the house lay a few feet back from the main road, with a small fore-court or garden in the front. The parlonr contained a bay window, and the defendant Andrews had put up on the blind, in the front part of the window, the words, "Alpheus Andrews, And at the Corn Exchange." And on each of the side blinds were the words "Coal Office." The bill prayed that the defendants, their tenants, &c., might be restrained from using the said house and premises for a coal office, or allowing the same to be used, and from carrying on, or allowing to be carried on, the business of a coal merchant thereon, and from exhibiting the said notice, or from using or allowing the said house and premises to be used other than as a private dwelling-house, and from in any manner violating the covenants and stipulations contained in the said lease. The house, No. 37, had recently been in the occupation of a surgeon, who had built a small surgery on the side garden. The words "Mr. R. Smith, Surgeon," were over the door, and there was a brass plate on the door, containing the same words. The house was now empty. The house, No. 38, was in the occupation of Mr. Franklin, a dentist. The words "Mr. Franklin, Dentist," were written in gilt letters on the front door. There was a zinc plate attached to the front rails, and a brass plate affixed to the front window; on each of which were the words, "Mr. Franklin, Dentist." The house, No. 40, was, for a period of two years, and up to September last, in the possession of Mr. Fisher, a photographer. The words "Fisher, Photographer," were painted on the front door, and frames and photographs were exposed for sale. Mr. Fisher left in September last, under notice from the plaintiff, on the ground that he had committed a breach of covenant in making a show of business on the premises. It appeared that of the ninety-four houses comprising Westbourne-grove, most of which were built for private dwelling-houses, only two were now occupied as private houses. Selwyn, Q. C., and Swanston, in support of the motion, upon the construction of the covenant not to use the premises otherwise than as a private dwellinghouse," cited Kemp v. Sober (1 Sim., N. S., 517); Doe d. Bish v. Keeling (1 Mau. & S. 95); and Johnstone v. Hall (2 Kay & J. 414). Putting up the words "coal office," was an invitation to all the world to resort to the house, and destroyed its privacy. What had been done in the adjoining houses did not amount to a "converson into a shop," so as to give the defendants the benefit of the proviso in the covenant. Hinde Palmer, Q. C., and Boyle, for the defendant Rogers, contended that the act complained of did not amount to a breach of the covenant; and if it did, that, by the plaintiff's acquiescence in the use of the photographer's house, he forfeited his right to relief. The "assignees" of the lessee, not being named, were not bound; and the plaintiff's remedy was at law against the covenantor. Locock Webb, for Andrews. was considered doubtful, but since Spencer's case Rep. 17), it has been well settled that such a covena binds the assignees, whether named or not. A cov nant as to the mode in which a house is to be ke and conducted, runs with the land. The main question is, whether there has been breach of the covenant. It is admitted that ord for coals are received at the house; and although co are not supplied from there, nor samples exposed view, yet I am of opinion, that, as the inhabitants the neighbourhood may come to the office if th choose to order coals, it is not using the house as "private dwelling-house," within the terms of t covenant. But the covenant goes on to provide, that the less shall not do, or suffer to be done, upon the premi any act or thing which may be, or grow to be, an a noyance, damage, or disturbance to the lessor or t tenants of the adjoining premises; and the less therefore, is entitled to enforce the covenant, if can shew any damage within the terms of the co nant. Now, if a person wished to use one of the a joining houses as a private dwelling-house, if the was a "coal office" next door, he might be thereby terred from taking the house; and I am of opini that such a use of the house is an annoyance with the meaning of the covenant. It is true that all t other houses in the Grove have been converted in shops, and it may be the object of the plaintiff to c tain possession of this house for the purpose of co verting that also into a shop, and thereby obtaini an increased rent; but, whether this be so or not am of opinion that the Court cannot regard it. The only remaining question is, whether the pla tiff has forfeited his right to enforce the covenant allowing the photographer's house to be used as a sh It appears that the photographer exposed goods sale, and this, in one sense, converted the house int shop; but I am of opinion that the expression "c version into a shop," means a structural conversion that is, by altering the front of the house in the sa way that the other houses in the neighbourhood ha been structurally altered. If, however, the pho grapher's house were still being used as it was u formerly, I would not entertain the plaintiff's ap cation; but the plaintiff has put an end to it, thou he has been tardy in doing so, allowing it to be c tinued for a period of two years. He has now put end to it however, and I am of opinion that he not forfeited his right. I must, therefore, grant injunction in the terms prayed. PONSARDIN v. PETO.