such last renewal, as claimed by the Plaintiffs, was Sil. 3s. 4d.; but, in the event of the Defendant being liable to reimburse the Plaintiffs such part only of that sum as may be applicable to the Defendant's interest in the said premises, and to the period which would elapse between Lady-day, 1833, (when the Defendant's present lease would expire) and Christmas, 1834, (up to which time only he would be entitled to have the term granted to him and his brother enlarged, being one year and nine months, or thereabouts,) then his proportion of the above sum would be no more than 217. The Plaintiffs declared in covenant on the lease of the 20th November, 1816, for 817. 3s. 4d., stating that sum under a scilicet as having been paid by them in respect of the premises demised to the Defendant and his brother, for the fine and fees on the last renewal. The Defendant pleaded that the Plaintiffs ought not to have their action for more than 217. stating that such part of the said fine and fees upon such renewal as aforesaid, in respect of the premises demised to the Defendant, amounted to 217. and no more, and a tender of that sum to the Plaintiffs, with a profert in curiam of the money tendered. The Plaintiffs replied, that such part of the said fine and fees so paid upon such renewal as aforesaid, in respect of the demised premises, amounted to a larger sum than 217., to wit, the said sum of 817. 3s. 4d. mentioned in the declaration; whereupon issue was joined. The question for the opinion of the Court was, whether the Plaintiffs were entitled to recover more than the sum of 217. paid into Court. If so, the verdict was to stand; but, otherwise, a nonsuit was to be entered. Taddy Serjt., for the Plaintiffs, argued that, from the express words of the covenant, and the length of the term granted to the Defendants, it was evident they intended 1820. CHARLTON บ. DRIVER. 1820. CHARLTON ข. DRIVER. intended and undertook to pay fines and fees from time to time, and to an amount more than commensurate with their interest in the premises. Sed per Curiam. It is a reasonable, and almost a necessary, construction, that the Defendants intended to pay only fines commensurate with their interest in the premises. Let there be a Nonsuit entered. 1820. HENRY WARTER and MARGARETTA MARY ELIZA BETH WARTER, Infants, by their next Friend, V. JOHN HUTCHINSON (surviving Trustee), and MARGARETTA ELIZABETH WARTER, an Infant, by JANE WARTER, her Guardian. And JANE WARTER, Widow, and MARGARETTA ELIZABETH WARTER, by the said JANE WARTER her next Friend, v. JOHN HUTCHINSON and HENRY and MARGARETTA MARY ELIZABETH WArter, by their next Friend and Guardian. THESE bills having been filed by the respective parties, for the purpose of carrying into effect the trusts of the will hereinafter stated, and declaring the rights of the several parties, the causes came on to be heard Nov. 17. T. M. devised lands to trustees, their heirs and assigns, until his nephew, J. R. M W., son of his sister M. W., should attain 21; and if he should die in the mean time, until H. W., second son of M. W., should attain 21; and if H. W. should die in the mean time, until the daughter of M. W. should attain 21; in trust, to raise out of the rents, or by sale or mortgage, 2000l., and pay the same to H. W., when he attained 21; and if M. W. should have more than one younger child, to raise out of the rents 3000l., and pay the same among such younger children, share and share alike, when they should severally attain 21; and, upon further trust, to apply a proper sum out of the rents, for the education and maintenance of J. R. M. W. till he should attain 21, and then to pay him the residue of them, if any should remain after performance of the before-mentioned trusts; and, if J. R. M. W. should die before 21, then to apply a sufficient sum from the rents for the education and maintenance of H. W. till he should attain 21, and then to pay him the residue of the rents, if any should remain after performance of the before-mentioned trusts, and in the mean time to place out at interest, for the benefit of his nephews, the money arising from the said rents; and, when J. R. M. W. should attain 21, or, in case of his death, when H. W. should attain 21, or, in case of his death, when the daughter of M. W. should attain 21, to the use of J. W. and his assigns, for life, sans waste; remainder to trustees, to preserve contingent remainders; and, after the death of J. R. M. W., to the use of the first, second, third, and all and every other son and sons of the body of J. R. M. W. lawfully issuing, severally, successively, and in remainder, according to priority of birth, and of the several and respective heirs male of his and their respective body and bodies lawfully issuing, the elder always to take before the younger, and the heirs male of his and their body and bodies issuing; and, in default of such issue, to the first, second, and third, and all and every other daughter and daughters of the body of J. R. M. W. lawfully issuing, severally and successively, according to priority of birth, and of the heirs male of the respective body and bodies of such first and other daughters lawfully issuing, the elder of such daughter