shall make the 5007. a satisfaction of her claim to everything but the 5007. Suppose the property had consisted of leaseholds having sixty years only to run, or of mines, and the leases had expired or the mines become exhausted, would one upon her marriage then be entitled to 5001.? The true construction I take to be this :-The marrying daughter is to take 500l. and no more, and the two remaining unmarried are then to be the sole possessors of all the property.] If the testator had intended to limit it to a marriage in his lifetime, he would have said so. [MAULE, J.-I understand him to mean that his three unmarried. daughters should take, at his death, as tenants-in-common: but, that, if one should be married at that time, the other two, remaining single, should take the whole, paying 500l. to their sister.] Suppose two of them should get married? [MAULE, J.-Possibly there might be more difficulty in construing the will in that case. CRESSWELL, J.-It is quite consistent with the 24th section of the 7 W. 4 & 1 Vict. c. 26, that the testator may have thought he should live for twenty years. *CROWDER, J.-My impression was that that section meant to *82] place real and personal property on the same footing.] The codicil, it is submitted, points at a thing which is to be done, not at the time of the death of the testator, but at the time of the marriage of one of the three daughters, whenever that might happen, the others remaining single; the estate in that event to vest in the two. If the court entertain a clear impression against the plaintiffs' construction of the codicil, it will be unnecessary to consider the other point.

Byles, Serjt., and Coxon, were not called upon to support the rule. JERVIS, C. J.-I am of opinion that this rule ought to be made absolute. This is an ejectment. The defendant admits that the plaintiffs are entitled to one-third of the property sought to be recovered, and he defends for the remaining two-thirds. If the codicil, taken in con

nexion with the will, does not operate to give to the testator's daughters Anne and Harriet the whole estate, either as tenants-in-common or as joint-tenants, the defendant is well defended, because it is admitted that the plaintiff Anne Lloyd, and the defendant as the heir of Harriet, take each one-third, and consequently the plaintiffs cannot succeed. That being the correct view of the case, it is unnecessary to consider whether the codicil created in the two daughters remaining unmarried an estate as tenants-in-common or as joint-tenants; because, in the events which have happened, the codicil did not come into operation at all. The testator by his will gave to each of his three unmarried daughters, named, one-third of his real and personal estates, as tenants-in-common (as to the realty) in fee. Martha, therefore, took by the will an absolute estate in fee-simple as to one-third. Mr. Welsby *contends, that, by force of the codicil, the estate which once was *83] in Martha became divested by her marriage. For such a purpose very clear and unequivocal words would be required. But there

is another objection, which was very forcibly put by my Brother Maule in the course of the argument. By the will Martha was to take, on the death of her father, a third of the freehold in fee, and an absolute interest in a third of the personalty. Now, whether the codicil contemplated the marriage of Martha within twelve months after the death of the testator, or a marriage generally, in either view the plaintiff is wrong. It is impossible that the testator could have meant that the three daughters should take at his death each a third of the freehold as tenants-in-common in fee, and an absolute interest in a third of his personal estate, and that, in the event of one of the daughters marrying at any time,-say after having enjoyed the third of the freehold for twenty or thirty years, her interest should be defeasible upon her sisters (they remaining unmarried) paying her 5001. Mr. Welsby says it is difficult to suppose that the testator could have contemplated the marriage of a daughter in his lifetime, because it would be impossible to put a sensible construction upon the will and codicil if two of the three should so marry. But I must confess I do not appreciate the difficulty. The words of the codicil are,-"It is my desire, that, in case one of my daughters named in this my last will should get married, the two then remaining single shall, at the end of twelve months after my decease, pay to the married sister the sum of 500l. in lieu of any further claim whatsoever on my property; and the two surviving daughters then [that is, at the time of the marriage of the third] single above named, to be sole possessors of all my property named in this my last will and testament, and to their heirs for ever." This would seem to mean that the two single daughters *surviving the testator,—the [*84 other having married in his lifetime,—should take the whole, paying 500l. to the married sister: and this, as it seems to me, amply satisfies all the words of the codicil; and I should have no difficulty in putting that construction upon it, if it were necessary. But it is quite clear that the marriage contemplated must be one which was to take place within twelve months after the testator's death, and therefore the circumstances have not occurred upon the occurrence of which the codicil would attach.>

