they did not claim any thing of which the will purported to dispose.

For the defendant, Sir John Trollope, it was replied, that the portions of 5000l. were charges upon the estates of his mother, Lady Trollope, over which his father had a power of appointment: - that these charges were clearly intended as a substitution for the appointment of the premises: —that the plaintiffs could not claim under the limitation over in default of appointment, without defeating the express provisions of the will: and, therefore, that they could not take the portions and also the

estates.

Vice Chancellor.-This question is occasioned entirely by an accidental slip in drawing of Sir John Trollope's will.

Sir John Trollope being about to intermarry with Miss Thorold, who was then under twenty-one years of age, an arrangement is entered into for the settlement of the estates of both parties; and with this view, two sets of articles are executed, both made on the same day, though not contained in one instrument:-the first set relating to the estates of the husband; the second, to the property of the wife. By Sir John Trollope's articles, all his estates are limited to the use of himself for life; then, subject to a term for securing a rent charge to Lady Trollope, to the use of the first, and every other son, in strict settlement; in default of issue male, remainder to such uses as Sir John Trollope should appoint; remainder to his collateral relations; with the reversion ultimately to his own right heirs.

Miss Thorold's articles, after confirming her father's estate for life, and giving certain premises to Sir John Thorold in fee, settled the rest of her real property on him for life; remainder to the lady herself for life; remainder to such uses for the benefit of all and every or any of the children of the intended marriage, as Sir John Trollope should, by deed or will, appoint; in default of appointment, then to the use of the children in equal shares, as tenants in tail; remainder to such uses as the lady should appoint; and in default of appointment by her, to the use of Sir John Thorold, in fee.

It is to be remarked, that, in these settlements, there is no provision for the younger children, except the power given

to the husband, to appoint the wife's estates to one or more of the children of the marriage, and the limitation over, in default of appointment, to all the children equally, as tenants in common. That power is obviously introduced for the purpose of enabling the husband to make a provision for younger children.

Sir John Thorold made his will in 1809. At the very outset of it, there is a circumstance of considerable singularity for he gives to Lady Trollope, for a certain time, the mansion-house, situate upon the estates, which, under his own articles, would go to his eldest son. He does not affect to divest his son's interest, but he gives Lady Trollope the mansion-house, till the son attains the age of twenty-one years. He then recites his own articles in the very words in which they are framed. It is remarkable, that he does not take the least notice of the lady's articles, though they, in the estimation of a court of justice, form one part of the agreement. After the recital, he says, "And whereas, no settlement has been made in pursuance of the said agreement, I confirm the said agreement, and direct that the same shall be performed." This merely expresses his intention, that the limitations, contained in his own articles, should remain. It does not alter the interests or estates thereby created. It cuts out the power of appointment which intervened between the limitation to the issue of the marriage, and the limitation to the brothers of the settlor: but it completely recognizes and ratifies all the other purposes of that settlement.

He then says, "I give and devise to my said wife, all and singular my messuages, lying and being at Fisherton," &c. These messuages were part of the wife's property, but were given, by her articles, to the testator in fee. The testator, it is clear, considered, that he had a right to dispose of these premises, and he had such a right only under his wife's articles. This devise, therefore, shows, that these latter articles, though not recited in the will, were present to the mind of the testator, while he was making his testamentary arrangements. That they are not recited, is, doubtless, an accidental slip.

