grounds, property would be very vague. The principles were not first laid down by Lord Thurlow, but extracted by him, with great wisdom, from those on which preceding Chancellors have decided questions of this nature. I wish to refer to a case which I have not heard cited, Richardson v. Chapman, which was first heard before Lord Northington, and afterwards in the House of Lords. (5 Brown's Parlt. Cases, 400 [7 vol. 318, octavo edition].) It is accurately stated in 1 Burn's Ecclesiastical Law, tit. Bishops, which says, that, in this court, a request in a will is, at this day, imperative; "but there ought to be a particular person named, and pointed out." Let us see whether this rule be supported by the cases, or whether it be impugned by any. It is sufficient to refer to Harland v. Trigg, and Wynne v. Hawkins. With respect to the other cases cited, there is one very apposite to the question; it is 2 Eq. Abr. 291. Palmer v. Scribb, where similar terms to those used in this case were held too general to amount to a devise. Though this book is not a book of the first authority, I must be guided by such cases as stand in point there; [46] and particularly, by a case which contains so much sense as induces me to rely upon it, in conjunction with the other authorities. With respect to the authorities cited on the other side, Bland v. Bland falls within the rule. The property was not certain, being the whole of what he should be seised of at his death, and leaving him an absolute control over the property during his life. The case of Cunliffe v. Cunliffe [Amb. 686] breaks in upon my opinion; and I admit, the decree I shall pronounce is in contradiction to it. It would be absurd to lay a stress upon recommend in the one case, and not upon it is my dying request in the other. The ground upon which I get rid of that case is, that the Lords Commissioners, in delivering their opinion, rested upon Bland v. Bland, and upon Pynsent v. Pynsent. This latter is not found, but, upon the note we have of Bland v. Bland, we may say that case was not like Cunliffe v. Cunliffe. Certainty of the property, though one of the sine qua nons, was wanting. As to Glynn v. Harding, it goes the whole length of the present case. The reasons are not fully reported by Atkyns, but the words were, I desire, and they were held imperative. Therefore, where the circumstances, of certainty of the property, and of the object to whom it is given, concur, all the cases warrant me in saying it is a trust, except Cunliffe v. Cunliffe, which cannot be relied upon for the reasons mentioned. In Le Maitre v. Bannister, the words were, to do justice to A. and her children; but, if any circumstances should occur to make it necessary, the devisee was to be at liberty to dispose of it." There, one of the circumstances was wanting; for the devisee could dispose during his life. Mr. Ambler has pressed the difficulty, and impracticability of carrying the trust into execution. That argument has no weight with me; because, if an express trust had been raised, it must have been executed, though it would have been attended with all the same difficulties and impracticabilities stated in this case. However arduous the trust was, the court must have carried it into execution. The argument that, being once given, it cannot be given over, upon the reason that a fee cannot be mounted upon a fee, is begging the question; for words creating a fee have, in innumerable cases, been cut down by subsequent words to an inferior estate. I think no stress can be laid on the words executors, administrators, and assigns: it would be equally reasonable to lay stress upon the former express estate for life. [47] These reasons and authorities induce me to pronounce, that the words are imperative, and create a trust in favour of the descendants of Anne Coppinger.

66

As to the 2d question, the cases Mr. Ambler has cited are conclusive. Wherever the will is made, the legacies must be paid in the currency of that country; unless the testator had made a separate distribution of his English and Irish property. (Vide Saunders v. Drake, 2 Atk. 465. Et vide Pipon v. Pipon, Ambler, 25, and Malcolm v. Martin, 3 Bro. C. C. 50.) I therefore declare that the unascertained legacies must be paid according to Irish currency.

Upon the 3d question as to the child in ventre sa mere, I am of opinion, against Mr. Bumstead's client, that, according to Lord Hardwicke's reasoning in Ellison v. Ayrey, 1 Vesey, 111, the child not being in esse at the time, cannot take the legacy.

In respect to the 4th question in behalf of the eldest child, being a daughter, many cases have decided, that a son who takes the estate, though not so by primogeniture, shall be held an eldest child, 2 Vesey, 210, is in point to this; the daughter therefore, though eldest, shall take as a younger child. (Reg. Lib. 1785, B. fol. 410 b.) (See also Heneage v. Hunloke, 2 Atk. 456.)

(1) The decree on this point affirmed, on appeal, by Lord Thurlow, C., 2 Bro. C. C. 226. For the authorities on this head, see the Editor's notes to the cases of Wynne v. Hawkins, and Harland v. Trigg, 1 Bro. C. C. 142, 179. Upon the principal case, &c., on this point, see in Malim v. Keighley, 2 Ves. jun. 533. Pushnan v. Filliter, 3 Ves. 9. Brown v. Higgs, 5 Ves. 504, and 8 Ves. 573, 574, where Lord Eldon, C., says (inter alia).-" Mr. Ambler and myself were not quite satisfied with that decree, and it came before Lord Thurlow: but the opinion of my younger days is not that " which I now hold." See also Morice v. Bp. Durham, 10 Ves. 536.

