. 10 SIMONS, 442-443; 5 MY. & CR. 110. [R.R. manner, I think it is a fair inference that he meant something else than that which is so obvious and easy. He says: "the nearest of-kin," not of myself, but "the nearest of kin of my own family for ever." Now I cannot but think that, if he had used the words: "in the event of the death of my daughter and failure of issue of my daughter, the trustees shall transfer the residue of the trustmoney to my family," that would have been a gift to the daughter. And, when he says: "the nearest of kin of my own family,” I cannot but think that the most natural construction of the words is that the persons whose nearest of kin are spoken of, are those persons who, according to ordinary language, would be his family, that is his daughter. And I am the more inclined to think that that is the meaning of the phrase, because, though the construction has been put, by courts of law, upon the words "relations &c." which has been established by a series of cases, beginning with the case of Harrington v. Harte (1); yet I believe that, out of the courts of law, nobody would think that that is the construction; and the multitude of cases shows the willingness to dispute the point where it is disputable.

Now the words which this testator has used, are words which do not, of necessity, imply his own next of kin ; and those words never having as yet received a legal construction, I will, for the purpose of construing them, look at what he has done by the former part of his will; and I find that he has given the residue of his property to his daughter for life, with remainder to her children; and then, for the obvious purpose, as I conceive, of making a disposition of his property in the event of his daughter and her issue being no longer able to enjoy it, he uses these singular terms.

Upon the whole, therefore, it appears to me not to be unreasonable to hold that, under the term: "the nearest of kin of my own. family," the nearest of kin of the daughter is the party to take.

[Percival White appealed, to the Lord Chancellor, from the above decision, as reported in 5 My. & Cr. 108.

THE LORD CHANCELLOR (after stating the will) said:]

The contest is between those who claim through the daughter, who was the testator's sole next of kin at his death, and the person who was next of kin of the testator at the death of the daughter, and is also the next of kin of the daughter. Those two characters being

(1) 1 Cox, 131,

united in the same person, the only question is, whether the testator intended that his daughter, who was his sole next of kin at his own death, and to whom he had given a life interest and a power of disposition by will to the extent of 3,000l., should take by the description of the person to whom the residue, after deducting the 3,000l., is to be assigned.

Now, I should have had no doubt that the testator could not possibly intend his own daughter.

Many circumstances concur in the present case. The tenant for life is the sole next of kin of the testator; is the person who is to appoint a portion of the residue, viz. 3,000l.; and, referring to the period of the death of that tenant for life, the testator directs that, upon her decease without issue, his trustees shall "assign and transfer" the residue of his personal estate. Independently, however, of all these circumstances, there is a very strong description of the person who is to take-it being borne in mind that at his death she was his only child-the person to take is the nearest of kin of his own family for ever.

It appears to me that only two constructions can be put upon this description. It clearly implies a doubt as to who would be the party to take.

By the words "my own family," the testator may have meant to describe his daughter, or may have meant to describe his own immediate stock. In the one case, the gift would be to his own next of kin at his daughter's death, and, in the other case, it would be to the daughter's next of kin at the same period.

It is quite immaterial to decide between those two classes, because they are, in fact, the same individual, and the only question, therefore, is, whether the persons intended by the testator are not persons to be ascertained at a future period.

I have looked through all the cases referred to; but there is no case in which such strong demonstration is to be found that the person who is to take is a person to be ascertained at a future period.

The result is, the appeal must be

CLAPTON

C.

BULMER.

[111]

Dismissed with costs.

1840.

Jan. 23.

SHADWELL,
V.-C.
[444]

[ *445 ]

CHAMBERLAIN v. LEE.

(10 Simons, 444—453.)

Vendor and purchaser-Title.

If A. agrees to sell an estate, and it is afterwards discovered that a small portion of it is the property of another person; the Court will not discharge the purchaser from his contract, without giving A. an opportunity of acquiring a title to that portion (1).

IN June, 1837, the estates of John Lee the testator in the cause, who died in 1836, were sold, in lots, under the decree of the Court; and Joseph Gosnay became the purchaser of lots 62, 63, and 64. In the particulars of sale those lots were described as follows: lot 62 as a moiety of a plot of freehold building land situate on the north side of the Wakefield Ings Road and adjoining to the fair ground, containing 2,495 square yards: lot 63, as a moiety of a plot of freehold building land bounded on the east by lot 62, on the west by Denby-Dale Road, and containing 1,400 square yards: lot 64, as a moiety of a plot of freehold building land bounded on the east by lot 65, on the west by the Denby-Dale Road, on the north by the fair ground, and, on the south, by the Ings Road, and containing 2,600 square yards. By the second condition of sale, it was stipulated that the purchasers should, within six weeks from the delivery of the abstract of title, deliver, in writing, at the office of Mr. T. Taylor, the vendors' solicitor, all objections, if any, to the title; and that all objections not delivered by that time, should be considered as waived. The 12th condition provided that, if any mistake, error or mis-statement should be made in the description of the property or any other error should appear in the particulars of sale, such mistake, error, or mis-statement should not annul the sale, but a compensation or equivalent should be given or taken as the case might require, such compensation or equivalent to be settled by the Master.

