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A testator bequeathed the residue amongst his five grand-children, A., B., C., D. and E., his grandson A.'s two children, F. and G., and his niece's two children, H. and K.; and declared that "in case any of the said last mentioned children should die before their attaining their respective ages of twenty-one and should leave no lawful issue, then the survivors were to have his or her share." F., died under twenty-one, and left no issue: Held, that his share became divisible between the eight surviving legatees, children and grand-children.

THE testator by his will expressed himself as follows:

As to all the rest, residue and remainder of my property, and which I shall be entitled to at the death of my wife, I give, devise and bequeath the same to be divided equally, share and share alike as tenants in common and not as joint tenants, amongst my five grand-children, William Moore, Thomas Moore, Clement Moore, Henry Moore and Joseph Moore, my grand-son William Moore's two children, Elizabeth Moore and William Moore, and my niece Rachael Walker's two children, Robert Moore Walker and Esther Walker; and in case any of the said last mentioned children shall die before their attaining their respective ages of twenty-one years and leave no lawful issue, then the survivors to have the share or shares of him, her or them so dying, equally divided amongst them, share and share alike.

William Moore, the son of the testator's grand-son William Moore, died under twenty-one without issue, and the question was, whether his one-ninth became divisible, and amongst what "survivors."

It was submitted, first, that the share was not divisible; and secondly, that the five grand-children first mentioned did not participate in his

share.

*Mr. Walker, Mr. Koe and Mr. J. F. Hall, for different parties. [*608] THE MASTER OF THE ROLLS was of opinion that the eight survivors, children and grand-children, participated in the one-ninth share of William.

Reg. Lib. 1839, 966.

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A., being entitled to an undivided moiety of a
piece of ground, agreed with B. that in case
either of them should at any time purchase
the other moiety, the whole should be divided
in a particular manner between them; the
moiety was sold to a third party, whereupon
A. and B. further agreed that neither of them
would purchase that moiety until they had
agreed upon a sum to be given for it, subject
to the stipulations and conditions of the for-
mer agreement.
A. afterwards refused to
agree upon the price to be given, and B.
having purchased the moiety of the property,
A. refused to carry the agreement into effect:
Held, that A. was not justified in refusing to
fix a price; and a suit having been instituted
against him by B. for a partition of the pro-
perty, Held also, that A. had abandoned the
contract, and could not set it up as a bar to
the partition. Morris v. Timmins,

411

ALIEN.

A devise of lands was made to English subjects,
in trust to sell, and, after payment of mort-
gages, to invest the surplus moneys in the
funds, in trust for persons, some of whom
were aliens; Held, that the crown was not
entitled to the share of the aliens either in the
land or the produce. Du Hourmelin v. Shel-
don,

AMENDMENT.

79

See INJUNCTION, 4, 5. MISJOINDER OF PLAIN-
TIFFS, 1. PRACTICE, 1.

-ANNUITY

1. The dividends of a sum in court being insuf-
ficient for the payment of an annuity charged
upon it, a prospective order was made for the
sale, from time to time, of so much of the
corpus as would, together with the dividends,
be necessary for raising the amount of the
annuity. Hodge v. Lewin,

2.

431

A sum of money in the five per cents, set
apart to answer an annuity, was reduced to
3 per cents., and the dividends having be-
come insufficient to pay the annuity, the
court made a prospective order for the sale,
from time to time, of a sufficient part of the
capital to meet the accruing payments of the
annuity. Swallow v. Swallow,
432 n.

ANTICIPATION, RESTRAINT ON.
See SEPARATE USE, 1, 3, 4.

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and ought to be corrected. In re The Rugby School,

457 See FREE SCHOOL. GRAMMAR SCHOOL. TRUS

TEE, 3.

CHOSE IN ACTION. See SEQUESTRATION, 1.

CO-DEFENDANTS.

1. Accounts between co-defendants are directed in those instances only in which a case is made out between them on the pleadings, and is supported by evidence.

2.

