time, the opinions of both those learned Judges will be affirmed."

The opinion of the Vice Chancellor which is thus affirmed was that to which we have just alluded, and which was actually carried into execution in the order which was then before the Court in an administration suit. In the same judgment Lord Truro says: "These authorities seem to me to shew that the charitable legacies in the present case are demonstrative legacies, or analogous thereto; but whether this is the precise character of these legacies, so that, had there been a deficiency of assets, they would have been entitled to be paid in full in priority to the other legacies, it is not necessary to decide; all that I need determine in the present case is, whether the legacies to individuals are to be paid partly out of the pure personalty, or whether they are to be paid exclusively out of the personalty savouring of realty, which is sufficient for the full payment of those legacies;" and, again, he says: "by directing that the charitable legacies shall be paid exclusively out of the pure personalty, he (the testator) has plainly shewn his intention that they shall be satisfied out of the pure personalty in preference to the legacies to individuals, whether they are strictly demonstrative legacies or not."

In the case now before us it is clear that the charitable legacies are entitled to be paid out of the pure personalty in priority to the other legatees, and on this point also we agree with the learned Vice Chancellor; but we think that the case of Robinson v. Geldard cannot be considered as an authority in support of the further contention on the part of the charitable legatees that the administration charges ought to be thrown exclusively upon the rest of the estate. It is true that this contention is supported by the decision of the present Lord Chancellor (Lord Hatherley), when Vice Chancellor, in Tempest v. Tempest; but as that decision was overruled by Lord Chancellor Cranworth, we are bound to accept the decision of the Court of appeal as an authority superior to that of the judgment of the Vice Chancellor which was reversed.

The counsel for the charities treated this decision as resting upon a very narrow ground, and in a manner not warranted

by the terms of the judgment, when they argued that it depended entirely on the insertion by the testator in that case of the words "in precedence of the other pecuniary legacies." Lord Cranworth observed that in Robinson v. Geldard Lord Truro had said that he must take the direction in the will that the charities were to be paid out of the pure personalty to amount to a declaration of intention that the charitable legacies were to be paid out of the pure personalty in preference to the other legacies, and, after commenting on the nature of demonstrative legacies, and saying that he need not puzzle himself whether the legacies were or were not demonstrative, he proceeded to state that the "testatrix has not directed that her debts or funeral and testamentary expenses should be paid out of that part of the personalty which savours of realty, nor has she expressed any intention to release the pure personalty from its legal liability to contribute to the payment of debts which by law are payable rateably out of both classes of personalty." It having thus been held that a direction to pay charitable legacies out of the pure personalty amounts to a declaration of intention that they are to be paid thereout in preference to the other legacies, it would be a strange result of the authorities if the declaration by a testator in express terms of this preferential payment should place the charitable legacies in a worse position than they would have been if the testator had left the same intention to be implied from the simple direction to pay out of the pure personalty.

If we consider the case before us independently of the authorities, and as a question of the intention of the testator as expressed in his will, we are led to the same conclusion as that at which Lord Cranworth arrived in Tempest v. Tempest (4). It is clear that the testator had present to his mind the effect of the statute of 9 Geo. 2. Mr. Joshua Williams, in his book on the Law of Personal Property, 6th ed. p. 328, says, "A bequest to a charity ought to be directed to be paid out of such part of the testator's personal estate as he may lawfully bequeath for such a purpose; for,

(4) 7 De Gex, M. & G. 470,

if this precaution should be neglected, the charitable legacies will fail in the proportion which the personal assets savouring of the realty may bear to those which are purely personal."

We have referred to this passage because in our judgment it defines precisely what was the intention of the testator, and what was the precaution which he did not neglect. But we cannot find in this will any expression of an intention to relieve the pure personalty from its obligation to contribute rateably with the rest of the estate to the burden of the administration charges, nor to cast that burden exclusively upon the rest of the estate, and we do not feel ourselves at liberty to imply any such intention. We think, therefore, that the Vice Chancellor's order must be varied by directing that the administration charges be paid rateably out of the whole estate, and the charitable legatees will then take what remains of the pure personalty in part payment of their legacies, and they will have a claim upon the rest of the estate for so much of their legacies as shall remain unpaid; but, as they are precluded by the statute from taking any part of the personalty savouring of realty, this claim must abate in the proportion which the personalty savouring of realty bears to the proceeds of the Madeira estate, which are not the subject of the provisions of the statute.