-Dec. 10. Practice-Trade-mark-Insolvent mortgagee-Costs An injunction was obtained to restrain the defendants, were wharfingers, from parting with certain goods. the ground that they had been imported with counter trade-marks. U., who was not a party to the suit, bona fide advanced money before bill filed, on the se rity of the dock warrants. Upon motion by V. interesse suo-Held, that he had a priority, in res of his advance, over the plaintiffs' costs of suit, he dertaking to destroy the counterfeit marks, and pay the costs of the motion. The charges of the wharfing and their costs of suit, to be paid by U., and adde his advance. Nov. 25.—Sir J. ROMILLY, M. R.-This was a motion to restrain the defendant from putting up a blind in the window of the house No. 39, Westbourne-grove; and the right to relief depends upon the terms of the This bill was filed by the plaintiffs, as the produc covenant entered into with Sperling. It was con- and shippers of the "Veuve Cliquot Ponsardin" cha tended by Mr. Boyle that the covenant did not bind pagne, against the defendants, the lessees of the the assignees of the lease, the assignees not being ex-toria Docks, to restrain them from parting with pressly named; and I confess that I was somewhat cases of wine which had been imported from Fra surprised at the argument. At one time this question and was a spurious imitation of the plaintiffs' wi and corked with corks branded with a counterfeit of their trade-mark. The dock company were alone made parties to the suit. The shipper was out of the jurisdiction, and the plaintiffs, at the time of filing the bill, did not know in whose hands the dock warrants were. The defendants submitting to act as the Court should direct, an injunction was granted accordingly. Before the bill was filed, the dock warrants had been indorsed to Mr. Edward Uzielli, for money advanced without notice of the fraud, and in the belief that the wine was genuine. Being unable, by reason of the injunction, to obtain possession at law, he now moved, by consent of all parties, pro interesse suo, that he might be at liberty to destroy all the fraudulent corks, and substitute proper corks at his own expense; and that, upon payment of the defendants' charges, he might have the wine delivered up to him. Mr. Uzielli submitted to pay all the costs of the present motion, and also the defendants' costs of suit; but he refused to pay the plaintiffs' costs of suit. Hobhouse, Q. C., and Lovell contended, that the applicant's lien had priority over the plaintiffs' costs of suit. Selwyn, Q. C., and W. D. Gardiner, for the plaintiffs, submitted that Mr. Uzielli could not stand in a better position than if he had been made a defendant, in which case he must have paid all the costs before he could obtain possession of the wine. (Burgess v. Hill, 26 Beav. 244; 5 Jur., N. S., 233). Bagshawe, for the dock company. Sir J. ROMILLY, M. R., was of opinion that Mr. Uzielli could not be required to pay the plaintiffs' costs of suit. He had bonâ fide advanced his money before bill filed, upon the security of the dock warrants, which were a good security for the money advanced. He had thereby acquired a lien in priority to the plaintiffs' costs of suit. If he had been a party to the fraud, the plaintiffs would have been entitled to relief against him, with costs. The Court would restrain him from selling the wine with the spurious trade-marks; but, subject to his destroying those marks, he was entitled to have the wine delivered up. As Mr. Uzielli had been allowed to come in as though he were a party to the suit, he must pay the costs of the present motion. There would be an order, that the wharfingers' charges and costs of suit were the first charge upon the wine; Uzielli to pay these costs, and add them to his advance, and the total to form the second charge; the plaintiffs' costs of suit to be the third charge. Uzielli to pay all the costs of the present motion. VICE-CHANCELLOR KINDERSLEY'S COURT. Further consideration.-The bill was filed by two of the children of the testator in the cause, against the executors, and prayed a declaration of the rights of the parties, and for administration of the estate. The facts were these:-Peter Hand, by his will, dated the 22nd May, 1840, gave in trust to certain persons as executors, in trust for his widow and children under the age of twenty-one years at his decease, the whole of his real and personal estate and effects, whatsover and wheresoever, "to be divided amongst his children in manner following, as they should become of the age of twenty-one years (that was to say), to his son R. S. Hand the sum of 2007., and to his three daughters, Hannah, Mary, and Susan, the sum of 400l., to be equally divided amongst them, in addition to the rest of his children; and the remainder and residue of his estate and effects the 1 said testator gave and bequeathed to all and every one of" his thirteen children, including the four