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A decree was made against A. B., setting aside, as fraudulent, a purchase by an agent from his principal; and a re-conveyance, and the usual accounts of rents and purchase money were directed, in which an allowance was to be made for substantial repairs and lasting improvements. A. B. sold and conveyed part of the property, pendente lite, and died before the accounts were completed; a supplemental bill was filed against the purchasers and the heir and personal representatives of A. B.; the bill charged that the purchasers, in case of eviction, claimed compensation out of the estate of A. B.; the conveyances, pendente lite, being set aside, Held, that the purchasers were entitled in this suit, as against their co-defendants, the personal representatives of A. B., to an order for the repayment of their purchase money, and were entitled, as against the plaintiff, to an allowance for substantial repairs and lasting improvements, but that no greater relief could be given them in this suit.

Held also, that the heir and personal representatives were proper parties to the supplemental bill. Trevelyan v. White,

See INJUNCTION, 1.

COMPENSATION.

See TRUSTEE, 7.

COMPROMISE.

See INFANT.

588

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1. A plaintiff who enters into evidence to prove
facts clearly admitted by the answer, must
pay the costs, though he succeed in the suit.
Booth v. Booth,
130

2. On an application being made to the court
below to stay the execution of an order pend-
ing an appeal, the party applying pays the
costs; but where before the motion to stay
proceedings has been decided the court above
reversed the order below, Held that the costs
of the motion ought to be costs in the cause.
Richardson v. The Bank of England, 153
See EXECUTOR, 3, 5. NEXT FRIEND, 1, 2. OUT-
STANDING TERM. PARTITION, 1. PROVISIONAL
ASSIGNEE. SOLICITOR AND CLIENT, 1, 5.
TAXATION, 1. TRUSTEE, 3, 8. VENDOR AND
PURCHASER, 2.

COVENANT TO SETTLE.

COVENANT, BREACH OF.
See LESSOR AND LESSEE.

CROSS BILL.

A. B, resident abroad, filed a bill against C. D.,
whereupon C. D. filed a cross bill; and C. D,
before answering the original bill, moved to
stay all proceedings in the original suit until
A. B. had answered the cross bill; Held, not-
withstanding what is said in Ramkissenseat
v. Barker, 1 Atk 20, that this was irregular.
Wigley v. Whitaker,
349

CROWN.

See ALIEN. PREROGATIVE.

CUMULATIVE LEGACY.

Several annuities given by a will and codicils
held to be cumulative. Spire v. Smith, 419

D

DEBTOR AND CREDITOR.
See CONDITION. WILL, 2, 6.

OF.

DEED.

See COVENANT TO SETTLE. POWER, EXECUTION
RELEASE.
DEMURRER.

One of two tenants in common brought an ac-
tion of ejectment against A. B. to recover
possession of some property, but discovering
(as the bill alleged) that there was an out-
standing term, which the defendant intended
to set up, he filed a bill, praying a declaration
of his right to a moiety of the estate, and for
the delivery of the estate and title deeds, and
for an account of the rents; Held, on demur-
rer, that, from the frame of the record, the
other tenant in common was a necessary par-
ty; but that the trustee of the outstanding
term was not. Brookes v. Burt,
106
See PATENT, 1.
STATUTE OF

PLEADING, 3.
FRAUDS.

DEVISE.

1. A devise of real and personal estate to a
feme covert, for life, for her independent use
and benefit, with remainder to her husband,
for life," with remainder to the heirs of her
body in tail," with remainders over; accom-
panied with a declaration, "that all the
aforesaid limitations were intended by the tes-
tator to be in strict settlement." Held, that,
subject to the husband's life estate, the wife
took an estate tail in the real estate, and an
absolute interest in the personalty. Douglass
v. Congreve,

A feme being entitled to a reversionary interest
in property for her separate use, both she and
her intended husband separately covenanted
to settle any property, which she or her hus-2.
band in her right, might become entitled to,
upon certain trusts, the above interest having
fallen into possession, Held, that it was sub-
ject to the trusts of the settlement. Tawney
v. Ward,
See SETTLEMENT.

563

59

Devise to testator's widow, for life, with re-
mainder to trustees and their executors, to
pay costs, &c., and, to divide the residue
of the rents amongst all the testator's
brothers and sisters" who should be living at
the time of the decease of his (testator's)

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