(2) The point as to what interest was to be allowed on these legacies was not argued in the case. See in Malcolm v. Martin, 3 Bro. C. C. 53, and in Bourke v. Ricketts, 10 Ves. 334. It thence appears, although it is unnoticed in this report, that Lord Kenyon, M.R., gave interest at 4 per cent., agreeably to the common course of the Court. Sir W. Grant, M.R., determined, in Bourke v. Ricketts, 10 Ves. 330, in like manner, that although the legacies were to be paid in the currency of the country where the testator resided, yet there being assets in each country, and the legatees living in England, they were only entitled to English interest.

In the principal case, the decree (as in Reg. Lib.), after the usual direction, that the Master was to allow interest at 4 per cent. on the general legacies, proceeded thus :But as to such legacies as in the said will and codicil as are not expressed to be payable "either in English or sterling money, his Honor doth declare that the same are to "be considered as payable according to the value of Irish currency," without any further directions in respect of interest: so that of course they would have interest at the common rate of 4 per cent. under the usual direction above noticed. R. L.

Ex parte WHITE in the Matter of WHITE. Lincoln's Inn Hall, 28th March [1786]. Bankrupt's petition for a meeting to take his surrender dismissed.(1)

This was a petition by the bankrupt, praying that the Chancellor would appoint a meeting of the commissioners that he might surrender; and stating, that, a few days before he was declared bankrupt, he was obliged to go abroad for his health; and that, from the time of his hearing of the commission till he came over, he had been extremely ill. It was a partnership bankruptcy, and the two other partners surrendered in time.

When this petition came on before, Lord Chancellor ordered it to stand over to see what the assignees had to say. They now appeared by counsel, and did not oppose the prayer of the petition; but made an affidavit, that the bankrupt had been seen a few days before he went abroad, apparently in good health; [48] and that the son of the bankrupt had, at the last meeting, said the petitioner would not surrender.

Lord Chancellor. Ordering the commissioners to appoint a meeting, that the bankrupt might surrender, would not avoid the effect of the statute. It only has the effect of declaring the opinion of the court, that the bankrupt had no intention of keeping out of the way fraudulently. But my opinion in this case is, that he did purposely keep out of the way, and that he is perjured when he says he went abroad for his health. Petition dismissed.

(1) If the bankrupt has neglected to surrender by an innocent default, the Lord Chancellor will order that the Commissioners be at liberty to appoint a new day for his surrender. Fuller's case, 10 Ves. 183, and Ex parte Higginson, 12 Ves. 496. But such order does not clear the bankrupt from the felony under the statute, except as it shews the Lord Chancellor's favourable opinion of the case. Ex parte Johnson, 14 Ves. 40. Ex parte Jackson, 15 Ves. 119. See also Ex parte Grey, 1 Ves. jun. 195.

Ex parte ADAMS in the Matter of WILKS. [1786.]

Petition to stay a certificate, in order to give a creditor an opportunity of proving his debt. The petitioner did not account for not having applied before; upon which the Chancellor Thurlow] dismissed the petition.

Ex parte GRAHAM in the Matter of GRAHAM. [1786.]

Petition to appoint a meeting for bankrupt's surrender and examination, after the commissioners had been dissatisfied with former answers allowed.-Expences out of the estate.

Petition by a bankrupt for an order to the commission to appoint a meeting to receive the bankrupt's further examination.

The Lord Chancellor had before made an order for the commissioners to appoint a meeting, that bankrupt might surrender and be examined; and when he applied before the commissioners, they were dissatisfied with his answers, and committed him. He now states, that he has recollected circumstances more particularly, and is desirous to complete his examination, and be discharged out of custody; but the commissioners refuse to appoint a meeting.

[49] The assignees opposed the prayer of the petition, so far as it required the expence of the commissioners' meeting to be paid out of the estate, alleging, that as this extraordinary expence arose from the bankrupt's own misconduct, he ought to pay it himself.

Lord Chancellor [Thurlow].-It is a commitment, till conformity; the form of the commitment is conclusive. The meeting must be at the expence of the estate. The bankrupt has no estate, or is supposed to have none.

The commissioners must appoint a meeting.

Ex parte BOULD in the Matter of BOULD.

On illness a similar order [as see previous case].