We think that the charitable legatees must be allowed their costs of the suit out of the estate, and that the appellants in the first appeal must bear their own costs of that appeal, but the costs of the respondents to that appeal, and the costs of all parties to the second appeal, must be paid out of the estate, and the deposits will be returned.

Solicitors-Messrs. Roy & Cartwright, for plaintiffs; Mr. Cundy, for Miss Oliveira; Messrs. Boys & Tweedies; Messrs. Few & Co.; Messrs. Bailey, Shaw, Smith & Bailey, and Messrs. Curtis & Bedford, for other parties interested.

Specific Performance Agreement to Sell-Failure of Execution by a Party having no Interest.

Five persons contracted to sell an estate in land, and a formal agreement was prepared, but before execution it was discovered that the entirety belonged to four only, and accordingly it was verbally agreed that the fifth should not be required to execute. The agreement was executed by the four only as vendors and by the purchaser, but as no alteration was made in the body of the agreement it still purported to be an agreement by the five to sell and convey:-Held, that the four who executed could not maintain a bill for specific performance against the purchaser

Richard Bird, by his will, dated the 24th of September, 1867, devised and bequeathed all his property real and personal to Isaac Harris and Thomas Collier, in and for the consideration of paying over all the yearly rents, interests and profits arising from the same (after deducting rates and taxes on the same) unto his wife Mary Rebecca Bird during her life, and he appointed the said Isaac Harris and Thomas Collier executors of his will, and directed them to pay all his funeral and testamentary

expenses.

The testator made no further disposition of his property. He left no issue. William Bird, his eldest brother, pre-deceased him, having had five legitimate children, one son and four daughters, and an illegitimate daughter.

The son died without issue in the testator's lifetime. Elizabeth Hornsby, one of the four daughters, died in the testator's lifetime, leaving one child, Joseph Hornsby. The other three legitimate daughters, namely, Ann Wrighton, Sarah Howes, the wife of Charles Howes, and Mary Bird, and the illegitimate daughter, Hannah Cryer, were still living.

At the time of the testator's death the illegitimacy of Hannah Cryer was not known, and accordingly she, together with the three living daughters of William Bird

and Joseph Hornsby, the child of William Bird's deceased daughter, claimed to be the testator's heirs at law, and to be entitled as such to the reversion of the testator's real estate, and to a share of the reversionary interest in his personal estate, as some of his next-of-kin. At first, however, Harris and Collier, the trustees and executors, claimed to be entitled to these reversionary interests beneficially; and in consequence Mary Bird instituted a suit of Bird v. Harris against them, in which she prayed. that they might be declared trustees for the testator's heirs-at-law and next-of-kin.

It was subsequently proposed that the suit should be discontinued, that Harris and Collier should abandon their claim, and that Mary Rebecca Bird should purchase the reversion of the real and personal estate for 3,200.

Sarah

An agreement was accordingly prepared and engrossed, which was dated the 17th of December, 1867, and expressed to be made between Isaac Harris and Thomas Collier of the first part, Joseph Hornsby, Aun Wrighton, Hannah Cryer, Charles Howes and Sarah his wife and Mary Bird of the second part, and Mary Rebecca Bird of the third part. This agreement recited the will of Richard Bird and the pedigree of William Bird's descendants, Hannah Cryer being named as one of his daughters. It also recited that, subject to Mary Rebecca Bird's life estate Joseph Hornsby, Ann Wrighton, Hannah Cryer, Howes and Mary Bird deemed themselves to be equitably entitled to the testator's real estate as coparceners, and that, subject to the payment of the debts. and funeral and testamentary expenses, they were entitled to a share of one moiety of his personal estate as some of his next-of-kin. By the operative part these five persons agreed to sell and Mary Rebecca Bird agreed to purchase for 3,2007., provided the five claimants should satisfactorily prove themselves to be the testator's co-heirs-at-law and some of his next-of-kin, the interest of the five claimants in the testator's real and personal estate, subject to the following (amongst other) conditions, namely, that the vendors should execute a proper conveyance to the purchaser and her heirs, such conveyance to

be prepared by and at the expense of the purchaser, and that the purchaser should, on the 24th of March, 1868, pay into the hands of such of the vendors as should be proved to be entitled to the real estate as co-heirs, and also to one-sixth of the personal estate as next-of-kin, his or her share of the purchase money, the proof of heirship to be obtained by and at the expense of the vendors.

