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referring to the will by date she revoked the gift in favour of E. and otherwise confirmed her will : by a second codicil, referring to the will and not referring to the first codicil, she devised real estate acquired after the date of the will to trustees upon the trusts in her will contained concerning residuary real estate, and in other respects confirmed her will : Held that the second codicil did not revoke the first so as to restore E, to the position of legatee, and that the whole of the real estate went according to the will as modified by the first codicil: and that the interests of E.'s children were accelerated, and till she had a child the income of the share would, so far as it came from realty, go to the trustee, and
so far as from personalty to the next-of-kin.--Green v. Tribe, 38 L.T.914. (xii.) Ch. Div. V. C. H.-Construction-Conditional Bequest.-— Testatrix
by her will, gave a legacy to B., provided that B. remained in her service: in June, 1876, she became insane, and B., who was entitled to three months notice, was dismissed by a person without authority, and against B.'s wish : in July, 1876, testatrix was found a lunatic, and an order was made for the sale of her household furniture, and in the following December the lunatic died : Held that B.'s legacy failed.-In
re Hartley's Trusts, 47 L.J. Ch. 610. (xiii.) Q. B. Div. Ireland.- Construction-Condition Precedent-Mixed
Fund.-Gift of real and personal property to testator's wife, on the con. dition that she should retire immediately after testator's death into a convent : Held a good condition precedent, and in default of compliance that the real estate went to the heir-at-law of testator.--Duddy v.
Gresham, 39 L.T. 48. (xiv.) C. A.--Construction-Equitable Estate.—Testator, who died in 1828,
gave real estate to trustees in fee upon trust for sole benefit of his two daughters, with direction that if either should die and leave no child, part of the estate should be sold and proceeds divided as mentioned: but that if either should leave children her share shonld go to such children after her death: neither of the daughters had children: Held that they took
as joint tenants in fee.--Yarrow v. Knightley, L.R. 8 Ch. D. 736. (xv.) C. A.- Construction – Falsa Demonstratio.- Devise of lands at or
within D. and at S. then in the occupation of G. : Held to include a small part of a farm without the parish of D. but adjoining to the rest of the farm which was in the parish, but not to include land at S. which was not in the occapation of G.-Homer.v. Homer, L.R. 8 Ch. D. 758;
47 L.J. Ch. 635 ; 39 L.T. 3. (xvi.) Ch. Div. V. C. B.-Construction--- Falsa Demonstratio. —Testator
gave a legacy of his 7,000 dollars or the produce thereof: he was pos. sessed at the date of the will and his death of 6,800 dollars U.S. bonds : Held that the gift was specific and was represented by the bonds.
Palin v. Brookes, 26 W.R. 877. (xvii.) Ch. Div. V. C. H.--Construction-Gift of Income--Gift of Corpus.
Testator by his will gave a danghter on her marriage the income of a specific sum of stock, and out of his general dividends the annual income of about £19), making in all £400 per annum, and he directed that the income of the property settled on his other daughters on their marriages should be increased out of his general dividends to £ 100 annually to each : Held that the provisions amounted to gifts of the corpus sufficient to produce the incomes indicated.- Englehardt v. Englehardt, 26 W.R.
853. (xviii.) C. P. Div.-Construction-Gift of Personal Estate and Property-Real
Estate.- Testator gave and bequeathed to his wife his household goods and all other his personal estate, property, chattels and efects whatsoever and wheresoever of which he was then seized, possessed, or entitled to or might thereafter acquire, to hold same unto his wife, her executors,
administrators, and assigns, absolutely : the will contained a formal devise of real estates vested in him as mortgagee, and trust estates to his wife and brother, their heirs, and assigns : Held, that the real estate of which the testator died seized as absolute owner did pass by the will.
— Jones v. Robinson, L.R. 3 C.P.D. 344; 38 L.T. 945. (xix.) Ch. Div. V. C. H.-Construction-Gift to Class—Period of Ascer
taining.–Gift to A. for life remainder to B., C., D., and E. in equal fourths or their respective issae: Held, that all issue born before the death of A. took under the gift, each class taking as joint tenants.
