1. A father, on the marriage of his daughter, gives a bond to his son-in-law, with warrant of attorney collateral, conditioned for securing a sum of money payable by instalments, the last of which is payable the day after his death, without interest. Judgment is entered upon the bond, and the testator gives to the same daughter a legacy equal in amount to the sum due on foot of the judgment.— Declarations of the testator contemporaneous with the will are offered in evidence, to shew that the legacy was intended to be a satisfaction of the judgment:-Held, First, that the legacy is not a satisfaction of the judgment; and, Secondly, that the evidence of the testator's declarations could not be received. C. Hall v. Hill 27

2. Testator gave legacies to his daughters, to be paid on marriage, with interest from his death until same should be paid. He directed that if any of the daughters married a man who did not settle on her

a jointure of a certain amount, the interest only of the legacy should be paid to the husband during his life; and at his death, if the wife survived him, he directed the principal to be paid to her, and if she died in his lifetime leaving children, the principal to be paid to them; but if she left no children, the principal to be paid to his son, and to his surviving daughters equally; the shares of the latter to be paid at the same time, and subject to the same restrictions as their original shares. The residue of his estate "after payment of his legacies," he gave to his said son.— Two of the daghters died unmarried. Held (affirming a decree of Lord Plunket, C.), that the legacies to the daughters were vested. C. Vize v. Stoney 64 3. It is perfectly well settled, that where a legacy is given in terms making it contingent upon the legatee's attaining a particular age, if interest be given in the mean time, that alone will be sufficient to make it vested. Those cases establish the clear principle, that the testator is to be considered, in such a case, to have dispensed with the contingency by the gift of interest, and to have made the legacy vested. The reason (which is a very sound one) is this, that the testator cannot have intended the legacy to be contingent, because interest is only in lieu of the payment of the capital, and as a compensation for withholding it ;and when the testator gave it, therefore, he must have considered that the legacy would at some time be payable. If that be so, it is clear that words importing contingency do not operate, when the intention of the testator appears to the contrary. Is there any thing then so peculiar in the contingency of marriage that it is not to be liable to the same rule? Per Sir E. Sugden, C., in ibid.

72

II. Cumulative and substituted. 4. The Court considers, on general principles, either that the legacies are cumulative or substituted; but in neither case can you bring parol evidence to shew an intention against the construction which the Court puts on the instrument, be

5. It is perfectly clear on all the cases, that an addition to a former gift shall partake of the same qualities, on the ground that when you say you give it in addition, you mean to give it with the like circumstances, in every respect, as that to which it is an addition. So, when one legacy is substituted for another, whereever an intention is shewn not to alter the nature of the gift, but to lessen or increase the amount, then the substituted legacy shall correspond in every respect with the original. But there is no authority for holding, that because a testator in one part of his will has given an annuity to his daughter for herself and her children, and in a subsequent part of the will there is a gift of another annuity to all the children of the testator, that the latter shall receive the same construction as the former. Per Sir E. Sugden, C., in Heron v. Stokes 289 6. Testator by his will gave £2000 to his natural daughter, M. S., for her separate use, the interest to be applied to her maintenance and education. By a codicil, he gave her £3000 in addition to what he had given her by the will, using the same name and description as he had designated her by in his will. By a subsequent codicil, stating that he had not time to alter his will, and was anxious to guard against any risk, he charged all his estates and property with £20,000 for his daughter M. D., calling her by his own name. Held, that the £20,000 given by the second codicil, was intended as a substitution for the legacies given by the will and first codicil. C. Russell v. Dickson 339

7. By a second testamentary paper, incomplete in intention, but commencing with the words In the name of God, amen. I, S. M⚫D, of, &c., do think fit to make and publish my last will and testament as follows "-the deceased gave legacies to persons to whom he had bequeathed legacies of a greater amount and of dif

ferent nature, by a former testamentary paper, which was also in the form of a will. Both papers were admitted to probate as constituting together the last will of the deceased. Held, that the legacies given by the second testamentary paper were in addition to those given by the first. E. E. Armstrong v. Millar 659

III. Interest on.

8. In Leslie v. Leslie (Ll. & G. Temp. S. 1) the testator said nothing about interest, but the Court considered that there was a gift of interest implied from the relation in which he stood to the legatee, and considered him as giving interest by implication, and it gave effect to that implied intention by giving interest at £5 per cent. But the Court cannot, in the absence of any contract upon the subject, give interest where the party himself has not given it, except in those cases, such as Leslie v. Leslie, where by a general presumption of law, a gift of interest is considered as implied from the relation in which the parties stand towards each other, and in those cases the Court is at liberty to fix its own rate of interest. The case of Leslie v. Leslie appears to me to be well decided. Per Sir E. Sugden, C., in Purcell v. Purcell 560

1.

LEVARI.

See SHERIFF.

LIEN.

See SOLICITOR, III.

LIMITATION OF ESTATES.
See RENEWAL, 12, 13, 14.
TRUSTS AND TRUSTEES.
WILL.