and daughters, and the heirs male of her and their body and bodies, always to take before the younger of them, and the heirs male of her and their body and bodies issuVOL. II. Сс ing; 1820. WARTER heard before his Honor the Vice-Chancellor, on the 17th March, 1820, when the following case, in substance, was ordered to be stated for the opinion of this WARTER. Court: Thomas Meredith, of Pentrebychan Hall, in ing; and, for the county of Denbigh, by his will, dated the 8th default of such sans waste; re of his sons as to the sons issue, to the use September, 1801, duly executed and attested to pass of H. W. and his real estates, (after directing payment of his debts assigns, for life, and funeral expenses,) devised his capital and other mainder to trus- messuages, tenements, lands, and hereditaments, with tees, to preserve their respective appurtenances, charged with two ancontingent uses and estates, and nuities, to trustees, their heirs and assigns, until his then to the use nephew, John Warter, the son of his sister Margaretta and daughters, Warter, should attain the age of 21 years; and, if he in like manner should die in the mean time, until Henry Warter, the second son of the said Margaretta Warter, should arrive and daughters of J.W.; and, at that age; and, if the said Henry Warter should die for default of in the mean time, until the daughter of the said Marthe use of his garetta should arrive to that age; upon trust, among other things, to raise out of the rents and profits of the premises, or by sale or mortgage thereof, or of a comsigns, for life, petent part thereof, the full sum of 20007., together sans waste, and with all costs and charges attending the raising of the of her sons and same, and to pay the same to the said Henry Warter, daughters, in the younger son of his sister Margaretta Warter, as soon as he attained the age of 21 years; and, if his sister should happen to have more than one younger child, to raise out of the rents, issues, and profits of the premises, the full sum of 30007., and pay the same to of such issue, and amongst such younger children, share and share such issue, to niece, the daughter of M. W., and her as then to the use like manner as to the sons and daughters of J. R. M. W. and H. W.; and, for default to the use of M. W. in fee: Provided that whoever became possessed of the lands should take devisor's name, and live in his house, otherwise the devise to be void as to the person refusing; his plate and furniture to remain in the house as heir-looms. T. M. died, leaving his sister M.W., her sons, J. R. M. W., H. W., and three younger children, alive. J. R. M. W. married, and died under age, leaving a daughter, M. E. M. W. Held, that, on the death of J. R. M. W., M. E. M. W. became entitled to the lands devised, as tenant in tail male, subject to the annuities, &c.; that the heir-looms, being personalty, vested in her at the same time, and that she was entitled to the possession of them; and, that the personal representative of J. R. M. W. was entitled to the savings of the rents and profits of the estates accrued in the life-time of J. R. M. W1, subject to the annuities, &c. ages 1820. alike, as soon as they should severally attain their of 21 years; and, upon further trust, to pay and apply a proper sum of money, arising from the rents and profits of the premises, for the maintenance and education of his nephew, John Warter, till he should arrive to the age of 21 years; and, when John Warter should attain that age, to pay him the residue of the rents, issues, and profits of the premises, if any should remain after performance of the before-mentioned trusts; and, if John Warter should happen to die before he attained the age of 21 years, then to pay and apply a sufficient sum of the money arising from the rents and profits of the premises, for the maintenance and education of his nephew, Henry Warter, till he should attain the age of 21 years; and, when Henry Warter should arrive at that age, then, upon trust, to pay him the rest and residue of the rent, issues, and profits of the premises, if any should remain in their hands after performance of the before-mentioned trusts; and, in the mean time, to place out the money arising from the rents and profits of the premises, at interest, for the benefit and advantage of his said nephew; and when and as soon as John Warter should attain the age of 21 years, or, in case of his death, when and as soon as Henry Warter should arrive at that age, or, in case of his death, when and as soon as the daughter of Margaretta Warter should arrive at the age of 21 years, he gave and devised the premises, with their respective appurtenances, subject as aforesaid, to the said trustees, their heirs and assigns, to the use of his nephew, John Warter, and his assigns, for life, sans waste; remainder to trustees, to preserve contingent remainders; and, after the decease of John Warter, to the use of the first, second, third, and all and every other son and sons of the body of John Warter lawfully issuing, severally, successively, and in remainder, as they and every of them should be in priority of birth and seniority of age, and of the Cc 2 several WARTER V. WARTER. |