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was to depend on the fact of his daughter thereafter marrying. It might have been different if she had been married. The trusts which the testator has declared of the legacies in question, are, first, for the separate use of his daughter for her life, next, for the benefit of her children, and then he describes the failure of children on the supposition that there was a marriage. In my opinion, therefore, the testator did not mean that the legacies should go to the executors or administrators of his daughter in the event of there being a failure of children by her under any circumstances; but, it seems to me that his general intention was that the corpus of the legacies should not go away from the bulk of his estate except in case of her marrying; and that, in order to mark that intention, he says: "if my said daughter, Ann Lenox, should survive any husband with whom she may intermarry, then in trust for my said daughter." I must take it, therefore, that the testator in this case, has himself described the very event on the happening of which he *intended the corpus of the legacies to go over; and, under the circumstances of the case, I must hold that they belong to the residuary legatees.

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TANNER v. SMITH.

(10 Simons, 410-412; on appeal, 4 Jur. 310.)

Vendor and purchase:-Conditions of sale-Rescission of contract. One of the conditions of sale provided that, if the purchaser should raise objections to the title which the vendor should not be able or willing to remove, the vendor should be at liberty to rescind the contract, and that all objections which should not be taken, in writing, within 10 days after the delivery of the abstract, should be considered as waived: Held, that the condition referred to the first delivery of objections, and, if the vendor expressed his willingness to answer them, he could never afterwards rescind the contract.

THE bill was filed, by the vendors of an estate against the purchaser, for a specific performance of the contract between the parties, and for an injunction to restrain an action brought by the defendant against the plaintiffs, to recover the deposit.

By one of the conditions of sale, the abstract was to be delivered to the purchaser, or his solicitor, within 20 days after the sale; and, by another condition (the 7th) it was provided that, if the purchaser should raise objections to the title, which the vendors should not be able or willing to remove, and the purchaser should insist upon such objections, the vendor should be at liberty, by writing under his hand, to rescind the contract, on repaying, to the purchaser, his

1840. Jan. 15.

SHADWELL,
V.-C.

On Appeal.
Feb. 29.

Lord COTTENHAM,

L.C.

[410]

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or her deposit-money, without interest or costs; and that all objections which should not be taken, in writing, within 10 days after the delivery of the abstract, should be considered as waived.

The abstract was delivered within the 20 days; and, on the 9th of March, which was the 10th day after, the *defendant sent, to the plaintiffs, several objections, in writing, to the title as shown by the abstract. On the 12th of March, the plaintiffs informed the defendant that they should have no difficulty in removing the objections; that a further abstract would be delivered within a few days, and that 10 days more would be then allowed for making objections to the title. On the 9th of May, the further abstract was delivered; but, previously thereto, the time for completing the sale had expired, and the defendant had commenced his action.

The motion for the injunction was now made; and one question was, what construction ought to be put upon the 7th condition of sale. THE VICE-CHANCELLOR :

With respect to the 7th condition: I confess that it appears to me to be a new condition: but it must be looked at fairly and receive a reasonable construction; and that, in my opinion, is that, when objections to the title have been delivered within the 10 days, then the vendors shall have the power of determining which of two courses they will adopt, that is, whether they will endeavour to remove or answer the objections, or whether they will put an end to the contract altogether. If they are either unwilling or unable to remove the objections, then they must pay back the deposit-money, without either interest or costs.

There seems to me to be nothing very unreasonable in the condition as so construed: but it would be very unreasonable to hold that, after the objections have been sent in, and the vendors have expressed a willingness to remove them, they shall be at liberty, at any time afterwards, to rescind the contract.

My opinion, therefore, is that the construction which ought to be put upon this 7th condition, is that, if the vendors once elect to answer the objections, they are, for ever thereafter, precluded from exercising the option given to them, by that condition, to rescind the contract.

Mr. Knight Bruce supported the motion: and Mr. Jacob, Mr. Wray and Mr. Humphry opposed it (1).

(1) The injunction was granted by the VICE-CHANCELLOR; the LORD

CHANCELLOR, however, dissolved the injunction on appeal as reported in 4

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A testator directed his trustees to invest the proceeds of his real and personal estate, and to accumulate the interest until the youngest child of his brother should attain 21, and then to stand possessed of the trust-fund and its accumulations, in trust for all the children of his brother who should be then living. The brother had seven children, and all of them were living at the date of the will, and at the testator's death. All the children, except the second, died, and none of them, except the eldest, the second, and the fourth, attained 21. The fifth was the last that died: Held, that the trust for accumulation did not continue until the seventh child would have attained 21, if living, but that it ceased on the death of the fifth child, and that the second child then became entitled to the trust-fund.

SAMUEL JONES, by his will dated the 25th of May, 1825, directed his trustees to invest, as soon as conveniently might be after his decease, the monies to arise from the sale of his real and leasehold estates and the residue of his personal estate, in the usual securities, and, in the mean time and until the youngest child *of his brother, Thomas Jones, should attain the age of 21 years, to accumulate the interest and dividends thereof, in the way of compound interest; and, when and so soon as such youngest child of his said brother, Thomas Jones, should attain his said age of 21 years, to stand

Jurist, 310, saying (at p. 312): The question is, whether the deposit is to remain in the hands of the auctioneer or the vendor, or be returned to the purchaser. I cannot see why the money should remain in the hands of the vendor. The VICE-CHANCELLOR might have ordered the money into Court. I am of opinion the Court should not interfere with the action. The plaintiff may get his deposit; whether it is better the action should be stayed, or the purchaser should go on with it, I see enough of the frame of the contract, to know that the greatest possible injustice might be done to the purchaser. The contract is to deliver an abstract within twenty days, and that the objections are to be sent to it within ten days afterwards. The seventh condition is, that if the vendor shall be unable or unwilling to remove the objections urged against the title, he shall be at liberty to rescind the contract upon payment of the deposit without interest or costs.