beforementioned children, "and to any other child or children which he might thereafter have lawfully born in wedlock, share and share alike, as they should become of the age of twenty-one years; and the principal sum of each child's share to be put on mortgage on freehold land security, until they should become of age; the interest of each child's share to be applied for the maintenance and education of each child, except what thereafter was excepted." The testator then gave his wife, for her life, the sum of 157. per annum out of the interest of a principal sum to be put on mortgage of freeholds for that purpose; and proceeded-"and after her decease, the said principal sum to be equally divided amongst his before-named children as they should become of age, and such other children as should be born as aforesaid." By a codicil of the same date, the testator gave and bequeathed unto his two grandchildren, Jane White and Charles White, "as they should become of age," the portion or share that would have belonged to their mother had she survived him. Jane White and Charles White were the children of the testator's daughter Hannah. The testator died in March 1841, and his widow in April, 1860. Charles White survived the testator, and died under the age of twenty-one, a bachelor. Jane White survived the testator, and attained twenty-one, married one Stephen Bourne, and lately died, leaving her husband and several children her surviving. The plaintiffs submitted, that the shares given to Charles White and Jane Bourne by the codicil, being given contingent on attaining the age of twenty-one years, a tenancy in common was thereby created. Nalder, for the plaintiffs.-This is a tenancy in common, for neither Jane nor Charles White took vested interests until they respectively attained twenty-one. Woodgate v. Unwin (4 Sim. 129), though considered by Vice-Chancellor Wood, in Kenworthy v. Ward (11 Hare, 196; 17 Jur. 1047), to be contrary to Amies v. Skillern (14 Sim. 428), was recognised by the Court of Appeal in M'Gregor v. M'Gregor (1 De G., F., & J. 63). [Sir R. T. Kindersley, V. C.-The Vice-Chancellor only disapproved of Woodgate v. Unwin, if it was decided on the ground, that the circumstance of the children coming into esse at different periods must constitute a joint tenancy.] In estates created by conveyances at common law, unity of time as well as of interest is required to constitute a joint tenancy. In estates created by conveyances under the Statute of Uses, or by wills construed in analogy there with, unity of time may be dispensed with, but there must be unity of interest; and unity of interest could not exist here, where one child, having attained twenty-one, had a vested interest, and the other, being under twentyone, a contingent interest. Pemberton, for the next of kin, cited Vaudrey v. Geddes (1 Russ. & M. 203). Surrage, for the heir-at-law of the testator. Rasch, for the executors, contended, by arrangement, on behalf of the representatives of Jane White, that the gift constituted a joint tenancy, and that she took the whole. He argued that the interests of Jane and Charles White vested, both as to realty and personalty, at the death of the testator. (Boraston's case, 3 Rep. 19 a.; Fearne's Cont. Rem. 241; Leake v. Robinson, 2 Mer. 363). The authority of Woodgate v. Unwin was questioned. Nalder, in reply. stitute a joint tenancy; and Woodgate v. Unwin is 1 irreconcileable with the authorities, for it was decid not on the ground of the children coming into esse different periods, but on the ground of their attaini twenty-one-the period of vesting, at different tim In this case, were it not for the words "as they sh become of age," the gift to Charles White and Ja White would have constituted a joint tenancy. Th interests under the will do not vest until they att twenty-one. They cannot come of age at the sa time, and, upon the result of the cases, they are tena in common. Charles White took no vested inter and the moiety of his mother's share, given to him undisposed of. So far as it is realty, it will go to testator's heir-at-law; so far as it is personalty, to VICE-CHANCELLOR STUART'S COURT. CURRIE and Another v. LARKINS and Others Marriage Sir R. T. KINDERSLEY, V. C.-The principal question is so far as relates to the interest in the moiety of that portion given by the will to Hannah White which would have belonged to Charles White if he had not died under the age of twenty-one. Under the will, Hannah White, one of the testator's daughters, would have been entitled to a certain share or portion of the testator's real and personal estate. She, however, died in the testator's lifetime; and by a codicil, in which he impliedly notices her death, he gives and bequeaths to Jane and Charles White, his grandchildren, as they become of age, the portion or share which would have belonged to their mother if she had survived him. Charles White has died under the age of twenty-one. Jane White attained twenty-next of kin*. one, and has since died. Then comes the question, what was the interest taken by Jane and Charles White, in the portion of Hannah White, under the gift in the codicil to them, "as they should become of age?" If it