpes or families of descendants living at the death of the testator. The expression "secundum stirpes" would be more strictly correct than "per stirpes." The declaration will be, that the words "per stirpes and not per capita," used by the testator, are applicable to the descendants, who are to be classified according to families; and the property in question is to be divided into as many shares as there are stirpes or families, each stirps or family taking an equal share. Let the descendants be classified according to stirpes, and then let there be a division into families, according to the actual facts; and for the purpose of ascertaining the various stirpes, let inquiries be directed. The Master of the Rolls has applied the words "per stirpes" as denoting the sisters from whom these persons originally take. But it must be recollected that the gift is to the descendants as purchasers. The will does not contain a gift of a division of the testator's estate into as many families as there might be brothers and sisters of his grandfather who had died leaving issue; but the will is a division among the descendants themselves, taking as purchasers, taking as simple legatees-these descendants, however, being arranged, inter se, according to the principle of families, and not according to the principle of individuals. My answer, therefore, to the question, to whom do the words " per stirpes" refer, is, that they refer to the descendants. And what rule does the expression then give? It gives the rule of selection. But according to what principle? According to the principle of the stocks which are found amongst these descendants. But stocks of descendants may be few as compared with individuals, because there may be a grandson of a brother or sister who himself has children or grandchildren. But persons in the relation of children or grandchildren will THE EARL OF PORTARLINGTON v. DAMER.-Nov. 16| be included in the word "descendants," the father being preferred. The father, therefore, is taken as the legatee, inasmuch as the legacy is given to stirpes, and is not a legacy to individuals. But then the word "respectively" does not at all alter that, because the word respectively" only imports this-that all are to be taken, and then arranged according to the respective relation they bear to the stirps from which they sprung, and who is the legatee. The word " respectively," therefore, is properly used as referring the descendants to the stocks from which they sprung. Upon a proper interpretation, the legacy is a gift to Note for reference-2 Jarm. Wills, 489. and Dec. 21. Will-Construction-Charge of legacies-Priority. A testator, by his will, made in 1844, devised his freehold property, called the Roscrea Estate, in Ireland, unto G. L. D. in tail male, subject nevertheless, and charged and chargeable, with the payment of certain annuities therein mentioned. The testator then directed that the residue of his estates thereinafter devised should be considered and made the primary fund for the payment of his debts, and the several legacies given by his will, and that his "Roscrea estate thereinbefore devised, subjec Jan. 23,7 [Chancery.] turned out to be the case. THE JURIST.-REPORTS. as aforesaid, to the said G. L. D., and the heirs male of his body," should not be subject or liable to the pay of the said debts and legacies, unless the residue of his estates should prove of insuficient value, which The testator further devised the residue of his real estates, all situate in Ireland, to trustees, in trust for sale, and out of the proceeds thereof he directed the payment of the legacies given by his will, and every legacy to be given by any codicil thereto, unless a contrary direction should be expressed in such codicil. By a codicil made in 1845, the testator gave an annuity to E. W. B. for her life, to be raised out of his estates in Ireland.” The residue of the testator's estate was insufficient to pay the debts and legacies-Held, that the annuities given by the will Erre a charge upon the Roscrea estate in priority of the debts and legacies. Held further, that the annuity given by the codicil was also a charge upon the same estate, subject to the annuities. and Phear, for the several respondents, were not called upon. LORD CHANCELLOR.-I have considered the arguments addressed to me on behalf of the appellants, and am unable to entertain any doubt as to the conclusions to which I should arrive. The question arises in this way:-The late Earl of Portarlington derived his Roscrea estate in tail male, subject to certain annuities. He directed that the residue of his estates should be the primary fund for the payment of his debts and legacies, and that the Roscrea estate should not be subject to such debts and legacies unless the residue should prove of insufficient value. The question turns upon the particular expression in this devise, "My Roscrea estate herein before devised, subject as aforesaid, to the said George Lionel Dawson Damer and the heirs male of his body." The contest on the part of the legatees, was to be allowed to have the legacies put upon an equal footing with the annuities, and for that purpose it was ingeniously argued, that the words "herein before devised, subject as aforesaid," which are added to the substantive, "Roscrea estate," were