business was a very large one and extended indeed all over England, there is no doubt that the defendant was justified in setting up business at Burton, which is a considerable distance from Kirkstall, and in issuing general solicitations to the public to deal with him there. But the question which I have to determine is whether he was entitled to solicit specially the customers of the old firm. It is admitted that he has a right to carry on the same business where he pleases and to solicit the public, and it is argued that that includes the power to solicit any particular person. For as he may solicit the whole public, he may solicit any one member of that whole. The other side say that you must not violate the principle that if you sell a thing you must not derogate from its value. And the goodwill of a business being the chance that the customers will continue to deal with the purchasers, you do diminish the value of the goodwill if you go to these very customers and ask them to give their custom to you elsewhere. It is true that there is no express covenant to this effect, but they say that it is implied in the sale. Now I have considered the matter, and though the point has been suggested in one or two cases, I am satisfied that it has never definitely come before the Court. I am of opinion, then, that the principle of equity must prevail, and that persons are not at liberty to depreciate in this manner the value of a business which they have sold. It was very properly said in argument, 'If you attempt to forbid this course of conduct, where are you to draw the line?" I will state the principle which appears to me to answer this question. In a great number of cases the Court has to deal with a matter where the law is not settled as to the precise facts until they are brought before the Court. There is no more common question than what is reasonable. You must have the facts in each case, and then determine what is reasonable. The vendors of a business are no doubt at liberty to address a fair and reasonable solicitation to the whole world, but subject to that, I am of opinion that they are not at liberty to solicit the a reasonable and fair solicitation must be determined in each case. In the first place, the vendor on setting up a new business is entitled to publish any advertisement he pleases, and to send any circulars to all persons interested in his trade. But he is not entitled either by private letter or visit or traveller or agent to go to any person who was a customer of the old firm and solicit him-not to go on doing business with the old firm, but to transfer his custom to him. Such conduct is not fair and reasonable when he has sold the business. But so far as the old customers may be affected by public advertisements, there is nothing to militate against the principle. Perhaps a person might publish a circular in the papers so as not to operate in any way except as a solicitation of the customers of the old firm. Well, if such a case came before me, I should hold it to be a merely colourable departure from what is allowed to be done. That would be sending a circular to the customers of the old firm as such. To those limits therefore I shall extend, and within those limits I shall confine the injunction. I should say the defendant is not to be at liberty to apply to any of the old customers personally, by letter, or traveller, to deal with him instead of the old firm. Then, as I understood that the parties were disposed to consider this as the hearing of the cause, I thought I ought to consider how the costs should be borne. And I think I shall not give any costs at all. I don't think the point has been decided or intended to be decided in any of the cases before Lord Eldon. I therefore propose to make an order that, the parties agreeing to take no further proceedings except by way of appeal, grant the injunction, say it shall be without costs, stay further proceedings, and give liberty to apply. The terms of the injunction will be to restrain the defendant from applying to any person who was a customer of the firm of Benjamin Dawson & Company prior to the 13th of June, 1871, privately, by letter, or personally (by which I mean a visit), or by traveller, asking that person to continue to deal Devise of freeholds to C. and his heirs, and "in case he should die leaving no issue, then equally between my surviving children or their families":-Held, a gift (on the death of C. without issue) to the children of the testator, and the children of such of them as were dead, as to such children in joint tenancy. Quære whether in a partition suit the Court will decide a disputed question of law except by consent. The question in this case rose under the will of Thomas Hellyar, dated the 27th of September, 1854. The will contained a gift of a life interest in all the testator's property