The agreement was executed as follows: "Signed by Richard Howes, of Towcester, as solicitor and agent, under written authority and on behalf of Isaac Harris, Thomas Collier and Mary Rebecca Bird.—Richard Howes. Signed by William Whitton, of Towcester, solicitor, an agent under written authority and on behalf of Ann Wrighton, Joseph Hornsby, Charles Howes and Sarah his wife, and in the capacity of solicitor for Mary Bird, plaintiff in suit Bird v. Harris and another, filed on the 7th of December, 1867, which suit it is hereby agreed shall be taken off the file or dismissed with costs to be paid to the plaintiff.-—William Whitton."

The authority under which Mr. Howes signed the agreement was as follows: "Re Bird, deceased.-We do hereby authorize Mr. Richard Howes, of Towcester, our solicitor, to sign any contract that may be necessary for the purpose of purchasing and vesting the remainder in fee simple of the real estates of which the said Richard Bird died possessed, and also the share of the children of William Bird, the brother of the said Richard Bird, deceased, of and in the personal estate of the said Richard Bird, deceased, in Mrs. Mary Rebecca Bird, the widow, the cestui que trust for life; and I, the said Mary Rebecca Bird, do hereby authorize the said Richard Howes to contract to pay on my behalf the sum of 3,2007. to the said heirs-at-law of the said Richard Bird, deceased, for and in consideration of their releasing to me their interest in the said real and personal estate of the said Richard Bird, deceased. Dated this 17th day of December, 1867. Isaac Harris, Thomas Collier, Mary Rebecca Bird."

Before the execution of the agreement it had been discovered that Hannah Cryer was illegitimate, and the bill alleged that it was verbally agreed that she should be

regarded as having no interest in the testator's estate, and should not be called upon to execute the agreement although named as a party therein.

Soon after the execution of the agreement, the bill in Bird v. Harris was taken off the file.

Mary Rebecca Bird now refused to complete the purchase, and this bill was accordingly filed by Joseph Hornsby, Ann Wrighton, Charles Howes and Sarah his wife, Mary Bird and Thomas Collier, against Mary Rebecca Bird and Isaac Harris, to compel specific performance of the agreement.

Neither of the defendants admitted that they had agreed, as the bill alleged, that Hannah Cryer should not be required to execute the agreement. The answers also alleged that the authority under which Richard Howes purported to sign the agreement was improperly obtained from the defendants, and not binding upon them, and much evidence was adduced in support of this contention.

Mr. Amphlett and Mr. Edgar Rodwell, for the plaintiffs.-The fact that Hannah Cryer, who neither has nor claims to have any interest in the testator's property, is named as a party to the agreement, does not render it less a valid contract in favour of the plaintiffs, who alone are able to do all that Mrs. Bird is entitled to require, namely, to vest in her the entire interest comprised in the agreement. If a contract be made with an adult and an infant which the infant repudiates the adult alone can sue

Gibbs v. Merrill, 3 Taunt. 307. Mr. Druce and Mr. L. Field, for Mrs. Bird.

Mr. Kay and Mr. Dunn, for Harris.

JAMES, V.C.-In this case I am of opinion the plaintiff's bill is misconceived. The jurisdiction of this Court is to enforce specific performance of a contract, and the duty of a plaintiff who comes to the Court asking the specific performance of a contract is to shew that the contract of which he seeks specific performance was entered into by the defendant as against whom he seeks it. In this case the defendants have not

signed any contract themselves, and they are bound, if bound at all, by the authority which they gave to Mr. Richard Howes. The only contract which is produced, signed by the agent Mr. Richard Howes, is a contract by which certain persons, including one Hannah Cryer, bind themselves to convey the estate. The contract sought to be enforced is a contract which persons, not including Hannah Cryer, say they have entered into with the defendants. The only contract signed by the agent Mr. Howes is a contract that never was completed, because in order to the completion of a contract it is necessary that the contracting parties therein named should all of them have assented to it; and the fact that Hannah Cryer never was a party to that contract would make it as incomplete as if nobody had ever entered into the contract at all; therefore there was no contract in truth ever made between these parties. Even if the contract were made there would be this fatal objection to the bill as it stands, that it seeks to have a written contract performed with a parol variation, and even that parol variation is not proved in the way in which it is alleged in the bill. However, I do not know that that is very material. I proceed entirely on this, that the contract sought to be enforced was never entered into by the defendants at all. Of course the result of that will be that the bill must be dismissed.