At the disease of Thomas, the lands are
limited to his issue male, and in default
of such issue it is limited to the daugh-
ters, in words which, according to their
grammatical import, would give to all
the daughters, except an only daughter,
merely estates for life, but which in legal
construction would give them estates in
tail;
because it is perfectly well settled by
the case of Doe v. Martin (4 T. R. 39),
that where there is a devise to a class, and

words of limitation are used which expressly refer merely to a surviving or only member of that class, they shall be construed as equally applicable to every member of that class. Per Sir E. Sugden, C., in Rochford v. Fitzmaurice 379

2. I am not aware of any authority which would enable me to mould a limitation, which is admitted to be void to some extent, so as to support it in part, and to pick out from a general gift to persons successively answering the description in the will, a particular limitation for a person who happened to answer that description first. Now, it is admitted that the limitation in the will is void to some extent, because it might travel through minorities for centuries, for there might be a succession of heirs male who might all die under twenty-one; and centuries might elapse before any one might be entitled to the absolute interest in the chattels. To some extent, therefore, it is admitted to be void. Per Sir E. Sugden, C., in Ker v. Lord Dungan350, 351 3. I confess I never understood the grounds of that reversal, in Tollemach v. Coventry (2 Cl. & F. 611), of Lord Deerhurst v. The Duke of St. Alban's (5 Mad. 231); because it appears to me as difficult to make one take as another and both were living within the time limited by the rule against perpetuities. That reversal, however, is a decision of the House of Lords, although resting entirely on the authority of the noble and learned Lord Brougham, who pronounced the judgment, and must, of course, be followed in a similar case; and it prevents any similar limitation from going beyond the first person who takes after the expiration of the life estates. Per Sir E. Sugden, C., in ibid

non

354

6. There is the remainder after Harman's life estate to the heirs of his body, and then there is the limitation to Thomas for life, and, at his death, to his issue. Now, the limitation to Harman for life, and at his death to the heirs of his body, if it stood unaffected by any thing else, would, undoubtedly, be an estate tail; and even if you interpose an estate to trustees to preserve contingent remainders, as by construction you must, that would not alter the construction. That doctrine is now well settled, although it is rather singular, and if you look back to the history of it, you will find it was not established without much doubt and hesitation. Ibid

LIMITATIONS, STATUTES OF.

See DEBTOR AND CREDITOR, 1.
JUDGMENT, 4.

I. Generally.

1. The 8 G. 1, c. 4 (Statute of Limitations), does not extend to Crown bonds or recognizances, although the Crown is but a trustee in them for a subject. C. Regina v. Bayley 142

A demurrer taken to a plea of payment founded on that statute, put in to a scire facias on a receiver's recognizance, was therefore overruled. Ibid

3. Semble.-Charity estates are not within the recent Statute of Limitations, (3 & 4

5. It was this Act (the 8 G. 1, c. 4) which, strictly speaking, introduced for the first time, the doctrine of adverse possession, which cannot in strictness have any operation, unless it refer to the Act. Before the passing of that Act, possession could not be said in strictness to be adverse to the title of the right owner, because, although his remedy might be barred, his right was unaffected by it. But now possession for twenty years after the right of the real owner has accrued, without acknowledgment of title, gives both the land and the right to it, and the title is transferred at the time when the remedy is barred, and every scintilla of right is lost to the former owner, unless the case is brought within one of the exceptions in the sta tute. Per Sir E. Sugden, C., in ibid

197 6. When a party sets up as a defence the Statute of Limitations, he must be prepared to pay the costs of it, if unsuccessful. Per Sir E. Sugden, C., in ibid

215

7. In order to put an end to any further question upon the subject, it may be as well that I should express my opinion upon a point which has been discussed with reference to the effect of the provision as to interest upon judgments in in the recent Act of the Queen (3 & 4 Vic. c. 105). The words are, "That every judgment debt due upon any judgment not confessed or recovered for any penal sum for securing principal and interest, shall carry interest at the rate of £4 per cent. per annum, from the time of entering up the judgment, or from the time of the commencement of this Act, in cases of judgments then entered up, and not carrying interest until the same shall be satisfied." From these

8.

words it has been inferred that the judgments comprised in that section are not subject to the provisions of the preceding Statute of Limitations. Although the point does not arise in the present case, it is as well to settle it, so far as any thing I say can have that effect. I must say, therefore, that I think there is no foundation for that opinion. Per Sir E. Sugden, C., in Henry v. Smith 509

II. What prevents the Bar of the
Statutes.

When the charge on the real estate for payment of debts and legacies was only contingent upon the event of the personal estate of which the testator died possessed, proving insufficient, and there. was no allegation in the bill, that the personal estate was deficient; Held, that the plaintiff, who was a legatee, failed to shew that the real estate was at all liable, or that there was any trust thereof to prevent the operation of the Statute of Limitations against her demand. R. Cocking v. Golding

169

Then it comes to a mere question of fact in the present case, whether there has been a sufficient acknowledgment of title within twenty years; and in deciding that, I must take upon myself the functions both of Judge and Jury. I have read over the correspondence between the late Mr. Richards and the plaintiffs' Solicitor very carefully, and I have read, in connection with it, the draft deed of submission; and I am perfectly satisfied that the correspondence amounts to a sufficient acknowledgment of the plaintiffs' title within the meaning of the Statute, and that the draft deed does not destroy the effect of that submission. The whole correspondence may be described thus:Mr. Richards was aware, from the commencement, of Mr. Woulfe's opinion, that the Society had no title, and that put him in possession of the fact that their title was at least doubtful. He began the correspondence with a full knowledge of the fact; and in all the other portions of it I find no question raised as to their title, except in the last; and what he says there amounts to