On the 19th of July, 1837, the Master's report as to Gosnay's purchase was confirmed. On the 22nd of March, 1838, the abstract of the vendors' title to the *lots was delivered to Gosnay. In June, 1838, he presented a petition praying to be discharged from his purchase, on the ground that the auctioneer had put up the lots to be bid for at so much per square yard; and that he was thereby

(1) But the vendor will not be entitled to this indulgence if he cannot complete his title before the time fixed for the completion of the contract:

Bellamy v. Debenham [1891] 1 Ch. 412, 60 L. J. Ch. 166, 64 L. T. 478, C. A. -O. A. S.

induced to believe that he was bidding for the entirety, and not a moiety only of a square yard. In December, 1838, the petition was heard by the VICE-CHANCELLOR, who granted the prayer of it; but, in May, 1839, the LORD CHANCELLOR, on appeal, dismissed it with costs. On the 6th of June, 1839, the plaintiff gave a notice of motion that Gosnay might be ordered to pay his purchase-money into Court. On the 9th of November following, Gosnay gave a cross notice of motion that he might be discharged from his purchase, and that the contract entered into by him for the purchase of the three lots, might be rescinded, the vendors not having a title thereto at the time of the sale; and that the plaintiffs might pay to him his costs and expenses of confirming the report and investigating the title to the lots, and of the motion.

It was stated, in the affidavits for the purchaser, that the lots in question adjoined the Wakefield Ings turnpike road on the south side; and that the whole of that side of the lots, which was 200 yards in length, consisted of a piece of ground (1), to which the testator had no right or title whatsoever, but which, as to so much. of it as was comprised in lot 62, belonged to J. H. Smyth, Esq., and, as to the remainder, to the trustees of the late Joseph Hargrave, Esq. It appeared, from the affidavits for the vendors, that, for the last nine years, if not longer, the testator and those claiming under him, had been in quiet possession of the whole of the lots and the vendors' solicitor deposed that he did not know or believe that any part of lots 63 and 64 belonged to Hargrave's trustees.

In October, 1839, which was some months after the vendors had been informed, by the purchaser, of the alleged defect in their title, their solicitor sent to the purchaser's solicitor an abstract of Mr. Smyth's title to that part of the piece of ground which belonged to him and which formed part of lot 62, and, at the same time, informed the purchaser's solicitor that, for the purpose of preventing any further litigation and expense, the vendors had entered into a contract, with Mr. Smyth, for the purchase of a moiety of that portion of the piece of ground which belonged to him, and which formed part of lot 62: but no new title was shown to that part of the piece of ground which was alleged to belong to Mr. Hargrave, and which was comprised in the two other lots.

(1) It did not appear, from the briefs on the motions, what was the breadth of this piece of ground; but, in one

of the papers belonging to the pur-
chaser's solicitor, it was stated to be
six feet.

CHAMBER

LAIN

v.

LEE.

[ *446]

CHAMBER-
LAIN
v.

LEE.

[ 448 ]

[449]

The original and cross motions now came on to be heard.

Mr. Knight Bruce and Mr. Metcalfe appeared in support of the former; and Mr. Wakefield and Mr. Bethell, in support of the latter:

If the purchaser cannot have the frontage, the rest of the ground is of no value; and, therefore, this is not a case which admits of compensation. The Court cannot now give the vendors an opportunity of acquiring a title to that in which they had no interest whatever at the time of the sale: [Lechmere v. Brasier (1).] In Dalby v. Pullen (2), the Court discharged the purchaser, although the defect in the title was actually cured at the time: and, consequently, it refused to give the vendor the benefit of the acquisition of title which had been made subsequent to the contract.

THE VICE-CHANCELLOR :

What Lord ELDON is reported to have said, in Lechmere v. Brasier, applies to a case where A. has sold the estate of B.; but it does not apply to a case where that which the vendor has not, is a very small portion of the property sold.

Mr. Knight Bruce, and Mr. Metcalfe, cited Williams v. Carter (3), and said that it was not pretended that the alleged defect in the title to a portion of lot 62, was known to the vendors until they were informed of it by the purchaser's solicitor: that it was a fallacy to say that the vendors had no title to the slip of land; for they and the testator had long had possession of it, which was a species of title: that the 12th condition was not intended to apply to fraudulent errors, but was intended to apply to unintentional ones: that Gosnay, a quarter of a year after the abstract had been delivered to him, presented a petition praying to be discharged from his purchase, on other grounds; and that it was his duty to have stated that he did not know of the present objection, at that time; but he had not done so: that the abstract, which was delivered in March, 1838, showed that he must have been aware of the objection when he presented his petition to be discharged: that the notice of motion for payment of the purchase-money into Court, was given on the 6th of June, 1839; and that it was not until the 9th of November in that year that the notice of motion

(1) 22 R. R. 130 (2 Jac. & W. 289).
(2) 30 R. R. 123 (1 Russ. & My. 296;

3 Sim. 29).

(3) 1 Sug. Vend. 208.