the same on or before the 1st day of September then next, at &c., for execution by the vendor. And thereupon the defendant became and was the highest bidder for the said premises, at and for the sum of 905l., and was declared so to be, and signed an agreement to complete his purchase according to the said conditions. Sarah Hewitt, being seised in fee of certain premises, and, among others, those put up for sale as aforesaid, by her will, bearing date the 23rd day of December, 1811, and duly executed to pass real estates, devised the said premises so put up for sale as follows: I give and devise my messuage, outhouses, courts, gardens, orchards, and three closes of ground, with the tithes and appurtenances thereof, situate at Kilcott, now in the occupation of John Morris, and also a little close in Kilcott aforesaid, called Giddy Nap, in the occupation of Hiscox, unto John Morris and Ann his wife, and the survivor of them, for and during their lives, and the life of such survivor: and from and after the death of such survivor, I give and devise the last mentioned messuage, &c., and premises, unto Sarah, the wife of John King, Esq., and one of the daughters of William Holborow the elder, for and during her life; and after her decease, unto the said John King, if he survives her, for and during his life; and from and after the decease of the survivor of them the said John King and Sarah King his wife, I give and devise the same last mentioned messuage, &c., and premises, unto the second son of them the said John and Sarah King, and the heirs and assigns of such second son for ever. At the time of making this will, the said John and Sarah King, in the will named, had had three sons, Elisha, John, and William George; but William George was the only one then living, Elisha having died in the month of August, 1809, and John in the month of May, 1811 (1). The testatrix died in the year 1821. In the month of May, 1813, the said John and Sarah King had a fourth son, Henry King, who died in the month of April, 1814; and in the year 1815 they had a fifth son, John Henry King, the present plaintiff. William George King is now alive: John Morris and Ann his wife, and John and Sarah King, who are respectively named in the will, were all dead some time before the said sale. The plaintiff, within the time mentioned in the conditions, prepared and delivered an abstract of title to the premises, wherein he (1) It was agreed that it should be taken as a fact in this case, that the testatrix knew the circumstances of KING v. BENNETT. [ *39 ] assumed himself to be entitled thereto in fee, as the second son of John and Sarah King, by virtue of the will of Sarah Hewitt: and the defendant, within the time mentioned in the conditions, objected to the title so produced, on the ground that the plaintiff was not the second son of John and Sarah King, according to the true construction of the will of Sarah Hewitt. The question for the opinion of the Court is, whether the plaintiff has a good title in fee simple to the premises so put up to sale. If he has, a judgment is to be entered for the plaintiff by confession, for 8147. 108. If the Court should be of opinion that he has not, judgment of nolle prosequi is to be entered for the defendant. R. V. Richards, for the plaintiff, relied on Lomax v. Holmden (1), and Driver v. Frank (2). Stephen, Serjt., for the defendant: Supposing the testatrix to have known that the two first sons were dead, the question is, whom she intended by the description of "the second son" of John and Sarah King. The defendant contends that it must be construed to mean Henry, who was the second son born after the making of the will. It can make no difference that he afterwards died in the lifetime of the testatrix: that would only make it a lapsed devise; but it is a principle well established that no testator is supposed to contemplate a case of lapse: Ulrich v. Lichfield (3). It is clear that the testatrix could not mean the second son in the actual order of their birth: and the most reasonable interpretation therefore is, that she meant the son who should be second in order of birth after the date of her will. (ALDERSON, B.: Suppose William George had died instead of Henry, what then?) Henry would still have taken, although he became the eldest. Trafford v. Ashton (4), and West v. Lord Primate of Ireland (5), are authorities in favour of the defendant. In the latter case, the testator, by his will, had desired that his executor should, at his (the executor's) decease, bequeath 1,000 guineas to Lord Cantalupe, for the use of his seventh, or youngest child in case he should not leave a seventh child living. At the death of the testator, Lord C. (1) 1 Ves. Sen. 294. (2) 15 R. R. 385 (3 M. & S. 29; 8 Taunt. 468; 6 Price, 41). (3) 2 Atk. 375. (4) 2 Vern. 60; Eq. Ca. Abr. 213. (5) 3 Br. C. C. 448; 2 Cox, 258. had six children only living, a seventh having been born and died. Several children were born afterwards, of whom the plaintiff was the first, and he claimed the legacy as being the seventh: but it was held that as he was in fact the eighth in order of birth, he could not take, and the Court decreed in favour of the youngest child. Here the testatrix meant that a son born after the date of the will should take, without reference to his dying in her lifetime, which she cannot be taken to have contemplated. Suppose Henry had left issue-would they be excluded? That would be a palpable violation of the testatrix's intentions; yet if it is to be assumed that the will has reference to the period of her death, that will follow but if she contemplated his dying in her lifetime, she must also have contemplated the possibility of his leaving