had been simply a gift to those two grandchildren, it would have constituted a joint tenancy. The question is, whether it is a tenancy in common, by reason of those words, as they become of age?" Various cases have been cited: amongst them, M'Gregor v. M'Gregor (1 De G., F., & J. 63), a decision of the full Court of Appeal, which, if in point, I must, of course, follow. It appears to me that the effect of the cases is this:-If a testator makes a gift, so as to include after-born children, such as a gift to A. for life, and after his decease to the children of B., which would include all children born in the lifetime of A., the gift must take effect as to some before others. Then, in the absence of such words as are here used, viz. as they become of age," such a gift does not, by reason of its taking effect as to children coming into esse at different periods, necessarily constitute a tenancy in common; it is a joint tenancy. But superadd those words to such a gift, and the effect of the cases is, that a tenancy in common is created, not by reason of after-born children being let in, but by reason of the vesting taking place ex necessitate at different periods. In Woodgate v. Unwin (4 Sim. 129), where the gift was to A. for life, and after her decease to her children when they arrived at the age of twenty-one years, the Vice-Chancellor of England determined that, by reason of the different periods at which the interests vested, it was a tenancy in common. In Kenworthy v. Ward (11 Hare, 196), Vice-Chancellor Wood said, he found it impossible to reconcile Woodgate v. Unwin with Amies v. Skillern (14 Sim. 428), or with the general current of authorities, if the principle of the former case was to be taken as laying down, that where there was a gift to children on attaining the age of twenty-one years, the mere circumstance of those children coming into esse at different periods was of itself sufficient to convert the joint tenancy into a tenancy in common. In M'Gregor v. M'Gregor (1 De G., F., & J. 63), in which all these cases were cited, Lord Campbell said, that Woodgate v. Unwin was well decided, but that the doctrine supposed to be established by it was erroneous; and Lord Justice Turner considered that the Vice-Chancellor, in Woodgate v. Unwin, meant, that, in order to constitute a joint tenancy, the property must vest at once, and not, as in that case, at twenty-one; adverting to the rule of law, that all joint tenants must take the same quantity of interest; whereas, in the case before the Vice-Chancellor, some of the co-tenants might take vested, and others contingent, interests. Amies v. Skillern is right in deciding, that the mere fact of the objects of the gift coming into esse at different periods, does not con Nov. 24. settlement-Construction—Recital-Provis for children-Period of vesting. By a marriage settlement made in India in 1828, on marriage of G. and L., after a recital, that a certo bond, &c., had been executed as a further provisi for the children of the marriage, trusts were declar for the benefit of the husband and wife for their liv and after their deaths, "for all the children of the mo riage equally; to be paid or assigned to them at twen one, or marriage, whichever should first happen; shares to be deemed vested on the happening those events, and to be paid &c. within six mont next after the decease of the surviving parent, to such the children who should attain twenty-one or be mo ried, being a son or daughter, &c.; and in case a child should survive the parents, and die before a taining twenty-one or marriage, then his or her sho which should have accrued should be for the benefit the survivors in the same manner as the original share and if all such children, except one, should die befo the shares should become vested, then, for the benefit such one, to become a vested interest on his or her taining twenty-one or marriage, after the decease of be parents; and in case there should be no child, or case there should be such child or children, but th should die in the lifetime of the parents, or in t lifetime of the survivor of them, upon trust to p the monies, &c. to the survivor of the parents; or case there should be such child or children who shou survive the parents, but die before the shares beca vested or payable, then for the benefit of such person the surviving parent should appoint; and in defau for the next of kin of such parent." L. died in 183 The children of the marriage were H. G.. who died the lifetime of both parents; J. G., who attained twen one, and died in 1857, in the lifetime of his fathe and C. G., who attained twenty-one, and survived be parents, and who claimed the whole of the trust fund &c. G. in 1841 intermarried with S., and died in 18 intestate; and on S.'s behalf it was contended that next of kin of G. were entitled to two-thirds of the fund &c. :-Held, that the surviving trustees were entitled prove as specialty creditors on the bond, and that trust funds, &c., were divisible into moieties-one longing to the legal personal representative of J. G., a the other to C. G. The case of Perfect v. Lord Curzon (5 Mad. 442) o served upon, and followed. The question in this case arose upon the constru tion of a marriage settlement, dated the 21st Januar * See 2 Jarm. on Wills, 298. 