Hume v. Lloyd, Re Jones' Estate, 26 W.R. 828. (xx.) Ch. Div. V. C. M.-Construction-Gift to Daughter of A.- Personæ
Designatal-Lapse.—Gift of property to be equally divided between the five daughters of A. and B.: Held, that the shares of two of the daughters who died in testatrix's lifetime lapsed.—Re Smith's Will, 38
L.J. 905. (xxi.) Ch. Div. F. J.-Construction—Heirs—Gavelkind-Falsa Demon.
stratio.—Devise of gavelkind lands upon trust for G. for life, the re. mainder on trust for W. G., the eldest son of the said G., for life : G. had two sons, J. G. the eldest, and W. G. : Held that W. G. was the person designated in the will, and that the common law heir took ander the ultimate devise to testator's own right heirs.—Garland v. Beverley, 47
LJ. Ch. 711; 38 L T. 911. (xxii.) Ch. Div. V. C. B.-Construction—Intestacy.--Testator devised
and bequeathed to R. and P. each a muiety of the interest and rents of his real and personal property, and directed that on the death of the survivor, all his property should be sold and the proceeds divided among his then eurviving nephews and nieces : R. and P. both survived the testator: Held, on the death of P., that there was an intestacy of the income of a moiety till the death of R.-Round v. Pickett, 47 L.J.
Ch. 631. (xxiii.) Ch. Div. V. C. H.-Construction—" Issue” read " Children.”-Gift
of a fund in trust for the lawful issue of F. surviving him equally to be divided between them, if more than one child share and share alike, and if but one, then for such only child, with a gift over in default of issue of the said F. becoming entitled : Held that issue must be restricted to
children of F.-Re Hopkin's Trusts, 47 L.J. Ch. 672. (xxiv.) P. D. A. Div.-Construction-Legal Heirs.—Testator gave to H. the
income of his estate and effects and the use of his furniture, adding, “the whole after her decease goes to my legal heirs and theirs for ever :" Held that the heir-at-law took personalty as well as realty. In the goods
of Dixon, 47 L.J. P.D.A. 57 ; Todhunter v. Thompson, 26 W.R. 883. (xxv.) Ch. Div. V. C. M.- Construction – Life Interest — Repugnancy.
Testator gave all his personal property, including farming implements and stock, to his widow for life, with a declaration that she should not be accountable for any diminution or depreciation to the farming stock and implements: Held an absoute gift of the stock and implements.
Breton v. Mockett, 47 L.J. Ch. 754; 26 W.R. 850. (xxvi.) C.A.-Construction—"Moneys that may be Left.”—Testator bequeathed
the residue of his personal estate to his daughter, and by a codicil he gave all moneys that might be left after his decease on certain trusts : Held that the gift in the codicil only extended to money in testator's hands at
his death.-Williams v. Williams, L.R. 8 Ch. D. 789. 1xxvii.) Ch. Div. V. C. M.-Construction—Precatory Trust.-—Testator after
giving all his property to his wife, added, “it is my wish that whatever property my wife may possess at her death be equally divided between my children :” Held that the widow took an absolute interest.—Parnall v. Parnall, 26 W.R. 851.
(xxviii.) Ch. Div. M. R.-Construction— Precatory Trust.--Gift of testator's
property to wife absolutely with power to dispose of it as she might think fit for benefit of testator's family “having full confidence that she will do so :" Held that wife took absolutely.-Re Hutchinson and Tenant,
L.R. 8 Ch. D. 540 ; 39 L.T. 86 ; 26 W.R. 904. (xxix.) Ch. Div. V. C. M.-Construction-Residuary Gift- Real Estate.
