Mr. C. P. Cooper and Mr. Rogers, for the residuary legatees, contended, that the will of Mary Sophia Elliott was a valid execution of the power of appointment given by her father's will, as to the whole of the funds over which the power was given; and that by such appointment a sufficient part of the funds to produce 150l. per ann., was appointed to the Rev. E. B. Elliott; and that the residue was also disposed of under the power of appointment. The following cases were cited,— s. c. 12 Law J. Rep. (N.s.) Chanc. 354. Clogstoun v. Walcott, 13 Sim. 523. The VICE CHANCELLOR stopped the arguments of counsel, until he should have heard what could be said on the other side of the question. Mr. Bethell and Mr. J. Baily, for the next-of-kin, contended, that the will of the testatrix was not a good execution of the power; she had not, in any part of the will, alluded to the power. In the bequest of the residue she had expressly used the words," my personal estate;" but whatever might have been the intention of the testatrix, she had not sufficiently evinced her desire to exercise the power. Mr. Stuart, Mr. Blunt, and Mr. Craig, appeared for other defendants. The VICE CHANCELLOR.-Upon the question as to the execution of the power of appointment, it is perfectly plain to me what was intended. I think the decision I am making is consistent with the case of Clogstoun v. Walcott. The state of the property, which is the subject of discussion, is this:-Under the will of her father, the testatrix, Mary Sophia Elliott, had an interest and a power of appointment of a certain kind over so much of a fund, which ultimately was standing in the names of the trustees, as would, if a severance of it had been made, have amounted to 10,2637. 18s. 8d. consols, and 10,8337. 6s. 8d. reduced annuities, at the time she made her will. These two sums were respectively embodied in larger sums in the same stocks. The lady commences her will by directing all her just debts and funeral expenses to be paid out of her personal estate. then makes certain specific bequests, and She says, "I give and bequeath unto my two brothers (naming them) three-fourths of onethird of the stocks standing in the names of my trustees (the four trustees of her father's will), in the 31. per cent. consols, and the 31. per cent. reduced annuities." It is not suggested that there was any property to satisfy these words, except those two sums said to represent the amount which she took under her father's will, and over which she had a disposing power. She then directed her trustees to pay the threefourths of one-third to her sister Catherine and her children, and the other one-fourth of the one-third to her nephew Henry, the son of her sister Catherine. She thereby disposes of one-third of one-third of those two sums of stock, and gives to her brother Edward as much stock as would produce 150l. per annum. The two sums which she had power to appoint would amount to about 21,1991., out of which she had disposed of one one-third, being about 7,000l., in two separate amounts; the money required to make up the annuity of 150l., would take about 5,000l. more, so that there would be 9,000l. left. After this she continues, as to all the residue and remainder of my personal estate and effects, after payment of my just debts, and funeral and testamentary expenses, and the before-mentioned legacies, I give and bequeath the same to my brother and my sister, share and share alike." Now, I never desire to swerve from the strict rule of abiding by the words of the instrument; and I consider it the duty of every Judge to endeavour to make the words speak their meaning, and to allow of no deviation. The testatrix then having given certain legacies out of her personal property alone, and having exercised the power of appointment over part of the funds. left by her father's will, by the bequest of other legacies, gives all the residue of her property for payment of her debts and her before-mentioned legacies, and the rest she gives to her residuary legatees. It appears to me that by this residuary clause the testatrix meant to refer to her general personal estate, and also to that fund which she had partially appointed by the means before referred to. On that construction, I think there is a good execution of the power. 66 Legacy-Construction-Priority of Annuitants over General Legatees. A testator gave his residuary estate to trustees, upon trust, in the first place, to pay two debts due from him on his covenants, and his funeral and testamentary expenses; and then to set apart and invest a sufficient sum to meet some annuities given by his will; and then, after such investment, to pay certain legacies. The testator's estate being insufficient to pay all the annuities and legacies in full,-Held, that the annuitants were not entitled to priority, but that the annuities and legacies must all abate rateably. This was a suit for the administration of the estate of Henry Thwaites. By his will, dated the 25th of July 1839, he bequeathed to the two first-named defendants, whom he appointed the trustees and executors of his will, 7501. each, and made several specific devises and bequests, and also bequeathed considerable legacies in favour of his