Whether this objection is to be under-
stood to mean an objection to the
original abstract, or whether to a sub-
sequent abstract, the vendor has
reserved to himself the power to con-
strue it as he pleases; whether he is
unwilling or unable to remove the
objections, he shall be able to annul
the contract for the sale, and the pur-
chaser shall not have the deposit.
Anything more unjust there could not
be. The VICE-CHANCELLOR says the
objections must be considered as the
objections to the first abstract. The
question is, whether I am to interfere
with the purchaser's legal right to
recover his deposit. I consider he has a
legal right to recover the deposit, which
enables him to contest with the vendor
with his own money, and to have the
interest till the decision of the cause.
It would be unjustifiable to deprive
the purchaser of the power of getting
his deposit; and I dissolve the injunc-
tion of the VICE-CHANCELLOR.

1839. Dec. 23.

SHADWELL,

V.-C.

[412]

[ *413]

EVANS

possessed of and interested in the said rest, residue and remainder PILKINGTON. of the said trust monies, and the stocks, funds and securities in or

t'.

[414]

upon which the same and the accumulations thereof, should be respectively invested, in trust for all and every the children and child of his said brother, Thomas Jones, who should be then living, or the issue of such of them as should be then dead, such issue respectively to take their parents' share, and to be divided amongst them, if more than one, in equal shares and proportions, and, if there should be but one such child, then in trust for such only child, or his or her issue, and if there should be no issue of his said brother, Thomas Jones, who should live to attain the said age of 21 years, or should die under that age leaving issue, then in trust for the person or persons (other than and except the testator's brother Joseph Jones or his issue) who, under and by virtue of the statutes made for the distribution of the personal estates of intestates, would then be entitled thereto.

The testator died on the 17th of December, 1827. At the date of the will and at the testator's death, seven children of the testator's brother, Thomas Jones, were living, that is to say, Stedman Richard Samuel Jones, his eldest child, Elizabeth Jane Stedman Jones, his second child, Samuel Huddart Owen Glendower Jones, his third child, Frederick Arthur Jones, his fourth child, Alfred Tudor Jones, his fifth child, Caroline Angelina Jones, his sixth child, and Rosa Matilda Jones, his seventh child: and their father, who died in September, *1834, had not afterwards any other child. Stedman Richard Samuel Jones attained 21 on the 20th of May, 1829, and died on the 15th of October, 1834. Elizabeth Jane Stedman Jones attained 21 on the 12th of May 1833. Samuel Huddart Owen Glendower Jones died on the 17th of June, 1833, under 21. Frederick Arthur Jones attained 21 on the 12th of January, 1837, and died on the 15th of February following. Alfred Tudor Jones died on the 17th of May, 1837, under 21. Caroline Angelina Jones died on the 18th of June, 1828, under 21; and Rosa Matilda Jones died on the 2nd of July, 1828, under 21. All the deceased children died intestate and without having been married; and Elizabeth Jane Stedman Jones took out administration to her four deceased brothers. Elizabeth Jane Stedman Jones married Thomas Evans; and, by the settlement on their marriage, dated the 17th of November, 1834, she assigned all legacies and sums of money and shares of trust monies, stocks, funds and securities, and proceeds of real and personal estate, to which she was or might become entitled under

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or by virtue of the testator's will, and also all her share and interest EVANS of and in the personal estate of her brother Stedman Richard PILKINGTON. Samuel Jones (except her life-interest in a legacy of 1,500l. given by the testator's will), to William Moore, Edward Hardwicke, and David Evans, upon certain trusts for the benefit of herself and her husband and the children of their marriage.

The bill was filed by Thomas Evans and Elizabeth Jane Stedman, his wife, and their children and the trustees of their marriage settlement, alleging that, in consequence of the several events therein and herein before stated, the plaintiffs were advised that the whole *of. the residue or surplus of the monies which had been produced by or from the real and personal estate and effects late of the testator Samuel Jones, and all the stocks, funds and securities wherein the same had been invested, had become and were then subject and liable to the trusts or provisions of the settlement, discharged from all trusts or directions for accumulation contained in the testator's will, and ought to be transferred, by the surviving trustee of the will, to the trustees of the settlement; and the bill prayed for a declaration to that effect, and that the trust funds might be transferred accordingly. The defendant, Pilkington, who was the surviving trustee of the will, said, in his answer, that he had declined to transfer the trust funds to the trustees of the settlement, or to apply the interest, dividends and annual income thereof according to the trusts of that deed, inasmuch as he had been advised that it was doubtful whether, according to the true construction of the will, the trusts for accumulation therein contained, were at an end, and whether they would not continue until the time when the youngest child of Thomas Jones would, if living, have attained 21 (1); and whether any person would attain a vested and absolute interest in the trust property or any part thereof, until that period.

Mr. G. Richards and Mr. John Wilson, for the plaintiffs, said that, by the will, cross remainders were, in effect, created amongst the children of Thomas Jones, the testator's brothers: and they cited Ford v. Rawlings (2).

Mr. Knight Bruce and Mr. T. H. Hall, for the defendant Pilkington, the surviving trustee of the will, submitted that the trust for accumulation would not cease, until the seventh child of Thomas Jones would have attained 21.

(1) The time at which the youngest child would have attained 21, did not

appear.

(2) 24 R. R. 188 (1 Sim. & St. 328).

[ *415 ]

[416]

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