1840.-Lucas v. Carline. interest vested in the legatees until such time as the same should respectively be payable." The testatrix also gave other legacies respectively payable within twelve months after her death, and payable at the end of twelve months after her decease. William Lucas was residing with the testatrix at her death, but died before the expiration of six months from the decease of the testatrix, and the question was, whether this legacy was payable to his representatives. *The defendant denied that he got in within six months after the [*368] death of the testatrix personal estate sufficient to pay the legacies payable within six months. Mr. Pemberton and Mr. Glasse in support of the claim for the legacy :The legacy vested at the death of the testatrix, and was payable, not at the expiration but within six calendar months after; the direction to pay within six months was merely for convenience in the administration of her estate, and did not postpone the vesting of the legacy; Garthshore v. Chalie.(a) Some legacies are payable within twelve months, and others at the end of twelve months: this shows that the testatrix knew the difference. The rule of the court being to give interest at the end of twelve months only, the testatrix might here have intended that the legatee should have interest from the end of six months. The legatee at least is entitled to an inquiry, whether with reasonable diligence the legacy might have been paid before the legatee's death Law v. Thompson.(b) Mr. Piggott for the executor and residuary legatee, cited Sidney v. Vaughan,(c) Lloyd v. Williams.(d) THE MASTER OF THE ROLLS:-The question in this case is whether upon the true construction of this will I am to consider the legacy now in question as a legacy which might become payable upon the death of the testatrix, or whether I am to consider it as a legacy which did not become payable till the expiration of the term of six months, within which [*369] she positively said it was to be paid. I think that the best construction I can give is, that it was payable before the end of the six months in which they were authorized to pay it. If the residuary legatees and the executors had been different persons, it would have been impossible for the former to have complained if this legacy had been paid within one month after her decease, nor can they complain if they fill the two characters. The legacy is payable within and not after six months, and I see no reason for attaching an additional condition that the legatee should live beyond the six months. I am of opinion that the legacy was payable in the lifetime of this legatee, and that the plaintiff who represents him is now entitled to have the legacy paid if there are assets for that pupose.[1] (b) 4 Russell, 92. (c) 2 B. P. C. 347. (a) 10 Ves. 13. Whether by the 12th General Order (1828) the Master can extend the time for making his report more than once, quære. Where, in a proceeding before the Master, the defendant, by acquiescence or omission to object, permits the other party and the Master to proceed as if he did acquiesce, he comes too late if he does not come at the first opportunity to complain of the irregularity. On a reference to the Master of exceptions for impertinence, he enlarged the time for making his report three times, and on the 19th of February, reported the answer insufficient; on the 4th of March, the defendant gave notice of motion to take the certificates off the file, on the ground of irregularity, and of the Master's having power to enlarge the time only once: the court held that even assuming the Master's power to have been so limited, the defendant came too late, he not having previously taken the objection. THE question in this case turned principally on the effect of the twelfth General Order, 1828, (a) which directs, that when any order is made [370] referring an answer for insufficiency, the order shall be considered as abandoned unless the Master's report shall be procured within a fortnight from the date of such order, "or unless the Master shall, within the fortnight, certify that a further time to be stated in his certificate is necessary in order to enable him to make a satisfactory report; in which case the order shall be considered as abandoned if the report be not obtained within the further time stated," and the answer is then to be deemed sufficient. In this case the common injunction had been obtained for want of answer. Exceptions to the answer for insufficiency were delivered on the 21st of De cember, 1839, and were afterwards shown as cause against dissolving the injunction, and the exceptions were on the 23d referred to the Master. By the terms of the reference, the plaintiff was to procure the Master's report on or before the 3d day of Hilary term, (13th January,) (b) or in default thereof the injunction was to stand dissolved without further order. On the 8th of January, notice of motion was given to produce documents admitted by the answer to be in the defendant's possession; and an order to that effect was made on the 11th of January, 1840. On the 13th of January, the Master being attended on the exceptions, certified that one week's further time was necessary in order to enable him to make a satisfactory report. [*371] *On the 20th of January, the Master certified that ten days further time was necessary for that purpose; and on the 29th of the same month he made a third certificate, certifying that six weeks further time was necessary. On the 19th of February he reported the answer to be insufficient. (a) 2 Russ. App. 7. (b) This was a special order made on the 23d of December, when an application was made to make the order nisi for dissolving the injunction absolute; it was made in consequence of the whole fortnight allowed being in vacation time; see 19th order (1828.) 1840.-Davis v. Franklin. - On the 4th of March, notice of motion was given on behalf of the defendant to take these four certificates off the file for irregularity, which now came on for argument. Mr. Pemberton and Mr. O. Anderdon, in support of the motion, contended that this being a special, and not a general order of reference to the Master, he had no authority to extend the time at all; but treating it as a general order of reference, then, after one certificate of further time being necessary, the Master, under the twelfth order, had no further power of extending the time for making his report. That it had been so decided by the Vice-Chancellor in Watkins v. Redman.(a) Secondly, that the motion for production of documents on admissions in the answer affirmed its sufficiency, and was a waiver of the exceptions. That the order of reference must consequently be considered abandoned, and the answer must at least be deemed sufficient from the 20th of January. Mr. Kindersley and Mr. James Russell, contra, contended that the Master, if he considered it necessary, had the power from time to time to extend the period for making his report, otherwise great inconvenience *would [372] result; and the Master, in the first instance, would be either compelled to name an unnecessarily long period for making his report, or the parties would be prejudiced by the inability of the Master to make it in time. Secondly, that the motion to produce the documents was no waiver, and could only be taken advantage of on a motion to discharge the order of reference on that ground. And thirdly, that if there had been any irregularity in the Master's proceedings, it had been waived and concurred in by the defendant, who had allowed the Master to proceed without making any complaint until the notice of motion on the 4th of March; that, by the practice of all the courts, an irregularity, must be complained of at the earliest stage, otherwise it will be considered waived: Routledge v. Giles.