children, servants, and other persons, to an amount exceeding 30,000l. And he devised and bequeathed his residuary real and personal estate to his trustees, upon trust, to sell all such parts as should not consist of money, and out of his residuary estate, upon trust in the first place to pay what was due from him to two persons under his covenant, and all his funeral and testamentary expenses; and then, upon trust, to set apart and invest a sufficient sum to answer an annuity of 100l. per annum, which the testator was bound to pay to his brother; also an annuity of 30l. per annum, which the testator directed to be paid to his niece (the plaintiff) during her life, and also an annuity of 20l. per annum, which he directed to be paid to Thomas Martin during his life; with power to the trustees to purchase government annuities, to answer these several annuities. the next place, after making such investments or purchases as aforesaid, upon trust, out of the trust monies to pay the several pecuniary legacies given by his will, with a gift of the ultimate residue to two persons in equal shares. And he directed that such of his pecuniary legacies as should not be paid within twelve months after his decease, And in should carry interest from that time at 41. per cent. The testator died in January 1840. His brother, the annuitant of 100%., died in 1841, and the plaintiff was his personal representative. Some of the legacies had been paid in full, and interest had been paid on several of the other legacies, and some payments had also been made to the plaintiff in respect of her annuity; but the executors now alleged, that the testator's estate would not be sufficient for the payment in full of all the legacies and annuities given by the will; and a question was raised, whether the annuitants were entitled to be paid in full, or whether their annuities ought to abate proportionally with the pecuniary legatees. KNIGHT BRUCE, V.C. was of opinion, that the annuitants were not entitled to any priority; and the plaintiff appealed from his Honour's decision. The appeal included another question, respecting the staying of proceedings in this suit, in consequence of another suit having been instituted for the administration of the testator's estate. Mr. Parker and Mr. Glasse, for the appellant, contended, that the trustees were to pay certain debts in the first place, and then to appropriate sufficient funds to pay the annuities; the pecuniary legacies were directed to be paid in the next place, and after the previous investments were made; and that these directions clearly shewed an intention on the part of the testator that the annuitants should have priority over the other objects of the testator's bounty. Mr. Anderdon and Mr. Goodeve, contrà, contended, that if the language of the will received the most favourable construction it could bear in support of the plaintiff's claim, it would only raise a doubt whether the testator might not have intended to give the annuitants a priority; but that the Court required such intention to be clearly expressed before it decided against the general legatees; and that the directions in this will were very similar to those in Beeston v. Booth (1), in which case Sir John Leach decided against the priority of the annuitants. (1) 4 Mad. 161. The Attorney General v. Robins, 2 P. Wms. 23. Stammers v. Halliley, 12 Sim. 42. Mr. K. Parker, Mr. Roupell, and Mr. Tripp, appeared for other parties. The LORD CHANCELLOR said, he could not reverse the decision unless he was quite satisfied that the testator intended the general legatees to be postponed to the annuitants; but he could not find anything in the will which clearly shewed any such intention, and that the decision of the Vice Chancellor must be affirmed, and the appeal dismissed, with costs. L.C. THE ATTORNEY GENERAL V. THE July 7, 8. CORPORATION OF WORCESTER. Corporation-Municipal Corporation Act -Title of Corporation of a City. The proper appellation of the corporation of a city, since the Municipal Corporation Act, is, "the mayor, aldermen, and citizens of the city." Rules for applying the interpretation clause in ascertaining the meaning of other clauses of the act. This information was filed against the corporation of Worcester, under the title of "The mayor, aldermen, and burgesses of the city of Worcester." They had put in their answer under the title of "The mayor, aldermen and citizens of the city of Worcester;" and afterwards (in January 1846) applied to the V.C. Wigram, by motion, for leave to amend their answer, by intituling it “ The answer of the defendants the mayor, aldermen, and citizens, in the information called the mayor, aldermen, and burgesses of the city of Worcester,' " and that the office copy of the answer might be amended accordingly. The Vice Chancellor gave them leave to amend the answer by substituting the word " burgesses" for the word "citizens, so as to make the title of the corporation in the answer agree with the title in the information, and to reseal the answer when altered, and the clerk of records and writs was to amend the office copy of the answer, without requiring a fresh copy to be taken. And if the defendants did not elect to take the order in that form within a