1828, by which Harry Meggs Graves, in contemplation and warrant of attorney to the said Harry Meggs of a marriage with Louisa Seton Larkins (both at that Graves to be cancelled; and that the trustees, &c. time residing at Gorruckpore, in the East Indies), exe- should stand and be possessed of the said sum of sicca cuted a bond, whereby he bound himself unto John rupees, 32,000, or such part thereof as might be paid Trotter, the plaintiff Frederick Currie (afterwards Sir by the said Harry Meggs Graves, as the same should Frederick Currie), the plaintiff Alexander Colvin, and from time to time be got in and received, upon trust to William Ainslie, in the penal sum of sicca rupees, invest the same as therein mentioned. And it was 64,000, of lawful money of Bengal, to pay to them, or further witnessed, that the said trustees, &c. should some one of them, or their or his lawful attorney or stand and be possessed of and in the said three proexecutors, administrators, or assigns; for which pay-missory notes, and the interest and proceeds thereof, ment to be well and truly made, he thereby firmly in trust for Louisa Seton Larkins until the marriage; bound himself, his heirs, executors, and administra. and from and after the solemnisation thereof, upon tors. The same instrument recited, amongst other trust to pay the interest, &c. of the same to the use things, that it had been agreed that the said Harry of Harry Meggs Graves and his assigns for life, to and Meggs Graves should pay into the hands of the said for the joint benefit of himself and Louisa Seton LarJohn Trotter, Frederick Currie, Alexander Colvin, kins; and from and immediately after the decease of and William Ainslie, the sum of sicca rupees, 32,000, Harry Meggs Graves, leaving Louisa Seton Larkins of lawful money of Bengal, when he should become pos- him surviving (which event did not happen), to pay sessed of the same, and, for securing the said sum in the interest to her and her assigns for her life, as the meantime, should enter into the above bond, with therein mentioned; and from and after the death of both a condition for making void the same, and which was of them, upon trust that the trustees, &c. should stand in the following terms:-"Now, the condition of the possessed of all the trust premises and securities, "for above-written obligation is such, that if the said Harry the benefit of all and every the child or children of the inMeggs Graves shall and will truly pay, or cause to be tended marriage, to be divided between and amongst them, paid, unto the said John Trotter, Frederick Currie, share and share alike, and to be paid or assigned to such Alexander Colvin, and William Ainslie, or the survi- child or children respectively at their respective age or ages vors or survivor of them, or the executors or adminis- of twenty-one years, being son or sons, and at their respectrators of the survivor, or their or his assigns, the full tive age or ages of twenty-one years, or day or days of and clear sum of sicca rupees, 32,000, of lawful money marriage, being a daughter or daughters, whichever should of Bengal, so soon as he shall become possessed thereof, first happen;" and in case there should be only one to be held by them upon the trusts declared or ex- child of the marriage, then in trust for such one child pressed, of or concerning the same, in and by a certain only, and to be in like manner paid or assigned to him indenture of settlement, bearing, or intended to bear, or her as in the preceding limitation, which should first even date herewith, and made, or expressed to be happen [age of twenty-one or marriage] after the death made, between the said Harry Meggs Graves of the of the survivor of the said Henry Meggs Graves and first part, the said Louisa Larkins of the second part, Louisa Seton Larkins. And it was declared, that the and the said John Trotter, Frederick Currie, Alex- share or shares of such child or children should become ander Colvin, and William Ainslie, of the third part, and be deemed a vested and transmissible interest at without any deduction, defalcation, or abatement twenty-one years or day of marriage, being a son or whatsoever, then the above-written obligation shall be drughter respectively, which should first happen, after null and void, otherwise the same shall be and remain the decease of the survivors [of the parents], to be paid, of full force and virtue." The said sum of sicca ru- assigned, or transferred, within six months next after pees, 32,000, was further secured by a warrant of the decease of such survivor, to such of the said attorney to confess judgment against the said Harry children as should have attained the age of twenty-one Meggs Graves, but with a defeasance indorsed thereon, years, being a son or sons, or, being a daughter or daughthat no execution should be taken out except after ters, should have attained the said age or be married, default made, according to the condition of the said but with respect to any child being a son or sons, bond. By an indenture, dated the 21st January, 1828, or daughter or daughters, as should