MAULE, J.-I also am of opinion that the rule should be made absolute. It is admitted by the defendant that the female plaintiff was entitled under the will of David Davies to one-third of the property in question; and it appears to me that the will is in no degree operated upon by the codicil, which was intended to take effect only upon the happening of an event which has not happened. By his will, the testator makes a simple disposition of all his property to his three then unmarried daughters, Anne, Harriet, and Martha, as tenants-in-common in fee; and he appoints them executrixes. He afterwards makes a codicil in which he provides, that, in case one of his daughters named in his will should get married, the two then remaining single should, at

the end of twelve months after his decease, pay to the married sister 5007. in lieu of any further claim on his property; and that the two surviving daughters then single, and their heirs, should be the sole possessors of all his property. The will being a disposition of all the testator's property, the codicil is also a disposition of the whole property, which is to be substituted, in a certain event, for that contained in the will, that event being, the marriage of one of his daughters. On that event happening, the daughter marrying was to have from the others remaining single 500l., which was to be in lieu and instead of any further or other claim, and the whole remaining property was then *85] to go to the other two. The testator, therefore, contemplated as well by the will as by the codicil a complete disposition, to operate upon the whole of his property,-only the one to be substituted for the other, in the event mentioned. The codicil, therefore, as it seems to me, was intended to take effect, if at all, at the time when it should become necessary to ascertain whether the will or the codicil was to operate, when it was first to be ascertained who was to take the property. Then, is the time, as it seems to me, to inquire whether or not the event has taken place which was to have the effect of substituting the disposition contained in the codicil for that originally contained in the will. This is not like the case of an estate going over upon a condition. The language of the will and the codicil show that the latter was intended to take effect at the time at which the will would have taken effect if there had been no codicil. The nature of the event,-as to time and everything else,-must be such as to take away all operation from the will, if the codicil was to operate. We must put such a construction upon both as will if possible effectuate the testator's intention. I think the proper construction of the will and the codicil, taken together, is, that the contemplated marriage, in order to give any operation at all to the codicil, must take place before the time when the will or the codicil could take effect, viz. before the death of the testator. That, no doubt, is open to some objection: but, upon the whole, I think that the marriage intended was a marriage which was to take place in the lifetime of the testator. It is quite possible that the testator might have had some vague notion that his will would not come into operation until the expiration of twelve months after his decease: and, if that were so, it might be that he contemplated the marriage of one of his daughters within the same period. It is unnecessary, however, *86] to speculate upon that, inasmuch as in neither event could the codicil have effect, seeing that the marriage of Martha did not take place until more than twelve months had elapsed from the death of the father.

CRESSWELL, J.-I quite concur in the view taken by my Lord and my Brother Maule. The testator unquestionably intended, either by his will or by the codicil, to dispose of the whole of his property imme

diately upon his death. The event not having happened upon which alone the codicil was to take effect, the will is the only testamentary disposition of the party. Even if the true construction of the codicil be, that the contemplated marriage should happen within twelve months after the testator's decease, the same result will follow, because the marriage of Martha did not take place until after that period. The rule must, therefore, be made absolute to enter a verdict for the defendant.