issue. It was a well understood rule, before the recent statute, that as to personalty a will *spoke from the death, but as to realty from its date. Second is a relative term, and always respects the question whom the testator means as the first. Did not this testatrix refer to the first son then living? If so, she must have meant the second relatively to him—that is, Henry, who was the next born. In Driver v. Frank, no doubt the party who was held entitled was the second son at the death; but the question was not between him and a son born after the date of the will. Lomax v. Holmden is certainly irreconcileable with the defendant's argument. Richards, in reply: As to the argument, what would have been the effect if Henry had left issue, supposing the legacy to lapse, as the defendant contends, they would equally lose it. In Trafford v. Ashton, the son who took was a son born after the death of the testator; the law then looks to the state of the family at that time, and they take as they afterwards come in esse. West v. Lord Primate of Ireland turned on the particular words of the devise. But Lomax V. Holmden is decisive for the plaintiff. LORD ABINGER, C. B.: It appears to me that this case is governed by Lomax v. Holmden. All the argument in favour of the defendant is put to flight as soon as you get out of the difficulty of taking the second son in the order of birth. The testatrix could not mean that second son, because at the date of her will only one was living. Then whom did she mean? The defendant says, the second with reference to the first KING V. BENNETT. [ *40 ] KING v. BENNETT. [*41] [ *42] It is said, The same then living: but I do not agree in that construction. Suppose the BOLLAND, B.: I am of the same opinion. It could not be said that William George could in any view be considered as the second son. That being so, to what are we to look in order to satisfy the will? It seems to me, to the state of circumstances at the time of the testatrix's death. It might be that knowing the eldest son would be otherwise provided for, she did not mean in any case to make him the object of her bounty. ALDERSON, B.: I am of the same opinion. If you take the period of making the will, the testatrix could not contemplate a gift but to a party thereafter to be born: for William George could not fulfil her intention, either in the order of birth or with reference to present circumstances he had been the third son, and was then the first. Then the rule laid down by Lord HARDWICKE is, that if the will cannot apply to any person in existence when the will was made, we must look to the time of the testator's death. If so, John was clearly the second son at that time, and fulfilled the terms of the will. It is said that Henry, who was afterwards born, was contemplated. That is directly in conflict with the principle laid down by Lord HARDWICKE, that the will shall not speak from those intermediate periods. My brother Stephen puts the case of his having left issue then they would have lost the property, even on his own argument, it being a case of lapse. West v. Lord Primate of Ireland is distinguishable; the Court there looked at the death of the executor of the testator, as the period of time to which the will was to apply. At the time of the testator's death, no seventh child of Lord Cantalupe was living; but at the death of the executor, Lady Matilda West was the youngest, and therefore the only person who could take. Judgment for the plaintiff. RHODES v. SMETHURST, ADMINISTRATRIX OF HOBSON. DECEASED. (4 Meeson & Welsby, 42-66; S. C. 1 H. & H. 237; 7 L. J. (N. S.) Ex. 273; 2 Jur. 893.) It is no answer to a plea of the Statute of Limitations, that, after the cause of action accrued, and after the statute had begun to run, the debtor, within the six years, died, and that (by reason of litigation as to the right to probate) an executor of his will was not appointed until after the expiration of the six years, and that the plaintiff sued the executor within a reasonable time after probate granted. ASSUMPSIT on a promissory note for 2,500l., dated the 13th May, 1818, made by the intestate James Hobson in his lifetime, payable to the plaintiff or order on demand. There were also counts for money lent, money had and received, interest, and on an account stated. Third plea, actio non accruit infra sex annos. Replication thereto, so far as the same related to the first count of the declaration, that the cause of action in that count mentioned accrued to the plaintiff within six years next before the time of the death of the said James Hobson, to wit, on the 1st of May, 1829; and that afterwards, to wit, on the 13th day of May, 1830, the said James. Hobson died, having theretofore, on the 8th day of February, 1817, signed a certain testamentary paper purporting to be his last will and testament, and thereby then named and appointed the plaintiff and one Betty Hobson, (which said Betty Hobson died in the lifetime of the said James Hobson,) executor and executrix thereof, and having afterwards in his lifetime, to wit, on the 11th day of December, 1829, signed a certain *other testamentary paper also purporting to be the last will and testament of him the said James Hobson, wherein no person was named as executor thereof; and the plaintiff further saith, that shortly after the death of the said James Hobson, and before the grant of the administration of the goods and chattels, rights and credits of the said James Hobson deceased, at the time of his death, to the defendant, or any other person, to wit, on the 1st day of October, 1830, the plaintiff applied to the proper Ecclesiastical Court, that is to say, to the Consistory Court of Chester, |