Testator by his will, after giving pecuniary legacies, gave his sheep and the rest, residue, and all moneys, chattels, and other his effects, to be equally divided between his brothers: Held that his real estate passed by
the gift.-Smyth v. Smyth, L.R. 8 Ch. D. 561. (xxx.) Ch. Div. V. C. H.-Construction--Specific Gift-After-Acquired
Property-Annuity.- Gift of real and personal estate to wife for life subject to annuity to son if he should attain twenty-one before he became entitled in possession to the C. estate, to be paid from bis majority till wife's death : after her death gift of leaseholds at C. to son, residue for benefit of children: Held that leaseholds purchased by testator just before his death, and subsequent to will passed under the bequest of C., freed from any burden in respect of purchase-money paid by the executors, and that the annuity was payable to son's adminis
trator after son's death intestate.—Dickenson v. Dickenson, 26 W.R 880. (xxxi.) Ch. Div. V. C. M.-Conversion.—Testator devised and bequeathed
his real estate employed in his different businesses, and his personal estate, to wife for life, remainder to his sons as tenants in common : after his death, the widow and sons carried on the testator's different businesses till widow's death, when the sons only carried on one of the businesses, and employed the moneys arising from the sale and mortgage of parts of the real estate in that business : on the death of a son in. testate : Held that his share of the realty had been converted.—Cooper v.
Cooper, 26 W.R. 785. (xxxii.) Ch. Div. M. R.-Gift over an Alienation.— Testator made a bequest
to his wife for life, with remainder to his son, if at the wife's death he should not have done anything which would make the subject of the bequest payable to, or vested in, or chargeable for the benefit of any other person : but if before the decease of the wife he should have done so, then over on other trasts : the son assigned, by way of mortgage, all his interest under the will subject to the proviso or condition in the will contained : the mortgage was paid off before the death of the tenant for life : Held that there was no forfeiture of the son's interest.
Samuel y. Samuel, 47 L.J. Ch. 716. (xxxiii.) Ch. Div. M. R.–Married Woman-Appointment- Accumulation.
A married woman entitled to a life rent charge for her separate use made a will appointing her separate estate, became a lanatio, svrvived her husband, and died without republishing her will: her rent charge having been accumlated during her husband's life and after his death : Held that the will operated as to the accumulations during her husband's lifetime only and the interest thereon: cost of administration, with will annexed, ordered to be paid out of the fund which passed by the will.
Menteath v. Campbell, Re Wilson's Estate, 26 W.R. 848. (xxxiv.) Ch. Div. V. C. H.--Share of Profits-Apportionment -- 33 & 34
Vict., c. 35.-Direction to trustees to apply a share of the
ALL REPORTED CASES,
Law Reports, Law Journal Reports, Law Times
Reports, and Weekly Reporter.
By HENRY M. KEARY, of Lincoln's Inn, Barrister-at-Law.
FOR NOVEMBER, DECEMBER, 1878, AND JANUARY, 1879.
Administration :(ix.) Ch. Div. V. c. M.--Costs—Fund Provided by Testator—Lapsed
Share.—Testator devised his real estate to a brother who predeceased him, and bequeathed his personal estate on trusts after payment of debts, funeral, and testamentary expenses, for his nephews and nieces : Held that the expenses of administration must fall on the personalty.
Jones v. Caless, L.R. 10 Ch. D. 40; 39 L.T. 287; 27 W.R. 108. (x.) Ch. Div. V. C. H.-Legacy to Bankrupt Debtor-Set Of— Retainer.
A week before the death of testatrix a debtor to her, who was a legatee under her will, became bankrupt. The debt was never proved, nor was any dividend declared in the bankruptcy: Held that the testatrix's ex. ecutors were not entitled to set off or retain the amount of the debt against the legacy, nor any amount in respect of dividend on the debt.