be under the made between the parties above named, of the first, age of twenty-one years, or unmarried at the desecond, and third parts respectively, after reciting that cease of the survivor [of the parents], then in trust another sum of sicca rupees, 32,000, had been provided as to the share or shares of such child or children who on the part of Louisa Seton Larkins, and was invested should be so under the age of twenty-one or unmarin three promissory notes of the East India Company, ried," to pay the interest, &c. towards the education and that upon the treaty for the said intended mar- and maintenance of such child or children, according riage it had been agreed that the said three promissory to their respective shares, and until the same should notes should be transferred to the said trustees, upon become payable in manner aforesaid; and it was dethe trusts thereinafter mentioned; and reciting that clared, that in case there should be any child who should the said Harry Meggs Graves for making a further survive the parents, and should die before he or she, being provision for the said Louisa Seton Larkins, and the a son, should have attained the age of twenty-one years, children of the said intended marriage, had executed the or being a daughter, should have attained that age or been said bond and warrant of attorney; it was witnessed, married, then and in that case the share of any child and covenanted, declared, and agreed, by and between so dying, and the interest, &c. "which should then the several parties thereto, that the four trustees, and have accrued, or afterwards should or might accrue," the survivor and survivors of them, and the executors, should be held by the trustees, &c. in trust, and for administrators, and assigns of such survivor, should the benefit of the survivors and survivor of the said stand and be possessed of, and interested in, the there- children, and be equally divided amongst such surin in part recited bond and warrant of attorney, upon trust survivors, and become a vested interest, and be asfor the said Harry Meggs Graves until the intended signed to them, him, or her, when and as their, his, marriage; and from and after the solemnisation of the or her original shares or share were and was before marriage, upon trust to hold the bond and warrant of vested, and to be paid and transferred as aforesaid. attorney until the said Harry Meggs Graves should pay, And also that such increased share as might have acor cause to be paid, unto the said trustees, or trustee crued to any deceased child by the death of any other for the time being, the said sum of sicca rupees, 32,000, of them should from time to time survive, accrue, and and upon such payment to deliver up the same bond remain over, together with and in the same manner as his or her original portion or share, and become vested and payable at the same time therewith; and that if all such children except one should die before the said portions or shares of the principal monies, and all other sums of money, should become vested, or in case there should be only one such child, then upon trust that the trustees, &c. should stand possessed of the whole trust monies, and the interest, &c., for the benefit of such one surviving or only child to become vested interest on his or her attaining the age of twenty-one years or day of marriage, being a son or daughter respectively, which should first happen after the decease of both parents. It was also declared, that in case there should be no child, or in case there should be such child or children, but he, she, or they should respectively depart this life in the lifetime of the parents, or in the lifetime of the survivor of them, then upon trust to pay &c. the whole principal monies thereby assigned &c., and the interest thereof, to the survivor of them [the parents], her or his executors, administrators, or assigns; and in case there should be such child or children who should survive the parents, but depart this life before their, his, or her share should become vested or payable, then upon trust for the benefit of such person as the survivor of the parents should by will appoint; and in case of no such appointment, in trust for the next of kin of the survivor of the parents living at the time of the decease of such survivor. Louisa Seton Graves died in the year 1836, and in the year 1841 Harry Meggs Graves intermarried with the defendant Sarah Catharine Graves. On the 26th April, 1861, Harry Meggs Graves died intestate, leaving the defendant Sarah Catharine Graves, his widow, him surviving, but he left no issue of the second marriage surviving. On the 17th July, 1861, letters of administration of the personal estate of Harry Meggs Graves were granted to the defendant Walter Farquhar Larkins, on the nomination of the defendants Sarah Catharine Graves and Louisa Catharine Graves, and on the 28th November, 1861, letters of administration of the personal estate of John Henry Graves (a son of the marriage, who died on the 8th July, 1857, at Lucknow, in the East Indies, a bachelor, and intestate) were granted to the same defendant, Walter Farquhar Larkins, the said Harry Meggs Graves having died without