Petition to order the commissioners to appoint a meeting for the bankrupt to surrender; the bankrupt made an affidavit, that a commission was taken out against him and his partners on the 5th January; that he left his house on the 3d January, and on the was taken ill in London, and had been confined to his bed ever since. That a few days before the last meeting, he procured his apothecary to write to the solicitor under the commission, and tell him the circumstance, and request his advice how to act. The solicitor wrote an answer, that the petitioner must apply to his attorney, who would tell him how to proceed.

The bankrupt did not receive this letter till the time for the last examination was over. This affidavit stated, that his partners had surrendered, and all the effects were in possession of the assignees, and that he had not any of the effects himself.

The assignees appeared by counsel, but neither opposed nor consented.
Lord Chancellor [Thurlow] made the order.

[50] Ex parte LONG.

After a dividend, creditors proving debts, are ordinarily, to take only pari passu; but if the assignees have paid other creditors, equal to those who have proved; they ought to do the same with those who apply.

A dividend had been declared, and paid to such creditors as proved.

This was a petition by other creditors, to be paid as much out of the bankrupt's effects, as would make them equal to those creditors who had proved previous to the declaring a second dividend.

Lord Chancellor [Thurlow] said,─When creditors, who have not received a former dividend, go before commissioners, in the first instance, to prove their debts, they should only be paid future dividends pari passu with the other creditors. But where they apply to the court, in the first instance, it is incumbent upon them to make out a ground for not having come before, a special representation of circumstances, which circumstances create a peculiar justice to extend the rule further than pari passu. His Lordship ordered it to stand over for further affidavits; but it being urged that the assignees had paid other creditors, equal to those who had proved, he said he took the law to be, that if a debt is proved after a dividend, the creditors are to take pari passu; but if the assignees have been in a habit of paying otherwise, they must do it without order and dismissed the petition.

Ex parte PAGET.

Lord Chancellor [Thurlow] held, that commissioners, in the country, could not, on any account, take more than 20s. for their attendance, and ordered charges beyond that sum to be struck out of the bill.

[51] EASTER TERM, 26 GEO. 3, 1786.

PITT against JACKSON. [5th, 6th, and 8th May 1786.]

[See Monypenny v. Dering, 1850, 7 Hare, 590,-2 De G. M. & G. 173; Juttendromohun Tagore v. Ganendromohun Tagore, 1872, L. R. Ind. App. Supp. 77.] Vide S. C. on Bill of Review, 2 Ves. jun. 698, &c.-Master of the Rolls for Lord Chancellor.-Purchases were to be made with the trust-money, but no time limited. The husband made a purchase,(1) which he [by will declared should not be subject to the uses; the wife died, and no other purchase was made. The Court, on this occasion, (1)] held, that the estate should not be so applied; but that the personal estate was liable for the breach of contract. Under a power to appoint to children; an appointment to a child for life, with remainder to her children, (2) is not valid, but the excess is void. The whole shall not be considered as unappointed, but be appointed cy pres. (Vide Robinson v. Hardcastle, 2 Bro. C. C. 22 & 344, and 2 T. R. 241. For observations on the principal case, &c., see also Bristow v. Warde, 2 Ves. jun. 336, 348, 364. Crompe v. Barrow, 4 Ves. 684, 685. Brudenell v. Elwes, 7 Ves. 382, 388, 390, &c. See also 1 Ball & Beattie, 94, and the several references.) The codicil revoking a legacy of £40,000, the legacy in fact being only £30,000, and £10,000 an appointment, revokes the appointment. A testator, at the time of making hist will, is possessed of £7000 navy bills; at his decease, he has a much larger quantity, he recites in his will that he had about £7000, quære what sum shall pass; but referred to the Master. (Held afterwards, on the Master's report, to be a specific bequest, passing all which had been purchased with those bills. Vide 3 Bro. C. C. 160.) A transaction between a man and his wife as to the purchase of her separate estate, but not carried into effect, shall not now be so; but his personal estate shall account for rents and profits (2); and that estate descending, the children who take it shall elect, as between it and their claims under the will.

By settlement, previous to the marriage of Pinckney Wilkinson with Mary Thurlow, it was covenanted among other things, that part of the estate of Mary Thurlow, consisting of securities for money, amounting to £10,000, and £5000 paid by said Pinckney Wilkinson, together with £5000 to be paid by him, within ten years, or, in case he should happen to die, by his executors, &c., within one year, should be laid out in the purchase of lands, to be settled to the use of Pinckney Wilkinson for life, without impeachment of waste, remainder to Mary Thurlow for life, in bar of dower, remainder to the use of the children of the marriage, subject to such powers, limitations, and provisoes as Pinckney Wilkinson by deed, or will, should appoint, and, for want of such appointment then as Mary Thurlow should appoint, and in default of such appointment, to the use of their children, and in default of issue, to Pinckney Wilkinson in fee. Before the purchase, the trustees had powers to call in, and replace the funds in which the sums were invested; which powers were executed by frequent removals of the stocks.

