Mr. Scott, for the plaintiffs. This will can admit but of two constructions, either the two eldest daughters of Titus Stebbing must take, or the word two must be rejected, and all the daughters must take.-Sleech v. [86] Thorington, 2 Ves. 560, is a bequest to the two servants who should live with the testatrix at the time of her decease; at the testatrix's death, she had three servants, and they all were decreed to take equal shares. In that case [pp. 564, 565], Tomkins v. Tomkins,(1) in 1745, was cited, where the testator gave to the three children of his sister £50 each; the sister had four children, and they were all let in. In Scott v. Fenhoulet, in 1779 (as to this point, not reported) (Note: the point in Scott v. Fenhoulet came on to be reheard in 1784; and is now reported 1 Cox, 79. The bequest was to the same effect with the above and determined accordingly), there was a legacy given to Captain Compton, and each of his two daughters, if each or either of them should survive Lady Chadwick. Captain Compton had more than two daughters, and it was held, that all the daughters should take.

Mr. Price and Mr. Emlyn, for the residuary legatees. One great line of distinction between this case and that in Vesey, is, that in that case no particular servants were in view; in this, there is a particular identification of the two daughters, and, if either of them shall die, to the survivor; if both shall die, then to the residuary legatee.

In that case, the decision was ut res magis valeat quam pereat; here there is a direction that it shall fall into the residue. The case of Scott v. Fenhoulet is different from this; it was to Captain Compton, and each of his daughters: the mistake was only in point of number, but in this case, three were not intended to take the annuity, it was intended that only two should take it. It must be determined by reference to the Master, which are the two. If three take, it will postpone the residuary gift for another life, and contradict all the terms of the legacy.

Master of the Rolls. In construing wills, courts ought not to indulge conjecture ; it were much better that many wills should be defeated. In this case, I am not prepared to control the cases which have been determined. When rules are laid down, they ought to be such as meet the common sense of mankind. I acknowledge, on the present subject, I yield to the authority of the cases, and not to the reason of them ; but on the authority of the cases, I must declare that all the daughters shall take. (Reg. Lib. 1785, B. fol. 503 b.) (Note: After a declaration that all three daughters were entitled to legacies of £10 each under the will of Mary Stebbing, the Court declared, that under the will of the [second] testatrix, Margaret Harriet Stebbing, the £82 per annum short annuities, therein mentioned, ought to be divided into three "equal parts between the said three daughters of the said Titus Stebbing; with benefit * of survivorship amongst them." Reg. Lib.)

A

(1) Tomkins v. Tomkins is also cited, 3 Atk. 257. The Editor has a MS. report of it; the judgment in which (so far as relates to the present point) is as follows:Lord Chancellor. As it hath been agreed that the legacy should extend to the four children, it is not necessary to give any opinion upon it; but I should have thought * it a favourable case for all the children, if the testator had expressed it to all her three children, and would certainly have taken in all the children; and the addition of the word three must have been rejected as repugnant. In the present case, it is not "said all, but her children are definite words, and to be construed universally. And, if it was not to extend to all, the legacy would be void for want of knowing which of the three should be entitled."

[87] WILLIAMS against WILLIAMS. [1786.]

Master of the Rolls for Lord Chancellor.-Testator gives a debt due from his brother John, on bond of £300 [and upwards], to three. The debt was due as executor, £200 by bond, £100 by covenant, and £50 on account of a legacy [remaining due from him. Held, that the whole amount of the sums thus due, viz. £350, should be] divided among the three. The bank being made parties, to discover what sum the executrix had transferred into her own name,-need not be brought on to a hearing the plaintiffs, therefore, ordered to pay their costs.(1)

William Williams made his will, in which was the following clause: "Whereas my brother John stands indebted to me, by bond, in the sum of £300 and upwards,

now I dispose of the same as follows: one-third thereof to the said John, one-third to Nicholas, and one-third to Thomas" [and gave the residue of his lands, and his personal estate to his wife, whom he appointed sole executrix]. Nicholas and Thomas were the other brothers of the testator.