fortnight, the motion was to be refused, with costs. The corporation now renewed the application before the Lord Chancellor, and moved that the order of the Vice Chancellor might be discharged. Mr. Rolt, in support of the application, referred to the 4th, 6th, 57th, 61st, 89th, 109th, 137th, and 142nd sections of the Municipal Corporation Act (1), and stated, that when the act passed, the corporation first styled themselves "The mayor, aldermen, and burgesses of the city of Worcester," and had used several different titles until January 1844, when they passed a resolution to use no other appellation than "The mayor, aldermen, and citizens," and that this title had ever since been used by them. Mr. Wood and Mr. Harwood, contrà, stated, that the corporation appeared to the information under the title of "The mayor, aldermen, and burgesses," and also used that title in taking out several warrants before the Master for time to answer; and they contended that the object of the 6th section of the act appeared to be that all corporations should have one denomination; that no injury could arise to them from being called "burgesses," as that term was used by several old corporations which were mentioned in the schedule to the act, as Bristol, Gloucester, and Wells; and that it was more important that a corporation should be correctly described than an individual, because the identity of the individual could easily be ascertained, if he were incorrectly named, but if a cor (1) 5 & 6 Will. 4. c. 76. The 4th section reserved the parliamentary franchise to freemen, using the term "burgesses," in referring to the voters of boroughs or cities. The 6th section directed that after the first election of town councillors, each corporation should be styled "mayor, aldermen, and burgesses." The 57th section directs that the mayor of every borough shall be a justice of the peace for the borough. In the 61st section Worcester is expressly mentioned as a city. In the 89th and 109th a distinction is taken between boroughs and cities. The 137th section, which saves the rights of the universities of Oxford and Cambridge, speaks of the city of Oxford and borough of Cambridge. The 142nd section is the interpretation clause, and directs, among other things, that in the construction of the act, the word borough shall be construed to mean any of the cities, boroughs, &c. named in the schedules to the act; and burgess shall be construed to mean citizen in the case of a city. poration were not rightly named, the defendant on the record would be a nonentity, and no process could be enforced against it. Mr. Rolt replied. July 8.-The LORD CHANCELLOR (Lord Cottenham). The question argued in this case was, what was the proper appellation of the corporation of Worcester under the Municipal Corporations Reform Act; and, certainly, there is some ambiguity about it; but, after examining the several sections which affect the question, I do not think there is much doubt as to the proper conclusion to which I ought to come. The first section which applies directly to this matter, is the 6th (his Lordship read it). If that had stood alone, there could not be any doubt or ambiguity; and for whatever corporations were found in the schedules, at any time after the passing of the act, the appellation would be "mayor, aldermen, and burgesses of the borough.' But the act was dealing not only with "boroughs," properly so called, but with other towns properly denominated "cities," and the interpretation clause contains a provision that in the construction of the act, the word "borough" is to be construed to mean any city, borough, port, cinque port, or town corporate, named in either of the schedules A. and B.; and the words "body corporate" are to be construed to mean body corporate named in one of the schedules A. and B.; and the word "burgess" is to be construed to mean citizen in the case of a city. Now the object of these acts being framed with these interpretation clauses, is, by the means and through the agency of the interpretation clause, to avoid the necessity of frequent repetition in describing all the subject-matter to which the act was intended to apply. It uses, therefore, one expression, and then, by the interpretation clause, declares that that expression shall have certain meanings other than the ordinary meaning of the word used; and the way to apply that interpretation clause is, when you find the word used in other enactments, to follow the direction of the interpretation clause, and, according to the subject-matter, to read it as if it contained the other words which, by the interpretation clause, it is meant to include. Therefore, Now, with that direction, and reading the 6th clause, under the provisions in the interpretation clause, I am compelled - I have no option, but I am compelled-to read it in these words, "That after the first election of councillors under this act in any borough, the body, or reputed body corporate, named in the said schedules, in connexion with such borough, shall take and bear the name of the mayor, aldermen, and❞—it stands in the clause-" burgesses;" but I am directed to read "burgesses" citizens; therefore it will be of the " mayor, aldermen, and citizens of such"-borough,-the