1838.-Grafftey v. Humpage. transfer the same, unto, between and amongst the next of kin of Mrs. Vowell, according to the statute enacted for the distribution of intestate estates, in case she had died a feme sole, unmarried. And the settlement contained a covenant by *Mr. Humpage, "That in case the said Eliza- [*49] beth Vowell, his intended wife, or he the said Thomas Humpage, in her right, should at any time or times thereafter during the said coverture, succeed to the possession of, or acquire any property, estate, or effects, whether real or personal, and whether by devise, bequest, descent, or otherwise howsoever, then, that he the said Thomas Humpage, his heirs, executors, administrators, or assigns, would at his, their, or some or one of their own proper costs and charges, and when thereunto required by the said Joseph Meson, John Clayton and Samuel Mills, their heirs, executors, administrators, or assigns, or any or either of them, make, do and execute, or join and concur with the said Elizabeth Vowell, his intended wife, and all other necessary parties, in making, doing and executing all such acts, deeds and things, devices, conveyances, assignments and assurances in the law as should be necessary, and as counsel should advise and require, for the conveying, settling and assuring all such estate, property and effects, as the said Elizabeth Vowell, or the said Thomas Humpage in her right, should or might so succeed to, or acquire as aforesaid, to the uses and upon the trusts following, that is to say, to the use, intent and purpose, that the rents and profits, interest, dividends and annual produce thereof respectively, might be secured to be paid to the said Elizabeth Vowell, for and during the joint lives of her and the said Thomas Humpage, her intended husband, upon her own separate receipt, to and for her sole and separate use, exclusive and 'independent of him, and without being subject to his debts, control, or engagements; and from and after the decease of the said Elizabeth Vowell, then upon such and the like trusts for the benefit of the children of them the said Thomas Humpage and Elizabeth Vowell, his intended wife, as were therein before declared of and concerning the said trust moneys and *the securities [*50] for the same, or as near thereto as the nature of the respective properties, the death of parties, and other circumstances, and the rules of law and equity would admit; and failing such issue, then in trust, for such person or persons and for such intents and purposes as the said Elizabeth Vowell should at any time thereafter, whether covert or sole, and notwithstanding her said intended coverture, by her last will and testament in writing, or any writing in the nature of, or purporting to be her last will and testament, or any codicil or codicils thereto, to be by her duly signed and published, direct or appoint; and in default of such direction or appointment, then as to real property, in trust, for the heir at law of the said Elizabeth Vowell, and as to personal property, in trust, for her next of kin, by force of the statute for distribution of intestates' estates, in case she had died a feme sole, and unmarried." Anna Hall, the mother of Mrs. Humpage, having died in the year 1817, 1838.-Grafftey v. Humpage. Mrs. Humpage thereupon became entitled, in possession, to the other moiety of the interest of the 4000 bequeathed by her father's will to her for her life, to her separate use. In September, 1832, Mrs. Humpage died, leaving her husband surviving her, without having had any issue, and without having made any appointment, either of the stock and money specifically comprised in the settlement, or of the moiety of 40007., which she had power to appoint under her father's will. Thomas Humpage died in 1834, without having taken out letters of administration to the personal estate of his wife, Elizabeth Humpage, or doing any act to possess himself of her moiety of the 57977. consols, on which the 40007. had been invested. Letters of administration of the goods of Mrs. Humpage, limited to the purposes of this suit, were, after her husband's death, granted to one of the plaintiffs. [*51] *This bill was filed by the next of kin of Mrs. Humpage, against the trustees of the fund and the personal representatives of Mr. Humpage, claiming the moiety of the fund. Mr. Pemberton and Mr. Collins, for the plaintiffs. Mr. Tinney, and Mr. George Turner, for the personal representatives of Mr. Humpage. Mr. Kindersley and Mr. Bailey, for the trustees. The following authorities were cited and relied on :-Richards v. Chambers, (a) Lee v. Muggeridge,(b) Stiffe v. Everett, (c) Woodcock v. The Duke of Dorset, (d) Gage v. Acton,(e) Douglas v. Congreve,'g) Tayleur v. Dickenson,(h) Prebble v. Boghurst,(i) Bulmer v. Jay,(k) Palin v. Hills,(1) Sabberton v. Skeeles,(m) Collier v. Squire,(n) Anderson v. Dawson,(o) Purdew v. Jackson,(p) Massey v. Parker.