The debt due from John was as executor of another Nicholas Williams, who was indebted to the testator in £200 by bond, £100 by covenant, and had bequeathed the testator a legacy of £50 [which was unpaid, and remained owing to him by John]. The bill was filed against the executrix, claiming, on behalf of Nicholas and Thomas, third parts of the whole of John's debt.

Mr. Mansfield (for the plaintiff) insisted the brothers were so entitled, and that the testator intended such division, and merely mistook the security upon which Nicholas was indebted.

Mr. Scott (for the defendant) contended, that only the £200 secured by bond was to pass to the brothers; and the testator's mistake was a mistake of the quantity secured by bond, he meaning only to give the sum so secured.

Master of the Rolls. I have no difficulty in declaring what the testator intended to give, though the expression does not describe the situation of the money. Mr. Scott thinks only the money secured by bond will pass; I think the testator thought of the quantity of the property. He had three relations, and he meant to give them the £300 which were due to him from John; he therefore meant to include all John's debt. There was a matter arose in this cause as to costs. The testator had laid out £500, or thereabouts, in the purchase of 3 per cent. consols, which produced about £800 stock.

The residue being given to the defendant for life, and, after her decease, to the children of Thomas, she transferred the stock into [88] her own name. Upon application to her by the plaintiffs, to know what the residue was, which would come after her decease to the children of Thomas, she answered, about £400 (meaning, as she said afterwards, by her answer, the money laid out). The plaintiffs, by their bill, made the Governor, &c., of the Bank parties, and brought them on to the hearing. This his Honor objected to as an unnecessary expence.

Mr. Mansfield argued that it was not so; because, in practice, the subpœna being served, operated upon the Bank as an injunction, and prevented their permitting the executor to transfer, which they never would do after service of the subpoena.

:

His Honour said, although this was so in practice, it was not so in law; as the subpoena served would not be an answer to an action for not permitting a transfer, although an injunction would (Note: The practice of the Bank, upon notice of any dispute, is to withhold a transfer for some short limited time, in order to give the party opportunity to apply for an injunction if he does not avail himself of it, a transfer will be permitted of course): and declared it improper to bring the Bank to a hearing, and, on that account, ordered the plaintiffs (see note (1)), to pay the costs of the Bank, as against whom the bill was dismissed; and as against the executrix, an account of the testator's estate and effects, the debt due from John to be paid as aforesaid,(2) the residue to be transferred to the accountant-general, the interest to be paid to the widow for life, and then among the children of Thomas; the other costs out of the assets of the testator. (Reg. Lib. 1785, B. fol. 574 b.)

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(1) "In Darlington v. Allen, 16 Nov. 1786, His Honor, in a similar case, directed the plaintiff to pay to the Bank all their costs subsequent to their putting in their answer, but would not give them out of the funds. And he desired the bar to take "notice, that he considered the practice of bringing the Bank to a hearing as totally “unjustifiable, though it might be necessary to serve them with subpoena, and get "their answer." From Mr. Cox's MS. notes.

(2) " Declare that the bequest in the will of the testator W. W. of the sum of £300 "and upwards, due by bond from his brother John W., and thereby given in thirds to the defendant J. W. and the plaintiffs T. W. and N. W., according to the true "construction of the said testator's will, includes the sum of £200 due on bond from the defendant, the said J. W., as executor of Nicholas W. deceased; the sum of £100 also due from the said defendant J. W. as executor as aforesaid under the covenant of the said testator Nicholas W.; and also the legacy of £50 due from the said defendant J. W. as executor as aforesaid for the legacy given by the will of the said testator Nicholas W." Reg. Lib.

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HORTON against WHITAKER. [26 June & 25 July 1786.]

Master of the Rolls for Lord Chancellor.

His Honor directed a case to the Court of King's Bench; saying, he thought he had authority so to do when sitting for the Lord Chancellor, though not when sitting at the Rolls.

[The case was argued 27th June (absente Lord Mansfield), and returned with a certificate from the three puisne Judges.-Vide 1 T. R. 346.] (Reg. Lib. 1785, A. fol. 730.)

STRATHMORE against BowES. [1 & 11 July.]

[Vid S. C. 2 Dick. 673, & 1 Cox, 263.Master of the Rolls for Lord Chancellor.— Injunction for waste against tenant for life, without impeachment of waste. (See Chamberlayne v. Dummer, 1 Bro. C. C. 166, 167, 168, and the notes.) Affidavits read against the answer in support of injunctions to stay waste. (See the practice, as at that time, accordingly stated by Mr. Dickins, the Registrar, 2 Dick. 673.)

Mr. Mansfield moved for an injunction to restrain the defendant from committing waste, by cutting down timber in the avenues, &c., of the estate of the late Mr. Bowes, at Gibside.

[89] By the settlement on the marriage of the late Earl of Strathmore with Miss Bowes, he was made tenant for life, without impeachment of waste, except voluntary waste in houses, remainder to Lady Strathmore (then Miss Bowes), in like manner, remainder over to the present Earl, &c. After the death of Lord Strathmore, the defendant intermarried with Lady Strathmore, and, being seised in her right (but living separate from her), had committed great waste in cutting timber, and marking other timber to be cut; among the rest, young saplins, not usually cut in the course of cutting timber.

The injunction moved for was, to restrain him from cutting timber, or doing any waste in the rides or avenues to the house, or cutting timber that was of shade, or ornament to the house, and trees unfit to cut as timber. (Note: The Court, however, refuses to speculate on what is ornamental or not, and confines itself to what has been planted for ornament. See note to 1 Bro. C. C. 166. M. Downshire v. L. Sandys, 6 Ves. 107, 110, 111, 112; 8 Ves. 70, 71, &c.)

The defendants insisted they had neither cut nor marked any saplins, or improper timber, or any trees near the house, but in rides through the woods, a mile from the house. (Vide 7 Ves. 309.)

His Honor granted the injunction, saying, it ought to include every thing useful or ornamental to the house. A ride through a wood is most constitutive to the beauty of the place. He thought himself bound to grant an injunction as to the ornamental trees, though they should not be planted trees, but trees growing naturally. (1) He therefore directed the injunction to be in the terms of Mrs. Dummer's (1 Bro. C. C. 166), and to extend to cutting young saplins, and trees not fit to cut as timber.

On the last day of the term, the answer, in the mean time, being put in, by which the defendant swore that he had not cut, nor intended so to do, any timber, or ornamental trees, or any saplins, although the woods received injury from some of them not being weeded out, and the plaintiff not having excepted to the answer, the defendants moved to dissolve the injunction.

His Honor said, the answer not being excepted to, and being full, must be taken to be true; and therefore he must discharge the rule, although the time for excepting was not expired; and that, upon exceptions filed, the injunction would revive.

[90] Mr. Mansfield afterwards said, he found he was misled as to the practice, that he ought to have read the original affidavits upon which the rule was granted, in reply to the answer, and that this was the practice in cases of waste.

His Honor doubted the practice, and ordered it to stand over, in order to enquire into it. (See the circumstances fully, and Mr. Dickins the Registrar's certificate, that affidavits might be read against the answer in cases of waste, 2 Dick. 673, and 1 Cox, 263. Vide also Norway v. Rowe, 19 Ves. 144, &c., and Robinson v. Ld. Byron, 1 Bro. C. C. 588, 589, and the note.)

At the first seal after term, the affidavits were read, by consent (the consent was given inadvertently. Vide 2 Dick. 676. Et vide 19 Ves. 153, 154), and the injunction dissolved.

(1) This part of the report must be taken with caution, after the observations of Lord Eldon, above referred to. It is evident here that the trees were ornamental, as adorning the rides which had been cut through the woods, although the individual trees might not have been planted for ornament. The case, therefore, did not require the stress which Lord Eldon laid on the latter, as a requisite in general cases. See the note to 1 Bro. C. C. 166, 167.

THOMAS STEPHENS, Executor of GEORGE STEPHENS, Plaintiff ; EDWARD OLIVE, Senior, and JANE his Wife; DEBORAH MIGHELL, Executrix of SAMUEL MIGHELL, SAMUEL DRAWBRIDGE, and SUKEY his Wife; JOHN OLIVE and EDWARD OLIVE, Infants; which SUKEY DRAWBRIDGE and JOHN and EDWARD OLIVE are the Children of said EDWARD and JANE OLIVE; THOMAS CRIPPS and RICHARD WATTS, and Others, Defendants.

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Master of the Rolls for Lord Chancellor.-Lincoln's Inn Hall, 14 July.--(“ The cause first came on 31 March 1785; and was ordered to stand over, the plaintiff not "having sued out an elegit." From Ld. Redesdale's notes.) A settlement after marriage, by a person not indebted, is not within the statute of fraudulent conveyances.(1) On a deed of separation, the trustees indemnifying the husband against the wife's future debts, is a valuable consideration, and takes the conveyance out of the statute. (S. P. Worrall v. Jacob, 3 Merivale, 256. See the elaborate judgment there from p. 261, especially 268, 269, 270.)

Edward Olive, senior, after his marriage, by indentures of lease and release, the release dated 7th May 1774, settled his real estate on himself for life, with remainder to Jane his wife for life; remainder to Thomas Cripps for 500 years; remainder to his first and other sons in tail; remainder to his daughters in tail; remainder to himself in fee. The trusts of the term were for raising portions for younger children. By another deed of the same date, he mortgaged the said estate to Philip Mighell for a term of 1000 years, to secure the repayment of £500 and interest. On the 6th March 1775, he became indebted by bond, to George Stephens in £200. By indentures of lease and release, dated 19th and 20th December 1775, reciting [91] that he and his wife had agreed to live separate, he conveyed his life-estate in the said premises to Samuel Drawbridge and Richard Watts in trust, out of the rents and profits, to keep down the interest of Mighell's mortgage, and to pay all taxes and repairs, and then to pay £35 per annum to Jane his wife for her separate maintenance; next £35 per to himself; and, if there should remain any surplus, to add the same to his wife's annuity, or to his own, at the discretion of the trustees, or to preserve the same, to accumulate for the benefit of his son. The trustees covenanted to indemnify the husband against the debts his wife might contract after the separation. Soon after the execution of the deeds, the trustees took possession of the estate. In Michaelmas Term 1781, Thomas Stephens, the executor of the said George Stephens, obtained judgment against Edward Olive on the said bond, and having sued out a fi. fa. levied

annum

£70. He afterwards sued out an elegit (see headnote) into the county of Sussex, where the said real estate, comprised in the several deeds aforesaid, lies: but the jury who were summoned, found, by their inquisition, that Edward Olive was not seised of any freehold estate in that county; whereupon Thomas Stephens exhibited his bill in this Court against Edward, and Jane his wife, Deborah Mighell, executrix of Philip Mighell, the mortgagee, the children of Edward and Jane Olive, the trustees in the two settlements, and others, praying that the settlement might be declared void, and set aside as against the plaintiff, as being voluntary, and without consideration; and that the estate comprised therein might be sold, and the purchase money, after satisfying the mortgagee, applied towards payment of what remained due to the plaintiff on the said bond.

The case came on to be heard before the Master of the Rolls, sitting for the Lord

Chancellor. There was no evidence that Edward Olive was indebted at the time of making the settlement of 7th May 1774, except in the said sum of £500 to Philip Mighell, which was secured by mortgage.