CROWDER, J.-I am much disposed to think that the testator, foreseeing the marriage of one of his three daughters at no very distant period, contemplated that that event might take place at some time between the 23d of August, 1844, the date of the codicil, and twelve months after his decease. He says, "It is my desire that, in case one of my daughters named in this my last will, should get married, the two then remaining single shall, at the end of twelve months after my decease, pay to the married sister the sum of 500l. in lieu of any further claim whatsoever on my property; and the two surviving daughters then single above named, to be sole possessors of all my property named in this my last will and testament, and to their heirs for ever." It may be, as my Brother Maule suggests, that, in order to make the codicil take effect, the marriage must take place *during the life[*87 time of the testator. But, at all events, if it might take place after the testator's death, it is clearly limited to twelve months after that period. At the time the 500l. is to be paid, there must be the married sister. Unless there is such, the codicil cannot take effect. In my view, therefore, in the events which have happened, the codicil can have no operation at all.

Rule absolute.

ELSAM and Another v. DENNY and Another.

June 12.

The word "retire" in reference to a bill of exchange, is susceptible of various meanings, according as it is applied to various circumstances: if the acceptor retires the bill at maturity, he takes it entirely from circulation, and it is in effect paid; but if an endorser retires it, he merely withdraws it from circulation in so far as he himself is concerned, and may hold it with the same remedies as he would have had if he had been called upon in due course, and had paid the amount to his immediate endorsee: and this latter is the ordinary meaning of the word "retire."

THIS was an action by the endorsees against the acceptors of a bill of exchange.

The declaration stated, that certain persons trading under the name, style, and firm of M. Evans & Co., on the 17th of March, 1853, by their bill of exchange, now overdue, directed to the defendants, required the defendants to pay to their order 4771. 188., for value received in consignments outwards, three months after the date thereof; and the

defendants then accepted the said bill; and the said persons so trading as aforesaid endorsed the same to the plaintiffs; but the defendants did not pay the same.

The defendants pleaded, amongst other pleas, that, after the alleged endorsement, the said drawers, at the request and on behalf of the defendants, handed over and paid to the plaintiffs, in order and upon the terms that they should thereupon retire and deliver up to them, the said drawers, the said bill of exchange, discharged of all claim thereon by the plaintiffs against the *said drawers and the defend*88] ants, a sum of money equal in amount to the sum specified by the said bill, or at any time to be recoverable thereupon, which sum of money the plaintiffs received from the said drawers upon the terms aforesaid, and ought thereupon, as they well knew, to have so retired and delivered up to the said drawers, who were entitled thereto, the said bill, discharged as aforesaid, and thereupon all claims of the plaintiffs against the said drawers and the defendants upon the said bill were actually satisfied and discharged out of such money; and that the plaintiffs, wrongfully, and in fraud of the said terms, and against the will of the drawers, and not as trustees for them, had continually hitherto retained, and then put in suit the said bill in this action. Issue thereon. The cause was tried before Jervis, C. J., at the sittings in London after last Michaelmas Term. The facts which appeared in evidence were as follows:

:

On the 26th of February, 1853, one Evans drew upon the plaintiffs a bill at four months for 4771. 188., which they accepted for his accommodation, upon an understanding that he should give them in exchange an acceptance of Denny & Clarke, the defendants, for the like amount. Evans took the plaintiffs' acceptance to the defendants, and, on the 17th of March, 1853, drew upon them, at three months, for 4777. 188., the bill for the recovery of which this action was brought,-which they accepted for his accommodation, and which he handed to the plaintiffs. The plaintiffs got this last-mentioned bill (which would become due on the 20th of June, 1853,-nine days before their own acceptance in favour of Evans), discounted by Messrs. Overend, Gurney & Co.

Evans was deeply indebted to Denny & Co.; and Denny & Co., who were in difficulties, suspended payment in April, but afterwards resumed. *Early in June, before either of the above-mentioned bills had *89] become due, the plaintiffs being anxious about the defendants' acceptance, it was proposed by Evans's clerk that Evans should draw upon the plaintiffs another bill, for the purpose of providing funds to take up the defendants' acceptance. The plaintiffs assented to this proposition, but required that it should be put into writing; and accordingly the following document was drawn up, signed by Evans, and sent to the plaintiffs: