or what course it might adopt, if it saw that the suit, which created the difficulty, was in fact prosecuted by the party who was resisting the fulfilment of his agreement, is quite another question.

[165] MONTAGU v. NUCELLA. Rolls. Jan. 26, Aug. 9, 1826.

A testator bequeaths a sum of stock to each of five nephews and nieces, or to their respective child or children; should any die without child, such share to revert to the residuary legatee each of the nephews and nieces who survive the testator, takes his or her legacy of stock absolutely. The same testator appoints as his residuary legatee E. P. M., his child or children; in case of his death without any such, the residuary interest to vest in the other five nephews and nieces then alive, share and share alike, and, as before, to each of their respective child and children; and in case of either of their deaths without any such issue, then his or her share to be divided amongst the survivors :-E. P. M., having survived the testator, takes the residue absolutely.

Edward Van Harthals, by his last will, dated in August 1814, after naming Edward Proudfoot Montagu, son of his deceased half-brother Gerard Montagu, one of his executors, made, among other bequests, the following:

"My said nephew, Edward Proudfoot Montagu, having behaved well in his profession in the navy, and having been harshly treated (if not even unfairly), I leave and bequeath to him, for future comfort, the sum of £15,000 capital in the consolidated 3 per cent. annuities, over and above any other advantage he may derive under this will. I leave and bequeath £10,000 capital in the [166] consolidated 3 per cent. annuities to each of my nephews and nieces, sons and daughters of my half-brother herebefore mentioned, or to their respective child or children (Note: The words, "or to their respective child or children," were an interlineation in the will), viz. George Montagu, Edgar Montagu, Magdalena Montagu, Louisa Montagu, and Mary Anne Montagu and, if at my death there shall not be a sufficient sum in my name for these and the beforementioned £15,000 of same stock to my nephew Edward Proudfoot Montagu, my executors are forthwith to purchase what wanting, that these transfers may be made as soon as conveniently can be done should any die without child, such share to revert to my residuary legatee." The will concluded with the following clause. "All my just debts being paid, these bequests and legacies (and such as I may hereafter add by way of codicil or memorandum), being complied with and acquitted, I appoint and nominate as my residuary legatee my before-named nephew Edward Proudfoot Montagu, his child or children born. in wedlock in case of his death without any such, then the residuary interest to vest in my other nephews and nieces before described, then alive, share and share alike, and as before, to each of their respective child or children, born in wedlock : and in case of either of their deaths without any such issue, then his or her share to be divided, share and share alike, amongst the survivors, or to vest in the last survivor, or his or their representative or representatives."

Edward Proudfoot Montagu, and the other five nephews and nieces named in the will, survived the testator. The bill was filed by Edward Proudfoot Montagu, against the executors, his own children, the five other nephews and nieces of the testator, and their children.

Questions were raised on three clauses of the will.

[167] First, under the bequest of £15,000 stock, Edward Proudfoot Montagu claimed that sum absolutely while some of the other parties insisted, that the £15,000 stock, from the mode in which it was connected, in the subsequent clause, with the bequest of £10,000 stock, must be subject to limitations similar to those which attached upon the latter legacies; and that, upon that construction, Edward Proudfoot Montagu would not take the £15,000 stock absolutely.

Secondly, the five nephews and nieces claimed their respective legacies of £10,000 stock absolutely; and against this claim it was insisted, that they took only life interests, with remainders to their children respectively.

Thirdly, under the residuary clause Edward Proudfoot Montagu claimed the residue absolutely. His children contended, that they took the residue either jointly with him, or in remainder, after a life interest in him; and the other nephews C. XVIII.-3

and nieces, and their children, claimed interests in it, in case of his death without child or children.

Mr. Sugden and Mr. Stephenson, for the Plaintiff Edward Proudfoot Montagu, cited Billings v. Sandom (1 Brown, C. C. 393), Hinckley v. Simmons (4 Ves. 161), King v. Taylor (5 Ves. 807), Turner v. Moore (6 Ves. 557), Cambridge v. Rous (8 Ves. 12), Webster v. Hale (8 Ves. 410), Crooke v. De Vandes (9 Ves. 197), Doe v. Sparrow (13 East, 359), Wright v. Stephens (4 Barn. & Ald. 574), Clayton v. Low (5 Barn. & Ald. 636). The point for which they principally contended was, that the interest given [168] to Edward Proudfoot Montagu by the residuary clause was absolute. His child or children" were mentioned merely by way of substitution, in case of his death in the life-time of the testator; and the direction that, in case of his death without child or children, the residuary interest should vest in the other nephews and nieces, was a further substitution, providing for the event of the death of Edward Proudfoot Montagu's children in the testator's life-time. The particle "or" had been omitted before" his child or children"; and the insertion of it would render the meaning of the clause quite plain.

Mr. Shadwell and Mr. Merivale, for the five nephews and nieces, argued, that by the bequest of the sum of £10,000 stock, to each of them, or to their respective child or children, the testator meant to give the legacies to such of his nephews and nieces as survived him, and to substitute, for such of them as died in his life-time, their child or children. The direction to transfer the stock as soon as it could be done conveniently, showed, that, according to his own conception of the effect of his will, there would be persons entitled to a transfer immediately after his death, and the absolute vesting of the legacies in possession was not to be postponed by the intervention of life interests.

Mr. Skirrow for the children of Edward Proudfoot Montagu, and of one of the other nephews, cited Hughes v. Sayer (1 P. Wms. 534), Keely v. Fowler (6 Bro. P. C. 309), Sansbury v. Read (12 Ves. 75), Hughes v. Hughes (14 Ves. 256). If Edward Proudfoot Montagu died in the testator's life time, his children were to take the residue; but if Edward Proudfoot [169] Montagu outlived the testator, he was to enjoy the residue only during his life. For when the will directs, “in case of his death without child or children, then the residuary interest to vest in my other nephews and nieces then alive, and their child or children," the reference, in point of time, cannot be to the testator's death, both because the expression" in case of his death," is in itself general, and because, in the subsequent part of the clause, a provision is made for the death of any of those other nephews and nieces without children. The previous gift had been only to the nephews and nieces then alive; and, therefore, when the event of their death is afterwards anticipated, it must be death at some subsequent period. The same words mark strongly the intention of the testator, that the five nephews and nieces, and their children, should take successively; and if that construction be adopted in one part of the residuary bequest, the preceding words ought to receive a similar interpretation.

Mr. Pemberton for the executors.

August 9. The Master of the Rolls [Lord Gifford]. The first question relates to the bequest to Edward Proudfoot Montagu; and upon it not much difficulty can be entertained. The words are, "I bequeath to him £15,000 capital, in the consol. 3 per cent. Bank annuities, over and above any other advantage he may derive under this my will." If there were nothing else in the will to affect this clause, no doubt could be entertained, that the bequest to Edward Proudfoot Montagu is absolute. But it is supposed that reference is made to this legacy, both when the testator, in the subsequent bequest of £10,000 stock to each of his nephews and nieces, or to their respective child or children, directs, if" any die without child, such share [170] to revert to his residuary legatee"; and also, when in the residuary clause, he says, "in case of his (Edward Proudfoot Montagu's) death, without any children born in lawful wedlock, then the residuary interest to vest in my other nephews and nieces before described, then alive, share and share alike, and as before to each of their child or children." Looking, however, at the original bequest, it is clear that the testator meant to give Edward Proudfoot Montagu the £15,000 stock, absolutely, without reference to his children; and there is nothing in the obscure language of the other parts of the will, that marks an intention to abridge his interest.

The next question arises on this clause, " I bequeath £10,000 capital in the consol.

3 per cent. annuities, to each of my nephews and nieces, or to their respective child or children; should any die without child, such share to revert to my residuary legatee." And the doubt is, whether the testator mentions the child or children of his nephews and nieces as substitutes for these nephews and nieces respectively, in case any of the latter should die in his life-time; or whether he did not mean to cut down the parents to a life-interest, and to give an interest in remainder to their children. Several cases have occurred, in which, where a bequest has been made to an individual, or to his child or children, or to some other person, the child, or that other person, has been considered as a substitute who was to take, in case the original legatee should die in the life-time of the testator. In Turner v. Moor (6 Ves. 557), the testator bequeathed " £15,000 to his nephew, Robert Dalrymple, or in case of his death, to his lawful issue; but if his nephew should be deceased at the time of his the testator's death, without leaving any lawful issue, then he [171] bequeathed to John Turner, or in case of his decease, to his lawful issue, £3000 of the stock." Robert Dalrymple died without issue in the testator's life-time, and the question arose on the bequest to Turner. In distinguishing it from the case of Douglas v. Chalmer (2 Ves. Sen. 501), the Master of the Rolls observes, "There the word was 'and'; which was relied on in Billings v. Sandom, as shewing, that both parties are to take a benefit, the parent and children. The words cannot be fully satisfied without giving each some interest, which can be only by giving an estate for life to the parent, and the capital to the children after the death of the parent. Here the word is' or '; both are not to take; but either the parent or the children in the alternative, and though in many cases or' has been construed' and,' you must show an intention requiring that. The natural import is to exclude the one from any participation of that which is given to the other." The same doctrine will be found in Crooke v. De Vandes (9 Ves. 197), and in other authorities.

6

Here the bequest is "to nephews and nieces, or to their respective child or children"; and a direction is added, that the transfer should be made, that is, to those who were to take under the will, as soon as could conveniently be done. The true construction is, to vest the legacies absolutely in the nephews and nieces who survived the testator, and that the child or children of nephews or nieces took only as substitutes for their parent or parents dying in the testator's life-time.

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The third question is upon the disposition of the residue. The testator appoints, as his residuary legatee, Edward Proudfoot Montagu, his child or children " words [172] which must be read or his child or children." The clause, if it had stopped there, must have been considered as substituting for Edward Proudfoot Montagu, his child or children, to be residuary legatee or legatees, in case Edward Proudfoot Montagu had died in the life-time of the testator. The will proceeds, in case of his death without any such," that is, in case of his death in the testator's life-time, without leaving children," the residuary interest to vest in my other nephews and nieces before described, then alive, share and share alike; and, as before, to each of their respective child or children "; and in case of the death of any of them without issue, his or her share is to go to the surviving nephews and nieces. This seems to be a second substitution of the nephews and nieces, and the children of such of them as should die before the testator, for Edward Proudfoot Montagu, and his child or children. First, Edward Proudfoot Montagu is appointed residuary legatee; in case of is dying in the testator's life-time, his child or children are to take the residue; in case of their death, during the testator's life, the other nephews and nieces become entitled; and if any of them die in his life-time, their child or children are to take the shares of the residue which the parent, if alive, would have taken, as was before directed concerning the legacies previously given.

Though the language of the will is obscure, I do not see enough to authorize me so to cut down the interests given by these clauses to the legatees, as to reduce them to mere interests for life. Looking at the whole of the will, the residuary clause must be construed as the previous clause was; and as Edward Proudfoot Montagu survived the testator, the residue, upon that construction, vests in him absolutely. If he had died leaving children who survived the testator, they would [173] have taken the residue; had they died in the testator's life-time, his other nephews and nieces, and their children, would have become entitled in a similar manner.

Before the cause was heard, Mr. Pemberton objected, that the questions could not properly be argued, till it was ascertained by a report of the Master, whether all the

children, who were in esse, of the Plaintiff, and of the other nephews and nieces, were before the Court, and that for that purpose, an inquiry ought to be directed.

Mr. Sugden answered, that it appeared on the face of the record, that all the children were parties to the suit, and that, unless some ground were laid for supposing that the statements to that effect on the record were inaccurate, and that there were children in esse, who were not before the Court, a reference ought not to be directed. The Master of the Rolls [Lord Gifford] was of opinion, that the case was ripe for hearing, without any such reference or report, as had been suggested on behalf of the executors.

[174] Between JOSHUA SMITH SIMMONDS SMITH, Plaintiff, and Sir JOHN FREDERICK, Bart., ARTHUR STANHOPE, THOMAS THISTLETHWAYTE, PETER STILL and Dame ELIZABETH MORSHEAD, Defendants. Rolls. July 19, 20, 21, 1825; Aug. 3, 1826.

A testator, having devised all the residue of his real and personal estate to trustees, upon trust, within six months after his decease, to raise £34,000, and having out of this sum made a provision for the maintenance of his two daughters, E. and S., during their minorities, directed, that a moiety of the interest arising from it should be paid to each daughter, on her attaining the age of twenty-one or marrying, for her separate use, during a term of ninety-nine years, if she so long lived; and that in case either of them died, leaving no child, or issue of a child, the whole of the interest should be paid to the survivor, for her separate use, during the remainder of the term, if she so long lived: and, subject to these and some contingent gifts, which never took effect, he bequeathed the £34,000 to his trustees upon trust, after the decease of his daughters, for such person or persons as should, under the subsequent limitations, be entitled to the residue. of his real and personal estate. In these subsequent limitations the trustees were directed, upon each of his daughters attaining twenty-one or marrying. to yield up to her a moiety of the residue of his real and personal estates, to hold the same to her and the heirs of her body, with remainder to the other daughter and the heirs of her body, remainder to his own right heirs. In a suit, instituted on behalf of the infant daughters, for the administration of the testator's estate, a decree was made for raising the £34,000; and, the personal estate proving insufficient, part of it was raised by the sale of portions of the real estate. Afterwards S., with the concurrence of the heir of the surviving trustee, suffered a recovery of her moiety of the lands to the use of herself in fee; the tenant to the præcipe being made, and the uses of the recovery, declared by a bargain and sale, in which both S. and the heir of the surviving trustee were conveying parties, but which was not enrolled within due time. At a subsequent period, E. suffered a recovery of her moiety of the lands. S. died leaving children, having received out of Court the moiety of the principal of that part of the charge which had been raised, but without having taken any steps to have the remainder of it raised. Semble, that E. and S. did not take quasi estates tail in the sum of £34,000. Held, that, if E. and S. took quasi estates tail in the £34,000, so as to be entitled to it absolutely, yet, under the circumstances of the case, the unraised portion of S.'s moiety of the charge was extinguished, and the unsold estates entirely exonerated. That an equitable recovery is valid, though the tenant to the præcipe is made by a bargain and sale not enrolled within due time. Effect, as to the extinguishment of a charge, of the conduct of parties who are interested both in the money and in the lands out of which the money is to be raised.

Sir Thomas Frederick, having only two children, Elizabeth and Selina, and being possessed of considerable personal property, and seised of real [175] estates, in the city of London, and in the counties of Middlesex and Surrey, made his last will, dated the 27th April 1770, and duly executed and attested. By it, after giving various legacies, he devised and bequeathed all the residue of his estates, as well real as personal, unto Charles Garth, Thomas Wood and Margaret Bathurst, and the survivors of them, and the heirs of such survivor, upon trust, within six months after his decease, by sale, mortgage, transfer, or otherwise, of all or any part of his estates real or personal, to raise the sum of £34,000, and, from time to time,

to place out the same at interest on securities, either in land, or in the funds, to be taken in the names of the trustees, or the survivor of them, and the heirs of such survivor, and to receive the interest, dividends or other produce thereof, as the same should become due. The testator then declared the trusts on which he gave this sum of £34,000 to his trustees. These were, in the first place, to pay the interest, not exceeding £1000 to Margaret Bathurst, until his two daughters, Elizabeth and Selina, should attain their respective ages of twenty-one years, or days of marriage, which should first happen, towards an allowance of £1000 per annum, which he, in a subsequent part of his will, gave to Margaret Bathurst for his daughters' maintenance and education; after his daughters should have attained respectively twenty-one years of age, or their days of marriage, to pay unto each of his daughters for their own use and benefit, for the term of ninety-nine years, if they should so long live, the interest to arise from the principal sum of £34,000 share and share alike, and to be, in case of the marriage of both or either of his daughters, as and for a separate and distinct provision for them and each of them, and as such, to be paid to them, and not to their respective husbands; in case either of his daughters should happen to die, leaving no child or [176] children, or lawful issue of such child or children, to pay to the survivor of his daughters, the interest to arise upon the principal sum, for the remainder of the term of ninety-nine years then unexpired, if she should so long live; if both his daughters should die, leaving no lawful issue, then, within six months after the decease of both his daughters, to pay unto Margaret Bathurst if she should survive his daughters dying without issue, as aforesaid, the further sum of £10,000, part of the principal sum of £34,000, and also the interest to grow due upon the residue thereof, for the remainder of the term of ninety-nine years then unexpired, if she should so long live. Subject to the payment of the several gifts, charges. incumbrances, and contingencies by him thereby charged and limited in the £34,000, he devised the same, or what should remain of the same, and, as the same should become clear and free of all or any part of the charges and incumbrances, unto Charles Garth, Thomas Wood and Margaret Bathurst, in trust, to pay the same, after the decease of his two daughters respectively, in moieties or in whole, as the case should be, unto such person or persons as should be entitled under the uses and limitations therein mentioned, to the residue and remainder of his estate real and personal, and upon the like uses and limitations.

As to the residue and remainder of his estates real and personal, the testator devised and bequeathed the same unto Charles Garth, Thomas Wood and Margaret Bathurst, and the survivor and the heirs of such survivor, upon trust, that they or the survivor, or the heirs of such survivors, should receive the rents, issues, dividends or other produce, for the use of his two daughters, until they should severally attain the age of twenty-one, or day of marriage, which should first happen, and then to pay to his daughter, Elizabeth, one moiety of all [177] such rents, issues, interests, dividends, and produce thereof, as should have been received by the trustees, or either of them, except such proportionate part thereof as should have been expended in the due execution of his will; and from and after his daughter Elizabeth's attaining the age of twenty-one, or her day of marriage, then to yield up to her a moiety of all his real and personal estate, not otherwise devised, to hold to her and the heirs of her body lawfully begotten; and for want of such issue, he devised the same unto his daughter Selina, and the heirs of her body lawfully begotten: and for want of such issue, to his the testator's own right heirs for ever. The testator next directed his trustees to pay to his daughter Selina, the other moiety of the rents, interest, dividends, and produce of the residue of his real and personal estate (subject to the same exception as the first moiety), on her attaining twenty-one, or her day of marriage as aforesaid; and then to yield up to her the other moiety of all his real and personal estates as aforesaid, to hold to her, and the heirs of her body lawfully begotten; and for want of such issue, he devised the same to his daughter, Elizabeth, and the heirs of her body lawfully begotten; and for want of such issue to his the testator's own right heirs for ever.

Charles Garth, Thomas Wood and Margaret Bathurst were appointed trustees and executors and executrix of his will.

Sir Thomas Frederick died on the 16th of December 1770; and on the 4th of April 1771, a bill was filed on behalf of his two infant daughters, who were his only issue and his co-heiresses, for the administration of his estate, and the execution