With regard to costs, the defendants have made a case that they were induced to enter into the agreement unfairly and by pressure, and they have adduced a good deal of evidence in support of this contention. I am satisfied that no such case is proved, and the justice of the case will be met by not giving them any costs.

Solicitors-Messrs. Dale & Stretton, agents for Mr. Whitton, Towcester, for plaintiffs; Messrs. Field & Co., agents for Messrs. Stone, Paget, Bills & Stone, Leicester, for defendants.

the solemnization of the marriage, and during the joint lives of Sir Robert Nickle and Lady Nickle, for Lady Nickle for her separate use. And it was thereby declared

Three several funds were settled upon a lady for life. On her death, fund 1. was to be held for such persons as she should by will appoint. Funds 2. and 3. were to be held in case she died in her husband's lifetime for such persons as she should by will appoint; but in case she survived him the last-mentioned funds were to become her absolute property. She, by will, made in her husband's lifetime, appointed the three funds to her executors, and directed the latter to pay thereout several legacies to persons some of whom were and others were not her nextof-kin. She survived her husband and died without having republished her will, in consequence whereof funds 2. and 3. were undisposed of. Fund 1. was insufficient to pay all the legacies in full:-Held, that those of the legatees who were also next-of-kin were not put to their election, but were entitled to proportionate parts of their several legacies, as well as to their shares of funds 2. and 3. as next-of-kin.

Held, also, that testatrix's debts and funeral and testamentary expenses and the costs should be paid out of the undisposed of funds.

This was a SPECIAL CASE.

By the will of Jane Grindle, dated the 2nd of March, 1818, a sum of 8,1007. 31. per cent. consolidated Bank annuities was bequeathed to trustees, upon trust for Lady Nickle (then Elizabeth Grindle) for her life for her separate use, and after her death, and in default of children (which event happened), upon trust for such person or persons, for such interest or interests, and in such manner as Lady Nickle should by deed or will, and notwithstanding coverture, appoint.

On the 14th of April, 1846, Lady Nickle (then Elizabeth Nesbitt, widow) intermarried with Sir Robert Nickle.

By an indenture of settlement, dated the 8th of April, 1846, made in contemplation of the marriage, the sum of 1,0007. East India stock was settled upon trust, after

lifetime of Lady Nickle, the trust funds thereby settled should, after his death, be held in trust for Lady Nickle absolutely; but if she should die in his lifetime, the trust funds were, after her decease, to be held in trust for such person or persons as she should by will appoint, and in default of such appointment, and after the determination of a life interest thereby in default of such appointment given to Sir Robert Nickle in the trust funds, the latter were to be held in trust for the next-of-kin of Lady Nickle.

By another indenture of settlement, also dated the 8th of February, 1846, and made in contemplation of the aforesaid marriage, the several sums of 9,000l. 37. per cent. consolidated Bank annuities, 10,000l. reduced annuities, and 1137. 38. long annuities (which terminated in 1860), and a leasehold messuage, were settled upon trusts, and subject to powers similar in all respects to the trusts and powers in the first-mentioned indenture declared and contained concerning the 1,000l. East India stock thereby settled.

In 1853 the leasehold messuage was sold, and the proceeds of the sale thereof were invested in the purchase of 280l. 10s. 4d. consols, making, with the above-mentioned 9,000l. consols, the sum of 9,2801. 10s. 4d. like annuities.

Lady Nickle, in the lifetime of her husband, made her will, dated the 17th of February, 1853, and she thereby, after reciting the before-mentioned will and indentures of settlement, in exercise of the powers to her reserved by such will and indentures respectively, declared that the trustees thereof respectively and all other parties should, after her death, stand possessed of all the trust moneys, stocks, funds and securities, and of all other real and personal estate over which she had a power of appointment, upon trust to pay and transfer the same to her executors and trustees, to whom she thereby appointed the same. The testatrix then directed her executors and trustees to raise and pay thereout several legacies to persons some of