The trustees in this deed were all since dead, the executor of the survivor was before the court. By deed, bearing even date with this deed, Mary Thurlow had granted (in pursuance of the agreement between the parties) all her real estate, and covenanted to surrender her copyholds, and assured all her personal estate (save the securities aforesaid) to trustees to her sole and separate use, and disposal.

[52] The marriage took place, and there were several children, who all died under twenty-one, during the life of the husband and wife, except Mary, the wife of Smith, and Ann, the wife of Thomas Lord Camelford.

Mary married Smith, in the life-time of the father and mother, without their consent; in consequence of which, they gave no portion upon her marriage : of that marriage there are issue four children, who are defendants.

Pinckney Wilkinson in 1752 purchased of the heirs of Evirilda Thornhill, for the sum of £16,300, the manor of Polestead Hall, otherwise Westgate in Norfolk, and other premises, which were conveyed to Mark Close, as a trustee for Pinckney Wilkinson, his heirs and assigns. Close is dead, without making any conveyance to Pinckney Wilkinson his eldest son, and heir at law, was before the court.

Pinckney Wilkinson, 1st August 1768, made his will, duly attested, to pass real estate, in which, after reciting the agreement on the marriage, that the, &c., were to be laid out in real estate to the uses declared by the settlement, and reciting that he had received £10,000 out of his wife's fortune, and had purchased the freehold estate in the County of Norfolk, amounting to more than £20,000, but had not conveyed the same to the uses of his marriage settlement; and that it was not his intention that such estates should be considered as an investment of the £20,000 trust money, but that the sum of £20,000, and also the surplus of £861, 14s. 9d. arising by the sale of the stocks in which £15,000 of the said trust money were invested, should be taken out of the personal estate, in lieu of such trust money, and applied in manner thereinafter mentioned; he gave and devised to the surviving trustee in the marriage-settlement, the sum of £10,000 part of the said sum of £20,861, 14s. 9d. (subject to an annuity to his wife) in trust to lay out in real estate, to be conveyed in trust for his daughter Mary during her life, for her sole, separate, and peculiar use, remainder to the trustees to support contingent remainders, remainder to all and every the child and children of his daughter Mary, as tenants in common, with remainders over; and, as to the residue of the said sum of £20,861, 14s. 9d., he directed that his daughter Ann should be entitled to the same, for her separate use: and he further gave to his [53] daughter Ann the further sum of £30,000, and he gave also to Ann, all his manors, &c., freehold and copyhold, for life, remainder to trustees, to preserve contingent remainders, with remainders in strict settlement, with remainders to the first and other sons of Mary, and an ultimate remainder to Smales in fee. In 1771, Mary, the wife of Pinckney Wilkinson died, and in July 1771, Ann, the daughter, married Thomas Pitt, Esq., now Lord Camelford, and Pinckney Wilkinson gave her a portion of £40,000 3 per cent. Bank consol. annuities.

Soon after the marriage. Pinckney Wilkinson made a codici! to his will, dated 1st August 1771, reciting the will, the marriage of Ann, and the portion; and thereby revoked the legacy of £40,000 given in his said will, to his said daughter Ann.

After the execution of the will and codicil, Pinckney Wilkinson purchased other lands, and 25th December 1781, made another codicil, by which he devised them to the same uses to which he had already devised the Polestead Hall estate; and further reciting that his daughters had been admitted to copyhold lands, and were entitled to such lands which had been their mother's, he directed that they, and all other persons, claiming by, through, or under them, should do every necessary act for settling the same, in like manner as he had by his will disposed of the Polestead Hall estate; and revoked all benefit given by his will to such persons as should refuse or neglect to do such acts, within six months after his decease; and gave not only all such benefit, but whatever such person or persons might become entitled to as his heir at law, or otherwise under him, to the same uses (as far as the law would permit) to which he had given his manors of Polestead Hall, &c. And whereas he was entitled to certain described stocks, and about £7000 in navy bills, he gave the same to his executors, in trust, to accumulate for the children of his daughter Ann Pitt, in such shares as the said Thomas Pitt and Ann Pitt should appoint. And gave his personal estate, given to Ann Pitt for life, to the said Thomas Pitt, if he should survive his wife Ann, until he should marry again; but, upon his decease, or marriage, the remainder to take place as in his will.

Pinckney Wilkinson died 4th March 1784, seised and possessed of large, real, and personal property, and, in particular, of £18,000 navy bills, without revoking his will or codicil.

[54] It further appeared by the bill, that there had been some treaty between Pinckney Wilkinson and Mary his wife, for the purchase of her real estates, which, upon her marriage, were settled to her sole and separate use; and two receipts were proved in the cause, one for £262, 10s. as the purchase-money for a little farm at