to be taken, not as part of the description of the subject-matter, but as a narration, or as words of reference only to what had been previously done by the testator; and it was desired to take the substantive words "Roscrea estate" apart from the adjective, the annexed words, and to read the annexed words as if the word "which" had been inserted, and then to read them only as if they had been "My Roscrea estate, which I have herein before devised, subject as aforesaid." If that could be done, the legacies would then be charged upon the Roscrea estate, as entirely as, and might come into competition with, the annuities. But I am unable to adopt that construction, and if I could, I do not think it would get rid of the effect of the words "subject as aforesaid." I take the words as meaning to describe that thing which Colonel Damer took by virtue of the devise, and what Colonel Damer took by virtue of the devise was the Roscrea estate, burthened with the annuities. Therefore, I am of opinion that the subjectmatter which is charged with the legacies, in the contingency which has happened, is only the Roscrea estate, burthened with the annuities. I consequently give effect to the words "subject as aforesaid," by making the legacies a charge upon the Roscrea estate, subject, nevertheless, to the antecedent and prior incumbent annuities. That is the interpretation which I think is nearest to the words of the will. Another point arises upon the codicil, whereby the testator bequeathed to Ellen Whitaker Barley the sum of 3001. a year for her life, and directed a house to be bought for her; and further directed that to be done for her after his decease, out of his estates in Ireland. I think that this annuity and the purchase money of the house are legacies which rank with the legacies given by the will, and in like manner are charged upon the Roscrea estate, subject to the annuities. particular direction in the codicil is not, I think, sufficient to divert this legacy from the general gift of legacies, which are made chargeable expressly on the Roscrea estate. Therefore, I must affirm the decree of the Vice-Chancellor, and dismiss the petition of rehearing, with costs. This was an appeal from a decision of Sir R. T. Kindersley, V. C., upon the construction of the will of the late Earl of Portarlington. The testator, by his will, dated the 11th April, 1844, after bequeathing certain legacies, devised and bequeathed his freehold property, called or known by the name of the Roscrea Estate, in Ireland, unto and to the use of Colonel George Lionel Dawson Damer, and the heirs male of his body, but subject nevertheless, and charged and chargeable, with the payment of certain annuities therein mentioned. And the testator then proceeded as follows:-" And I do hereby direct, that the residue of my estates hereinafter devised shall be considered and made the primary fund for the payment of my debts and the several legacies given by this my will, and that my Roscrea estate hereinbefore devised, subject as aforesaid, to the said George Lionel Dawson Damer, and the heirs male of his body, shall not be subject or liable to the payment of the said debts and legacies, unless the said residue of my estates hereinafter specifically bequeathed for these purposes shall prove of insufficient value." The testator then devised the residue of his real estates in trust for sale, and declared the trusts of the proceeds, after payment of costs, charges, and expenses, and of the annuities before mentioned, and of interest on debts carrying interest, and his funeral and testamentary expenses, and the interest on unpaid legacies, as follows:-"And do and shall, in the next place, pay and discharge the principal of all my just debts, and the legacies given by this my will, in such order and course as they or he shall think fit; and every legacy or legacies to be given by any codicil or codicils hereto, unless a contrary direction shall be expressed in such codicil or codicils." The residue was insufficient to pay the debts and legacies. The first question was, whether such debts and legacies were chargeable, pari passu with the annuities, on the Roscrea estate, or whether the latter took priority; and, secondly, whether the annuity given by the codicil was a charge on the Roscrea estate. The Vice-Chancellor held, that the annuities given by the will were entitled to priority, and that the annuity given by the codicil was a charge upon the Roscrea state. From this decision the legatees under the will now appealed. Valuation. The Sir Hugh Cairns, Q. C., Chapman Barber, and Baghat appeared for the appellants.-[They referred to Waring. Ward (7 Ves. 332); Henwood v. Overend (1 HALL V. BARROws.-Nov. 2 and 3, and Dec. 21. Mer. 23); Jackson v. Hamilton (3 Jo. & Lat. 702; S. C., Trade-mark-Partnership — Goodwill - Dissolution— Hamilton 1. Jackson, 9 Ir. Eq. Rep. 430); Creed v. Creed (11 C1 & Fin. 491); Conron v. Conron (7 H.L.C. 168); and Maskell v. Farrington (8 Jur., N. S., 694; S. C., on app., Id. 1198).] The Attorney-General (Sir R. Palmer), Wickens, Young, By articles of partnership it was provided, that in case either of the partners should die during the partnership, the surviving partner should have the option of taking to himself all the stock belonging to the partnership, on |