(q) November 8.-THE MASTER OF THE ROLLS.-The question in this case is, whether the sum of 20007., being one moiety of a sum of 40007. bequeathed by the will of Abraham Hall, belongs to the next of kin of Elizabeth Humpage, deceased, or to the legal personal representatives of her husband, Thomas Humpage, deceased, who survived her. [*52] [His Lordship stated the circumstances of the case, and proceeded]— *The question is, whether, in the events which happened, this moiety of the 40001. either according to the true intent of the will, or by the operation and effect of the settlement, belonged to the next of kin of Mrs. Humpage. From the care which the testator took to limit the 4000l., to the separate use of his daughter, independent of any husband, it is probable that his principal intent was to exclude the husband; and cases have occurred, in which, (a) 10 Ves. 580. (b) 1 V. & B 118. (c) 1 My. & C. 37. (d) 3 Bro. C. C. 568. 1838.-Grafftey v. Humpage. to support the plain intent, the words "personal representatives," or "execu tors and administrators," have been construed to mean next of kin; but the words "executors, administrators and assigns" do not appear to me to admit of this interpretation; and I think that, subject to the prior limitations and the power of disposition, the words of this will gave an absolute interest to Mrs. Humpage; and if there had been no settlement, would, in the events which have happened, have enabled her husband, as her administrator, to take the fund.[1] Upon the settlement, I think that there is considerable difficulty in any view of the case. The 40007. given by the father's will, is not mentioned in the settlement at all. It was already vested in the trustees of the father's will, and limited for the benefit of children, though not in the same way as was contemplated. in respect of the property specifically comprised in the settlement; and Mrs. Humpage, in default of children, had an absolute power of appointing a moiety, the other moiety being given over. These circumstances may, perhaps, account for the omission from the settlement, and the parties may have regarded the power of disposition, which was only to have place in default of children, and the ultimate limitation, which was only to [53] take effect in default of children and of appointment, as something which was to arise, or be acquired in future, and as such, to be subject to the husband's covenant. But, however this may be, the settlement is silent as to the 40007., and although the settlement, in words, refers to the present, and also to the future fortune of Mrs. Humpage, it is argued for the defendants, that by the present fortune of Mrs. Humpage, the parties only meant the 50667. 13s. 4d. 3 per cent. annuities and the 45001. sterling, specifically comprised in the settlement; and that by the future fortune, was meant only, such new acquisitions as might be made during the coverture, without reference to and not comprising any property, other than that specifically comprised in the settlement, to which Mrs. Humpage might then be entitled. It it is further argued, that although the right, which ultimately became available to the husband, was acquired by the coverture, yet, that nothing succeeded to the wife, or to the husband in her right, during the coverture; and that nothing was acquired by the husband, till, by the death of the wife, the coverture was determined; and then it is insisted that, the recital having reference only to such future fortune as Mrs. Humpage should acquire or succeed to, and the covenant fixing the period of coverture, as the time during which the wife, or the husband in her right, should succeed to the possession of, or acquire any property, estate, or effects, this particular property is effectually excluded. I cannot, however, acquiesce in this argument; there, are, indeed, difficul [1]" Legal or personal representatives may mean next of kin, but executors or administrators cannot." Lord Lyndhurst, Daniel v. Dudley, 1 Phillips 6. 1838.-Gouthwaite v. Rippon. ties in any construction of the settlement,[1] but having regard to the terms in which the settlement is expressed, I think that the intention was, to settle all the property on Mrs. Hunpage, which was considered to be disposable; that Mr. Humpage was intended to have no beneficial interest in any [54] part of her property during her life, and that after her death, *he should not have more than a life interest in the 50667. 