Having given his wife this interest, he proceeds to say, "I give and devise, and

by virtue of every power enabling me in that behalf, I appoint to John Linton, and Thomas A. Trollope, &c. all the manors, &c. agreed to be settled as aforesaid :”— which words, I grant, must be read as confined to the estates which were settled by his own articles; but he adds immediately, "and all other the manors, messuages, &c., both freehold and copyhold, belonging to me, or over which I have a power of appointment." The words with which this clause begins, and those with which it ends, must determine what this testator meant to pass to Linton and Trollope upon the trusts which he has declared. Now, the words here are very general and comprehensive; for he gives every thing belonging to him, or over which he had any power of appointment: and it is the settled rule of a Court of Equity, that general words of this description, unless plainly narrowed and qualified by precedent, or subsequent words, will carry all that they comprise in their natural import, that is, every thing which the testator could, by power of appointment, or otherwise, affect. Therefore, unless it can be shown that there are other expressions which modify the unrestrained sense of this clause, a court of justice must allow them their full operation; and it lies upon those, who support the interest of the younger children, to show, that these words do not comprise all that in their natural import they comprise, that they do not comprise the estates, given by the mother's articles, to be appointed among the children, as Sir John Trollope should, by deed or will, direct.

For the younger children, it is said, that the larger sense of the words is thus to be narrowed the testator must be supposed to have intended to comprise only those premises, over which he had such a power of appointment, as would enable him to appoint in the manner in which he has done here Now, upon looking at the lady's articles, it will be found, that, though he had a power of appointing his estates, yet he had no power to limit them in the mode in which they are limited by this clause therefore, the clause ought not to be construed as extending to these estates.

It certainly cannot be argued, that Sir John Trollope had, under the articles, a power to make snch an appointment of the

wife's estates, as he has here made. He has created a term, subject to which he has given the estates to his first and other sons in tail male, with remainder over to others. The power, under the articles, was to appoint to one or more of the children of the marriage; if he made no appointment, there was a limitation in favour of all the children; and if there were no children, Lady Trollope had a power of appointment. This appointment is, undoubtedly, not an appointment according to his power: and, if it prevails, the interests of the daughters, under the limitation over in default of appointment, are gone; and Lady Trollope's power of appointment is gone too.

I find, however, great difficulty in yielding to this argument. The only provision made by the articles for the younger children, consisted of the power given to the husband, to appoint the wife's estates among them, and of the limitation over in their favour. Now that, which was the object of his power, is, also, the very first object of the appointment which he has here made for the appointment is upon certain trusts, the first of which is, to raise portions for the younger children out of those very estates, over which he had a power of appointment for their benefit. The very nature of the property, and the manner of the exercise of the power, would lead one, extrajudicially, to say, that the testator must have intended the portions to be a substitute for that provision which the younger children would take, if he did not exercise his power of appointment; and that he thought it more convenient to raise a reasonable and definite sum for them out of these very estates, than to apportion among them the estates themselves. That, however, would be but conjecture; and I should hesitate to proceed judicially upon it.

The satisfactory answer to the observation is found in the will itself. The argument is, that Sir John Trollope did not mean that his devise and appointment should extend to these estates, because his power was not absolute but qualified; and the appointment here made is one which he could not make in the due exercise of that power. Now, in the first place, I say, that it was not his purpose, in framing his will, to make only those dispositions which his wife's articles authorized him to make,

He adopts, in the most express words, the limitations of his own estate, and extends them to his wife's. He had in his view, the principle of election; and, with reference to it, he made, and knowingly made, dispositions which he had, legally, no right to make. The argument of the plaintiffs, therefore, must go for nothing; because it proceeds upon the supposition, that it was the intention of the testator to do only that which he had legal authority to do; and that supposition is refuted by the plain tenor of the will.

This is not all: for, secondly, there is an express clause, which orders, "That every person claiming a benefit under his will, shall be bound to give effect to every disposition and direction therein contained, and that no one of his daughters or younger sons shall be entitled to claim any provision under him, or out of his settled or unsettled property, other than the provision made for him or her respectively, under his will." The testator considers, that he has purchased the rights, which he has given by that will. He tells us, on the face of the instrument, that he is sensible that he has exceeded his strict legal authorities, but that he conceives himself to have done that which was most for the benefit of the family, and to have secured his younger children a provision more advantageous to thein, than what the settlement gave them :-that he knows, that they may claim under the settlement, against his disposition :—and that his purpose is, that, if they do so claim, they shall lose the benefits intended for them by the will. The argument for the plaintiffs, in effect, insists, that the testator must be taken to mean, not what he has said, but the contrary.