Mr. Mansfield and Mr. Bicknell (for the plaintiff) insisted, 1. that the settlement of 7th May 1774, would have been void, as against him, even if the settlor had not been at all indebted at the time; but, if that were doubtful, that his debt to Philip [92] Mighell, although secured by a mortgage, made such settlement void.

And, 2. that the settlement of 20th of December 1775, being made subsequent to the plaintiff's debt, was clearly void. To prove these positions they cited Taylor v. Jones, 2 Atk. 600. Fitzer v. Fitzer, 2 Atk. 511.

Mr. Ainge (on the other side) cited [Russell v. Hammond, 1 Atk. 15. Walker v. Burrows, 1 Atk. 94, and Lord Townshend v. Windham] 2 Vesey, 11. His Honor [Sir L. Kenyon] held, 1st, that a settlement, after marriage, in favour of a wife and children, by a person not indebted at the time, was good against subsequent creditors, and not within the 13th of Eliz. On this point he relied chiefly on what Lord Hardwicke says in 2 Vesey, 11.

2d. That although the settlor was indebted, yet, if the debt was secured by a mortgage, the settlement was good.

Therefore he held that the first settlement was valid.

3d. That the covenants by the trustees in the second settlement to indemnify the husband against the debts which the wife might contract after the separation, was a valuable consideration; and therefore that this settlement, although made after the debt due to the plaintiff was contracted, was also good against him. (See the cases in 3 Merivale, 256, and note the observations of Lord Eldon, C., upon this decision in Lord v. Lady St. John, 11 Ves. 536, 537.)

After his Honor had delivered his opinion on the validity of the two settlements, the plaintiff's counsel contended, that the plaintiff, being a creditor, had a right to redeem the mortgage, and to hold the estate till the mortgage money was satisfied; and then, supposing the settlements to be valid, to retain so much out of the rents as was reserved to the husband by the settlement of December 1775. But his Honor said, the plaintiff's debt being only a specialty at the time of the second settlement, he was not intitled to any advantage over the wife; on the contrary, she had a better title under that settlement; and the person next intitled after the mortgagee could alone be suffered to redeem.

His Honor decreed, that a receiver (2) should be appointed, who was to keep down the interest of the mortgage, in the first place, [93] then to pay £35 per annum to the wife, according to the trusts of the settlement of December 1775, and to pay into the Bank the £35 per annum, reserved by that settlement to the husband [or so far as the residue of such rents and profits would extend, R. L.], as there might be other incumbrances on the said estate. (3)

The counsel for the mortgagee was not authorised to consent to the appointment of a receiver; but his Honor said he might apply to the Court if he wished to get into possession. (Reg. Lib. 1785, B. fol. 758.)

(1) See also Lush v. Wilkinson, 5 Ves. 384; with Kidney v. Coussmaker, 12 Ves. 236, 255, &c., and the several cases cited; especially Ld. Townshend v. Windham, 2 Ves. 10, 11, and Supplement, 247. A voluntary settlement or conveyance, however, though good against subsequent creditors, is void against a subsequent purchaser for raluable consideration, under the stat. 27 Eliz. c. 4. See in Ld. Townshend v. Windham, 2 Ves. 10, 11, and the references in the Supplement, 247, et Copis v. Middleton, 2 Madd. Rep. 430. Lord Eldon, C., held, that the surrender up of a voluntary bond valid between the parties, though void against creditors, might operate as a good consideration for a substituted bond, even as against creditors, where no fraud. Vide ex parte Berry, 19 Ves. 218. It should seem, however, that the Courts would be very jealous and vigilant in such instances.

(2) It seems that if a prior mortgagee refuses to take possession, a subsequent mortgagee may insist upon a receiver being appointed, with directions to keep down the interest and Lord Thurlow, C., appointed a receiver, at the instance of one of the mortgagors, to keep down the mortgage interest, unless the mortgagee chose to take possession, although the mortgagee opposed the application. The case in the MSS.