to his widow and pecuniary gifts to several of his children, and then proceeded as follows "All the rest, residue and remainder of my estate and effects, whether freehold lands, tenements, hereditaments, goods, chattels, credits and effects whatsoever and wheresoever situate, of which I may die seised or possessed of subject to the before-mentioned legacies and annuities, I give, devise and bequeath to my son Charles after his mother's decease and to his heirs; in case he should die leaving no issue, then my freehold estate shall be equally divided between my surviving children or their families." The testator died immediately after the date of his will, and left seven children. His widow died in December, 1861, and his son Charles died without having been married in July, 1867. Of the testator's other children, two died before Charles without ever having any issue, three (Frances, John and Samuel) died before Charles, having had issue, and one (William) was living and a defendant. The questions argued were; First, whether families of children who were strictly not "surviving" at the period of distribution could take. Secondly, what was the meaning of the word "family." The cases relied on in the argument sufficiently appear and are commented upon in the judgment. Mr. Greene and Mr. Langworthy, for the plaintiffs. Mr. Lindley, Mr. Bevir, and Mr. R. W. E. Foster, for defendants. Mr. Greene in reply. WICKENS, V.C., after stating the facts, said-It seems to me that this gift must be construed like that in King v. Cleveland (1), as a gift on the death of Charles without leaving issue at his death to the other children of the testator then living and the "families" of such of them as should be then dead. That this construction involves a grammatical inaccuracy is obvious, but it gives effect to the probable intention, and has strong authority in its favour. If King v. Cleveland (1) applies to this case the only question is as to the meaning of the word family. This is a popular and not a technical expression, and may mean several different. things, as was pointed out by Lord Langdale in Blackwell v. Bull (2) and by Kindersley, V.C., in Green v. Marsden (3). But the nature of the gift in the present case excludes many of the possible constructions. It is almost impossible, I think, to construe it as including anyone but blood relations in the descending line, that is, as meaning anything but descendants. The words of the division import (1) 4 De Gex & J. 477; s. c. 26 Beav. 26, 166; s. c. 28 Law J. Rep. (N.s.) Chanc. 835, 74, 76. (2) 1 Keen 181. (3) 1 Drew. 651; s. c. 22 Law J. Rep. (N.s.) Chanc. 1092. a separation between the families which excludes any such construction as that of heirs general or blood relations. There seem to be three different ways in which a gift of real estate to a family may be construed without going beyond the relations in the descending line of the person whose family is mentioned, namely, first, heirs of the body; secondly, children; and, thirdly, descendants of all degrees. The first of these constructions might possibly be considered as the preferable one, if the testator's presumable object had been to keep an estate together in a particular line. But it is certainly an unnatural construction of the word family as here used, and I do not think that either Wright v. Atkins (4) or any other decided case, makes it necessary to adopt it here. The question is, therefore, one between children and descendants. The former construction is supported by Sir W. Grant's dictum in Barnes v. Patch (5), and by Gregory v. Smith (6), Terry's Trusts (7), and many other cases. It is also, I conceive, in accordance with common usage; if the testator had spoken in ordinary conversation about one of his sons having a family or had mentioned the family of one of them, he would in nearly every case have meant the son's child ren. No doubt the cases which I have referred to, except Barnes v. Patch (5) (which is the case of a mixed fund), are cases of personal estate. But this distinction seems immaterial where the question is only whether the word family shall include a larger or smaller class of descendants. The remark that the testator has used the word "issue" in the very sentence in which the word family occurs is a very trifling circumstance, but leads more or less to the same result. On the other hand in Williams v. Williams (8), family was construed as descendants, and Mr. Jarman appears to have considered that in general the longer meaning would prevail in case of contest. No doubt in many wills it would be the (4) 17 Ves. 255; s. c. G. Cooper, 111. (6) 9 Hare 708. (7) 19 Beav. 581. (8) 1 Sim. N.S. 358. probable and convenient meaning, as, in many other wills, the probable intention would include all blood relations. But in the present will the convenient meaning seems to me