Upon the whole, I am of opinion, that, if Lady Trollope claims under the will, she must settle her own estates to the uses of the will, and that, in such case, the younger children cannot claim any part of these estates, as tenants in tail, under the articles.

decease, their debts, &c. to be paid; He then gives various legacies, and bequeaths the residue to his nephew:-Held, that the daughter takes the personal property absolutely, and an estate tail in the real property, and that the legacies were meant to be given only upon the failure of heirs of the body of that daughter.

John Champion made his will, duly exe cuted and attested, in the following words: "First, I will that all my debts and funeral charges be fully paid and discharged. First, I give to my only daughter, Rachael Champion, and her heirs, my estate, lands, and tenements, my goods, cattle, and chattels, ready money, and securities for money, and whatever to me belongeth, and at their decease, their debts and funeral charges to be fully paid and discharged; first, I give and bequeath unto my niece, Sarah Bell, the sum of 501. good lawful money; item, I give to my niece, Mary Williams, the sum of 50%.; item, I give to my niece, Sarah Bennett, the sum of 50l.; item, I give to my nephew, Matthew Hart, the sum of 501.; item, I give to my niece, Mary Wilson, the sum of 50l.; item, I give to my niece, Mary Widdison, the sum of 1007.; item, I give to my niece, Elizabeth Newstead, the sum of iool.; item, I give to my nephew, John Widdison, the sum of 100l.; item, I give to my nephew, Robert Widdison, the sum of 100l. residue and remainder of my freehold estates, lands, and tenements and hereditaments, with my goods, cattle, and chattels, and whatsoever to me helongeth, I give to my nephew, William Widdison, and his heirs, and I appoint him the sole executor of this my last will and testament."

The

The testator left him surviving Rachael, his only daughter and heiress at law, and likewise the various legatees named in the will.

The bill was filed to ascertain the rights of the parties. Two questions arose upon the will: First, What interest did the daughter take under the will? Secondly, Whether the legacies were payable at all; and if payable, at what time?

Mr. Heald and Mr. Cooper, for William Widdison.

Mr. Bell, for the daughter.

Mr. Teed, for the legatees.

For the plaintiff it was contended, that

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by the word" heirs" in the bequest to Rachael Champion, the testator must have meant children;" for he had directed their debts and funeral charges to be paid. Such a provision was compatible only with a limited interest; it was a clause without meaning, if it affected to modify a fee. The true construction, therefore, was, that the property was given to the daughter for life; remainder to her children for life; remainder, subject to the legacies, to William Widdison.

Mr. Bell insisted, that, as the limitation over was to the cousin of the first taker, the gift to Rachael Champion and her heirs, was a gift to her and the heirs of her body.

For the legatees, it was argued, that present legacies were clearly given to them.

Vice Chancellor.-This is a will made by a person grossly ignorant; still the principles of fixed legal interpretation must be applied to it; and if there be a construction, which will make every part of it sensible and coherent, that construction must prevail.

I cannot agree with the argument, that it gives present legacies to the several nephews and nieces mentioned. It is impossible to contend, that the gift to the daughter was not meant to carry, and does not carry some interest in all that the testator had in the world. He clearly had it in contemplation to give his daughter and her heirs some interest (of whatever duration,) in the whole of his property. Those, therefore, who insist, that he had an intention to give present legacies to various legatees, say what is absurd; for such legacies could not take effect, except by an infringement of the former express bequests. All that he had being bequeathed in the 'first place to his daughter and her heirs, there could be no present gift of any part of it to other persons.

The construction I must adopt, is this. He gives an interest to his daughter in all the property which he had in the world, but an interest which he considered might in some manner determine. Then looking to the determination of that interest, he directs what upon that event is to be done; first ordering certain legacies to be paid, and then giving the residue of his real and personal estate to William Widdison, in the

very words in which he had before given it to Rachael Champion.