word "borough," I am ordered to read, not borough, but city. These remarks, therefore, under the 6th clause, aided by the interpretation directed in the interpretation clause, would make the appellation of the corporation "mayor, aldermen, and citizens of the city." Now, the appellation of " mayor, aldermen, and burgesses of the city," which is one appellation that seems to have been adopted, is obviously wrong; because that is taking one part of the interpretation clause and neglecting another part of it. The interpretation clause is equally clear and specific in directing the word "borough" to be read "city," as in directing the word "burgess" to be read "citizen." It is impossible to take one part of the direction and omit the other; and it is equally impossible to omit both. There can be no doubt the proper appellation is, mayor, aldermen, and citizens of the city." 66 But then the clause relating to Oxford and Cambridge puts that beyond all doubt. Other clauses were referred to, but those other clauses, as far as they related to the existing state of a borough and the then corporation, had no great value. But this clause relates to what is hereafter to be the appellation of two towns, one being a city and the other a borough: and, contemplating the future appellation, it contains this provision, "That nothing in this act contained shall be construed to alter or affect the rights or privileges, duties or liabilities, of the chancellor, masters, and scholars of the Universities of Oxford or Cambridge respectively, as by law possessed under the respective charters of the said universities, or otherwise, or to entitle any person to be inrolled a citizen of the city of Oxford, or burgess of the borough of Cambridge, by reason of his occupation of any rooms, chambers, or premises in any of the colleges or halls of the Universities of Oxford or Cambridge, or either of them, or to compel any resident member of either of the said universities to accept any office in or under the body corporate of the mayor and citizens of the city of Oxford, or of the mayor and burgesses of the borough of Cambridge." There, incidentally and for another purpose, the act describes what is to be the future appellation of a corporation and city, and what is to be the future appellation of a corporation and borough,-the one to be called the mayor and citizens of the city, and the other is to be called the mayor and burgesses of the borough. If the clauses I referred to, therefore, required any aid from other clauses of the act, I think the clause relating to Oxford and Cambridge would be quite conclusive. But, on looking attentively at the interpretation clause, I think that without the aid of the clause relating to Oxford and Cambridge, it is sufficiently clear that the appellation is, "the mayor, aldermen, and citizens of the city." The order, therefore, to alter the designation in the answer must be made. It is their own mistake, and, of course, they must pay the costs of the application to the Court below, but not of this application. and in order to obtain the benefit of A.'s evidence respecting it, he assigned all his interest to the plaintiff without consideration. The attesting witness to the deed was not produced, nor was any satisfactory proof of his death given. The Court refused to grant any reference respecting the execution of the alleged deed; but retained the bill for a year, with liberty to proceed at law. The evidence of A. was rejected by the Court below, but admitted de bene esse by the Lord Chancellor. Mode of referring, in a decree, to evidence which has been rejected, or admitted de bene esse. This case was first brought before the Court upon demurrer, which will be found reported in 12 Law J. Rep. (N.s.) Chanc. 221. In 1811 a marriage took place between Thomas Oswald and Sarah Simson. Oswald had been treated by Mr. Thomas Shipman as his adopted son; and, upon the occasion of his marriage, an indenture was stated to have been executed, dated the 20th of August 1811, and made between Shipman, of the one part, and Oswald and his wife, of the other part, whereby Shipman agreed, either in his life-time, or by his will, to give to Oswald and his wife and two trustees, a sum of 3,000l., 5 per cent. navy annuities, upon certain trusts, for the benefit of Mr. and Mrs. Oswald for life, and then upon trust, for the children of the marriage at twenty-one; and in default of any children who should acquire a vested interest in the fund, then in trust for the survivor of Mr. and Mrs. Oswald absolutely. There was one child only of the marriage, who died an infant, and Mrs. Oswald died in July 1813. Mr. Oswald, therefore, became absolutely entitled to the benefit of the agreement. Shipman died in March 1842, without having settled or bequeathed any money or stock, in performance of the agreement contained in the deed of August 1811. In December 1842, Oswald assigned his interest in the trust fund to the plaintiff, for a nominal consideration. The assignment contained a covenant for further assurance, but no covenant for title. The plaintiff instituted the present suit, on behalf of himself and all other creditors of Shipman, for the administration of his estate, the plaintiff |