to be children. For according to Lamphier v. Buck (9) the persons who would take here under the word "family are not required to survive the death of Charles without issue, or even to survive the brother or sister of Charles from whom they claimed. Therefore, in either construction every child of every brother of Charles living at the testator's death or born after it would take an interest, though as each family would take in joint tenancy as between themselves, this interest, in the absence of severance, might cease by death. And if the larger construction is adopted each descendant coming into existence during the particular estate would take with his father if alive. This seems to me an improbable intention, as Lord Cranworth thought in Williams v. Williams (8). I am quite sure that the testator in this case would not have desired that his great grandchildren (of whom he had. none at the date of his will), the offspring of living parents, should as soon as born become equally entitled with their parents. Possibly if he had had full knowledge, and had given the matter full consideration, he might have desired to provide for a great grandchild, the son of a deceased parent, who had took his share by death. But he would hardly have done so by making the share of one of his children go among that child's descendants of all generations who might come into existence during Charles' life. Probably he had no idea of looking beyond the generation of his own grandchildren (the remotest generation then existing) for any purpose whatever. I hold, then, that the gift in the events which happened gave one undivided fourth to the surviving brother of Charles, one to the six children of Frances Hillyard, as joint tenants, one to the surviving daughter of John, and one to the three children of Samuel, who also take as joint tenants. This assumes that no severance of any sort took place in Charles's lifetime. (9) 2 Dr. & S. 484. The bill and the evidence in support of it raise questions distinct from that of construction, but I think that these were not pressed at the hearing, so that the order is one for partition only. I may observe that the question which I have decided is one of law and not of equity, and that a partition suit being an exercise by the Court of administrative rather than contentious jurisdiction, it might not have been right that I should have dealt with it if anyone objected, but no one did object in fact, and I think that under these circumstances I do not go beyond the limits of my proper jurisdiction, and do what is best for the parties by now deciding. But it might be proper to preface the decree with a statement of the desire of all parties other than the infant that it should be decided here and now. Solicitors-Messrs. Emmets, Watson & Emmet, for plaintiffs; Messrs. Kingdon & Cotton, for the heir at law. HATHERLEY, L.C. 1872. Jan. 22, 26. Will-Construction NEWILL V. NEWILL. Gift for the Use and Benefit of Wife and Children-Joint Tenancy. A testator gave and devised his real and personal estate to his wife for the use and benefit of herself and all his children:Held, reversing the decision of one of the Vice-Chancellors, that the wife and children took as joint tenants. This was an appeal on the part of the plaintiffs from the decision of Vice-Chancellor Malins, reported 40 Law J. Rep. (N.S.) Chanc. 640, on the construction of the following clause in the will of Henry Newill "I give, devise and bequeath unto my wife, Anna Elizabeth Newill, for the use and benefit of herself and of all my children, whether born of my former wife, or such as may be born of her, all my pro perty of every description, real and personal, whether in possession, reversion, remainder or expectancy, at the time of my decease." The widow of the testator was living, as well as children by her and by a former wife. The Vice-Chancellor held, in accordance with the widow's contention, that she took a life interest in the whole, with remainder after her decease to the children as joint tenants, and the children appealed. Mr. Pearson, Mr. W. Pearson, and Mr. C. A. Holmes, for the appellants, relied upon Buffar v. Bradford, 2 Atk. 220; De Witte v. De Witte, 11 Sim. 41; Bustard v. Saunders, 7 Beav. 92; Crockett v. Crockett, 2 Philli. 553; s. c. 17 Law J. Rep. (N.S.) Chanc. 230; Bibby v. Thompson, 32 Beav. 647; Beales v. Crisford, 13 Sim. 592; s. c. 13 Law J. Rep. (N.S.) Chanc. 26; as shewing that the widow and children took as joint tenants. In and Armstrong v. Armstrong, 38 Law J. Rep. (N.S.) Chanc. 463; s. c. Law Rep. 7 Eq. 518; Re Owen's Trusts, Law Rep. 12 Eq. 316; Ward v. Grey, 26 Beav. 485; s. c. 29 Law J. Rep. (N.S.) Chanc. 74; Audsley v. Horn, 26 Beav. 195; s. c. 28 Law J. Rep. (N.S.) Chanc. 293; s. c. on App. 1 De Gex, F. & J. 226; s. c. 29 Law J. Rep. (N.S.) Chanc. 