taking upon himself the administration of such estate. The bill alleged that the said Harry Meggs Graves never made any payment on account of the said sum of sicca rupees, 32,000, and that the same was now due on the security of his bond and warrant of attorney; that the defendant Walter Farquhar Larkins alleged that the said Harry Meggs Graves never became possessed of the said sum of sicca rupees, 32,000, and that consequently that sum had never become payable on the bond. The defendant Sarah Catharine Graves, who alleged that there were five children born of the marriage, also alleged, that, under the trusts of the indenture of settlement, John Henry Graves and the other four children of Harry Meggs Graves took vested interests in the trust funds and property therein comprised; and that, as four children had died, three under age and one before his father, four-fifths of the trust funds and property belonged to the estate of the said Harry Meggs Graves, as such next of kin of his children. The defendant Louisa Catharine Graves, on the contrary, claimed to he entitled to the whole of the trust funds and property as being the only child of the marriage who survived her parents. The bill prayed that the personal estate of Harry Meggs Graves might be administered by the Court, and that what was due thereout to the plaintiffs, as the surviving trustees of the indenture of settlement, might be paid to them; that the rights and interests of all parties under the settle ment might be ascertained and declared; and that the share of the trust funds and property coming to the plaintiffs, as trustees of such settlement, might be distributed accordingly; and also for accounts and inquiries. The evidence as to the number of children born of the marriage of Harry Meggs Graves and Louisa Seton Graves was conflicting, but it was agreed upon at the bar, on behalf of all parties, that there were only three children born, viz. Harry Percy Graves, who was born at Mhow, in the East Indies, on the 9th February, 1835, and died at Delhi, on the 23rd February, 1836, in the lifetime of both parents; John Harry Graves. who attained the age of twenty-one years, and died on the 8th July, 1857, at Lucknow, in the lifetime of his father; and the defendant Catharine Louisa Graves, who had attained the age of twenty-one, and survived both parents. Malins, Q. C., and Bedwell, for the plaintiffs, the surviving trustees, stated the facts, and submitted that the sicca rupees, 32,000, still remained due and owing on the bond, with arrears of interest from the death of the intestate in April, 1861. Rasch, for the defendant Walter Farquhar Larkins, submitted whether the bond was barred by the Statute of Limitations, and whether the sicca rupees, 32,000, had ever become payable on the bond to the judgment of the Court. [Sir J. Stuart, V. C., intimated an opinion that the bond was not barred.] As to the construction of the settlement, he contended that the defendant Larkins, John Henry Graves's legal personal representative, was entitled to one moiety of the trust funds, and referred to the cases of Torres v. Franco (1 Russ. & M. 649); Hotchkin v. Humfrey (2 Madd. 65); Farrer v. Barker (9 Hare, 737); Swallow v. Binns (1 Kay & J. 417; 1 Jur., N. S., 843); and Jopp v. Wood (28 Beav. 53; 6 Jur., N. S., 620).] Bacon, Q. C., and Martineau, for the widow, the defendant Sarah Catharine Graves, contended that the shares were divisible in thirds, and that as two of the children had died before the surviving parent-the father-two-thirds of the funds belonged to his nex of kin. The intention of the settlors was, that all the children of the marriage should take shares. [The] cited the case of Bailie v. Jackson (1 Sm. & Gif. 175). Greene, Q. C., and Joseph Chitty, for the defendan Catharine Louisa Graves, submitted that the bond an settlement constituted in equity one transaction, an the obligation to pay sicca rupees, 32,000, was a vali subsisting specialty debt payable out of the assets o the obligor. [They were stopped on that point.] O the construction of the settlement, they contende that there was no clause which gave anything to child who did not attain twenty-one, and survive bot parents. The gift over was to operate only in case a the children should die in the lifetime of the parent and that meant, that in case any should die in th lifetime of the parents, he or she should take nothin As Miss Graves was the only child who had survive both parents, she was entitled to the whole of the tru funds and property. [They referred to the case Howgrave v. Cartier (3 V. & B. 79).] Sir J. STUART, V. C.-I think the clause of accru is too strongly expressed to justify me in saying, th the child who attained twenty-one, and died in t lifetime of his father, takes nothing. In the cases Perfect v. Lord Curzon (5 Mad. 442) and Woodcock The Duke of Dorset (3 Bro. C. C. 569), the questio which have arisen in this case were very much d cussed. In Perfect v. Lord Curzon (at p. 444 in t judgment by Sir J. Leach), it was said that the settl ment in that case "was to be tried by the rule, whi was stated by Sir W. Grant in the case of Howgre v. Cartier; and if it clearly and unequivocally, throug |