The question, then, is,-What is the interest, which he has here given to his daughter, and which he considered to be determinable; for it is not because he considered it to be determinable, that it will determine contrary to the rules of law. Now the words of devise and bequest to the daughter are,-"I give to my daughter, Rachael Champion, and her heirs, my estates, &c. and whatsoever to me belongeth." Afterwards, he directs how the property is to go upon the determination of this interest; charging it in that case with certain legacies, and giving the residue to William Widdison. But William Widdison, being his nephew, was included in the line of heirs of the daughter. Therefore, in the gift to Rachael Champion and her heirs, the testator meant, not heirs general, but heirs of her body; and the directions as to what is to be done upon “their decease," that is, upon the decease of his daughter and her heirs, must refer to the failure of heirs of her body, and not of her heirs general. Thus, the construction will be, that the property is given, in the first place, to Rachael Champion and the heirs of her body, and that, upon failure of heirs of her body, it is to go, subject to certain legacies, to William Widdison.

But then, it is said, that there are words which alter this construction, and convert what thus appears to be an estate of inheritance in the daughter, into an estate to her for life, remainder to her children for life, remainder over to William Widdison. It is a monstrous intention, which we impute to the testator, if we suppose, that he meant to exclude his own grand-children from his property, and to prefer his nephew to them. But we are told, that we must impute this intention to him, because he has said, that "at their decease, (that is, at the decease of his daughter and those whom he describes as her heirs,) their debts and funeral charges are to be paid;" and this direction, it is argued, was probably meant to apply to the debts of his daughter and her children. I will not deny, that it may have been so meant; but what is there in such a direction to cut down the estate before created, and to change totally the character of the gift?

An equitable mortgagee of property be longing to a bankrupt, who has written evidence of the mortgage, will be allowed the costs of his petition for the sale of the premises, though the petition further prays, that he may be at liberty to be a bidder at the sale.

This was a petition by an equitable mortgagee of property belonging to the bankrupt, praying, that the premises might be sold, that the petitioner might be at liberty to bid for them, and that the proceeds of the sale might be applied in satisfaction of his debt.

The pledge was not created merely by deposit there was a written agreement for a mortgage.

Mr. Tinney, for the petition, stated, that the only difficulty was with respect to the costs. As the pledge was proved by a written document, the petitioner was entitled to the costs of the petition, so far as it was a petition for the sale of the premises; * but it prayed also, that he might be at liberty to bid for the premises, and in that respect, he was not entitled to costs.

The Vice Chancellor thought, that the expense of the petition for the sale of the premises was not increased by the introduction of the prayer for liberty to bid at the sale, and, therefore, allowed the petitioner his costs generally.

by moduses ;-this constitutes a prima facie case for the moduses; and it becomes the business of the plaintiff to overthrow them, not that of the defendant to sustain them.

The bill was for an account and payment of tithes; the answer insisted on various moduses as a defence to the claim.

Mr. Sugden and Mr. Van Heythuysen, to prove the title of the plaintiff to the tithe of the lands in question, read certain passages from the answers of the defendants, in which the defendants, though they admitted facts constituting a prima facie title of the plaintiff, insisted on their belief, that as to certain matters, they were protected from the payment of tithes by good moduses. It was then argued, that the plaintiff having shown a prima facie title, it was incumbent on the defendants to establish the moduses, which they had set up.

Mr. Bell, contrà, alleged, that the plaintiff, by the evidence which he had employ

ed to establish his title as tithe-owner, had himself made out a prima facie case for the moduses. The moduses, therefore, must be held to be good, unless satisfactory evidence to impeach them was adduced. To adduce that evidence was the duty of the plaintiff.

Vice Chancellor.-The plaintiff, to make out his own title, has read passages from the answers, in which the defendants state their belief, that as to certain titheable matters, the lands in question are covered This constitutes a prima by moduses. facie case against the plaintiff; and under these circumstances, it is his business to overthrow the moduses, not that of the defendants to sustain them.