Hodgson v. Fox, L.R. 9 Oh. D. 673; 48 L.J. Ch. 52; 27 W.R. 38. (xi.) C. A.-Mortgage Debt-Exoneration–17 & 18 Vict., c. 113; 30 & 31
Vict., c. 69.-A charge of just debts on part of testator's real estates in exoneration of the rest is not sufficient expression of contrary intention to avoid the operation of Locke King's Act. The Act applies to a mortgaged estate, different portions of which are devised to different persons.Newmarch v. Story, L.R. 9 Oh. D. 12; 48 L.J. Ch. 28; 39 L.T. 146; 27
W.R. 104. (xii.) Ch. Div. V. C. H.-Scotch Assets-General Administration.—The
Probate Div. having granted general probate of the will of a Scotch testator, the Ch. Div. made the ordinary decree for administration of the personal estate, without limiting it to English assets.-Stirling-Maxwell
v. Cartwright, L.R. 9 Ch. D. 173; 47 L.J. Ch. 845. Agreements and Contracts :(v.) H. L.-Building Contract-Extra work-Certificate. -A contract for
the construction of buildings for a lump sum, provided that no alterations should be made without a written order from the employer's engineer:
the contractors, finding it impossible to make girders of a certain nature specified in the contract, were allowed to make them of a greater weight, and the weights were entered in the engineers' certificates : Held that these were not written orders; and that the contractors were not entitled to any extra payment in consequence of the increased weight
of the girders.—Tharsis Sulphur Co. v. McElroy, L.R. 3 App. 1040. (vi.) C. P. Div.-Construction-Deficiency in Quantity of Spirits-Loss of
Alcoholic Strength.-A dock company agreed that they would be answerable for deficiencies in quantity in wines and spirits stored by them beyond a certain amount: Held that they were not, under the agreement, liable for a diminution of the alcoholio strength of brandy; but that if such diminution was caused by their negligence, they were liable apart from the contract.- Lamare v. St. Katherine's Dock Co., 39
L.T. 330. (vii.) C. A.-Construction To make as soon as possible-Special Purpose
Damages.-Defendant knowing that plaintiffs had agreed with J. to make a machine within two months, agreed with plaintiffs to make a part of it as soon as possible. Defendant did not make the part until after the expiration of the two months, and J. refused to accept the machine : Held that defendant was bound to perform his contract within a reason. able time to be measured by what would with most manufacturers be regarded as such, and that he was liable for the damages to plaintiff resulting from the breach of contract with J.-Hydraulic Engineering
Co. v. Mc Haffie, 27 W.R. 221. (viii.) C. P. Div.-Contract by Letters-Statute of Frauds.--Where it appeared
from the correspondence between the parties that some of the terms of an agreement which required to be in writing had been arrived at, but the letter containing the agreement contained a statement that the writer had many other observations to make, and that they could afterwards talk the matter over, and then put the whole on stamped paper : Held that there was no contract between the parties.—Bertel v. Neveux,
39 L.T. 257. (ix.) C. A.- Contract Induced by Fraud-Property in Goods-Bills of Lading.
-The agent of L. was induced by fraud to enter into contracts for the sale of wine to three persons, and he gave them the bills of lading of the wine, which was deposited with a dock company. The wine was then pledged to the plaintiffs to secure advances, who received the dock warrants issued by the company: Held that the plaintiffs had a lien on the wine for the money advanced by them as against L.-Attenborough v.
St. Katherine's Dock Co., L.R. 3 C.P.D. 450. (x.) Q. B. Div.-Contract induced by Fraud-False Pretences-Innocent
Purchaser—24 & 25 Vict., c. 96, s. 100.—Plaintiff bought sheep from W., who obtained them from defendant for a cheque on a bank where he had no account: Held that the property in the sheep having passed to plaintiff before defendant had avoided the contract, the provision for restitution upon conviction in sec. 100 of 24 & 25 Vict., c. 96, did not
apply.-Moyce v. Newington, 39 L.T. 535. (xi.) C. P. Div.-Infant Promise of Marriage, Ratification—37 & 38 Vict.,
c. 62, s. 2.-No action can be brought for breach of promise of marriage made during infancy, notwithstanding a ratification having been made after full age.—Cochead v. Mullis, 47 L.J. C.P. 761; 39 L.T. 349; 27
W.R. 136. (xii.) C. A.-Informal Agreement-Condition Precedent.—A builder sent in
a tender, to which plaintiff's agent replied by letter, accepting and adding, “The contract will be prepared by Messrs. A. and C. :" Held a binding contract.-Lewis v. Brass, L.R. 3 Q.B.D., 667.