13s. 4d. 3 per cent. annuities and 45007. sterling. It is admitted, that any thing which he acquired in her right, during the coverture, was bound by the covenant; now it was by the coverture only, that he acquired the marital character, which afterwards entitled him to administer and possess the estate of his deceased wife: the right, which upon the death of the wife became complete, had its inception by the marriage, and existed during the coverture, and, it appears to me that, upon the true meaning and intention of the parties, and the equity of the settlement, Mr. Humpage might have been compelled, to subject the right so vested in him to the provisions of the settlement, though during the coverture, it was but inchoate, and might have been wholly defeated, by his death in the wife's lifetime: on the whole, therefore, it appears to me, that the 20007. in question belongs to the next of kin of Mrs. Humpage.(a) 1838 December 24 GOUTHWAITE v. Rippon. A motion for an injunction and receiver is irregular where the plaintiff amends his bill between the time of giving notice of moving and the time of bringing on the motion. An order to amend was obtained, but no amendment was made before the 13th December. On the 13th, a notice of motion was given for an iujunction and receiver, for the 17th of December. The bill was amended on the same day, but after the notice of motion had been served. On the 17th of December, a subpoena to answer the amended bill was served; and, in this state of things, [*55] *Mr. Pemberton and Mr. Hare moved for an injunction and re ceiver. Mr. James Russell objected, that the motion was irregular, the notice having been given on a record which no longer existed; and that, on the existing record, no notice of motion had been given. THE MASTER OF THE ROLLS allowed the objection, and refused the motion. (a) Affirmed, 31st May, 1839. [1] Such difficulties are of constant occurrence. James v. Durant, 2 Beav. 179. A trust for the payment of debts, in a will of personal estate, will not prevent the operation of the statute of limitations. THOMAS HARTLEY, by his will, bearing date the 25th day of September, 1806, after giving to his wife, Jane Hartley, the sum of 2001., and to Thomas Wilson and John Tweedy, the sum of 50l. a piece, gave and bequeathed all his money and securities for money, stock in the public funds and all the residue of his personal estate not therein before specifically disposed of, to the said Jane Hartley, Thomas Wilson and John Tweedy, and their executors, administrators and assigns, upon trust, to convert into money so much and such part thereof, as should be necessary for the purpose of that his will; and thereout, in the first place, to pay and discharge his, the said testator's funeral and testamentary expenses, the debts which he should owe at his decease and the pecuniary legacies thereinbefore bequeathed, or which he might bequeath by any codicil to his will. Thomas Hartley died in the month of March, 1808, and this suit was instituted for the administration of the *estate. The decree was [*56] made on the 16th of May, 1836, and directed the Master to inquire whether any, and, if any, which, and to what amount, of the debts and lega. cies of the testator remained unpaid. Under this decree, the petitioner, Mrs. Bowes, the widow and executrix of General Bowes, made her claim, and the Master, by his report in 1838, after setting forth several facts, which he considered to be established, found that a debt of 7007., with interest, at 5 per cent., from the 3d day of April, 1803, remained unpaid, and was payable to the petitioner, Mrs. Bowes. To this report the plaintiffs excepted, and, by their exceptions, brought into question, not only the conclusion at which the Master had arrived, but also many of the facts which the Master had considered to be established. The case now came on upon the plaintiff's exceptions, and upon a petition of Mrs. Bowes to confirm the report. The case alleged by Mrs. Bowes was, that in the beginning of the year 1803, a certain estate, consisting partly of frechold and partly of copyhold land, and belonging to the late General Bowes, was vested in trustees, on trust, to sell the same for his benefit; that they agreed to sell it to the testator Thomas Hartley, for the sum of 7007.; that Hartley made the purchase, for the benefit of his son, Thomas Hartley the younger; and a conveyance to him, of the freehold, was prepared and signed by the trustees and by General Bowes; that possession of the land was 'given to Thomas Hartley himself, but that, in this state of things, the transaction, from some unexplained cause, was interrupted: the purchase money was never paid, and the deed of conveyance remained undelivered in the hands of the *vendors, [*57] or their solicitor. No claim was made till the year 1836, nearly thirty |