201; Jeffrey v. De Vitre, 24 Beav. 296; where the contrary was held, there appeared either an intention to settle, or there might be some objects of the testator's bounty who had not yet come into existence, in which case of course joint tenancy was impossible. The correct rule was laid down in Mason v. Clarke, 17 Beav. 126; s. c. 22 Law J. Rep. (N.S.) Chanc. 956, that where a testator gives property to a woman and her children, or to a man and his children, and there are children in existence, and nothing in the gift beyond, the children and the mother or the father take the property together, but if there are any superadded words which import a desire that the property shall be settled, the Court will, in noticing the words, infer a gift to the parents for life, with remainder to the children. Ward v. Grey (ubi supra), is the only exception to the rule. In Morse v. Morse, 2 Sim. 485, a trustee was appointed; and in Vaughan v. The Marquis of Headfort, 10 Sim. 639; s. c. 9 Law J. Rep. (N.S.) Chanc. 271, the bequest was to a father and his child"to be secured for their use." ren, Mr. Marcy, for the guardian of the infant children, supported the same contention. Mr. Glasse and Mr. B. B. Rogers, for the respondent, commented on the cases cited for the appellants, and referred to Dawson v. Bourne, 16 Beav. 29. THE LORD CHANCELLOR (on Jan. 26).— In this case the point is an extremely short one, turning upon the few words contained in the will which direct that all the testator's real and personal estate shall go to his wife, for the use and benefit of herself and all the testator's children. It has been urged that although in an ordinary case a gift by will to A, in trust for himself and B, C and D, would create a joint tenancy in the four, the case of a gift to a wife in trust for herself and her children is subject to an exceptional rule of construction, by which, on the ground of some presumed intention on the part of the testator, the Court will take hold of every small circumstance to enable it to arrive at what it conceives, a priori, to have been his natural intention, and will modify such a bequest into a bequest to the wife for life, with remainder to the children; and the authorities give some support to that argument. The case of De Witte v. De Witte (ubi supra) proves that the rule does not exist as an absolute rule of construction independently of other expressions in the will which may assist in the construction of the gift, and that case is approved of by Lord Cotten. ham, or, at all events, mentioned by him without disapproval in Crockett v. Crockett (ubi supra). Lord Cottenham in that case conceived that the ordinary rule must NEW SERIES, 41.-CHANC. : prevail, that the gift to the wife and children is a gift to them as joint tenants; but he says that a very slight indication of intention that the children should not take jointly with the mother has been thought sufficient to enable the Court to decree a life interest to the mother, with remainder to the children. I confess I think the authorities clearly shew that very small circumstances have been considered sufficient, and so I must assume, although it does not wholly commend itself to my own reason, and I go entirely upon the reasoning of those who have preceded me, that the testator's desire, if you are to guess at his desire before he has expressed it at all, would be to settle any fund which he might leave to his wife and children. The law does not do that the law gives a third to the wife and two-thirds to the children, as tenants in common; and a provision for the wife and children in joint tenancy does not seem, a priori, to be a very unreasonable mode of disposing of the small property which this testator had. It does not seem to me an unreasonable provision with regard to a small property of 5,000l. or 6,000l., that as each child comes of age he should carry away his portion, leaving the wife a smaller portion for herself and the other children. In this particular case it would seem to be very reasonable, because there are other children of the testator to be provided for besides his children by this wife, and the second wife being very young, the effect of giving her a life interest would, in the course of nature, be to keep out the children of the first marriage for a very considerable time after they have come of age from any benefit out of their father's estate. However, I must assume the rule to be that, although the ordinary construction would create a joint tenancy, yet if I find anything in this will which can indicate a different intention, it must be followed. There are several authorities which establish that rule, but in most of them reliance has been placed on one of two circumstances-either there has been a direction that the fund should be secured for the wife and children, and the Court has laid hold of the word "secured" as a 3 K |