(b) Mr. Pemberton, in reply:-No acquiescence could give the Master jurisdiction where the general orders of the court preclude it. You may waive your rights, but cannot, by any proceeding, give jurisdiction. Candler v. Partington, c) was also cited. THE MASTER OF THE ROLLS:--This motion has nothing to do with the injunction, and the effect of the order to produce documents cannot now be considered it might have been a ground for an application to stay the proceedings under the reference of the exceptions, but it was no ground for the Master refusing to proceed on that reference. "The words of the twelfth order are very stringent; but I fully [*373] concur in all that is said respecting the inconvenience of holding that the Master can only enlarge the time once: the result would be that the (a) 2 Daniel's Pr. 316. (c) 6 Mad. 102. (b) 2 Cr. & Jer. 163. Jervis, New Rules, 68. 1840.-Davis v. Franklin. Master would, in the first instance, be obliged to enlarge the time for months when a few days only might turn out to be necessary. It is said that the Vice-Chancellor has considered that the time once limited cannot be enlarged: I cannot say that this is so clear as not to be worthy of further consideration. If it should, on inquiry, turn out to be so, then comes the question of acquiescence. If this motion prevails, the result will be that the answer will be deemed sufficient, when by the Master's judgment it appears to be insufficient; it is not, therefore, a case where the parties can be put right; it would be extremely hard that the plaintiff should be put in such a permanent situation of disadvantage because the Master has proceeded in error. March 17.-THE MASTER OF THE ROLLS:-This was a motion to take off the file four certificates of the Master, three of them being certificates by which he certified that further time was required to enable him to report as to the sufficiency of the defendant's answer, and the fourth being a report that the answer was insufficient. The reference was made on the 23d of December last, and the plaintiff was to procure the Master's report, on or before the third day of Hilary term, or in default thereof the injunction which the plaintiff had previously obtained was to stand absolutely dissolved without further order. [*374] *The plaintiff obtained an order for the inspection of the documents, which the defendant by his answer, which was excepted to, admitted to be in his possession. He did not procure the report in time to save the injunction, but the Master proceeded on the reference; and within the fortnight allowed by the twelfth general order of 1828, the Master certified further time to be necessary, and granted successively two other like certificates before he reported. the auswer to be insufficient. It is objected by the defendant, first, that the form of the order (of 23d of December,) required that the plaintiff should procure the Master's report on or before the 3d day of Hilary term, and not having done so, the order ought to be deemed to be abandoned; secondly, that the order of the 11th of January, 1840, for inspection of papers in the possession of defendants was made. without any saving of the right to proceed upon the exceptions, and ought to be deemed a waiver of the reference; thirdly, that under the twelfth general order of 1823, the Master has only authority to enlarge the time for making his report once; and that after the time first given had expired the reference must be deemed to be abandoned and the answer to be sufficient. The two first objections were disposed of at the time when the motion was made; the third stood over for consideration, and to give me an opportunity of reading the affidavit, and ascertaining whether the objection, if valid, ought to be considered as waived. I find that since the Vice-Chancellor's order in Watkins v. Red[375] man, it has been considered, at least by some of the Masters, that 1840.-Davis v. Franklin. they have power to extend the time only once. I confess that if the subject had been res integra, I should, notwithstanding the strong words. of the twelfth order, have been inclined to think that the Master might have extended the time contained in the first certificate, whenever the justice of the ca e required it. Great inconvenience may arise from imposing on the Master a necessity of granting a time which may be unnecessarily long in order to avoid the injustice which may be occasioned by the time contained in the first certificate being too short. The subject I think deserves consideration; it does not, however, appear to me to be necessary to decide the point in this case; for even on the supposition that the second and subsequent certificates were objectionable, if the objection had been taken in due time, it appears to me that under the circumstances which took place, the certificates ought not to be taken off the file. The objections which the plaintiff insisted upon before the Master were, first, that the third day of Hilary term had gone by, and that the Master had no authority to proceed afterwards; and secondly, that a motion and an order thereon had been made for the production and inspection of papers. I am of opinion that the Master was right in not yielding to those objections. The objection, that the Master if authorized to extend the time once had no authority to extend it again, does not appear to have been made or suggested. If the plaintiff was aware of the objection, I think that he ought to have stated it, and if necessary to have applied at the first opportunity to take the second certificate off the file; and even if he was not aware of it, I think that it would not be just to permit him to take advantage of a common error, in which he himself participated, to deprive the other party of his right to the result of that investigation before the *Master, which was [*376] carried on without objection from him, on this ground. The limitation of time in the twelfth order was meant for the benefit of defendants and with their consent, and if not by the Master, may, by the authority of the court without their consent, be enlarged so long as justice may require it; and if the defendant by acquiescence or omission to object permits the other party and the Master to proceed as if he did acquiesce, I think that he comes too late, if he does not come at the first opportunity, to complain of the irregularity. In this case he permitted the proceedings to go on for a month and a report to be made against him before he complained, and on the whole I am of opinion that this motion must be refused, and I think it ought to be refused with costs.[1] [1] Vide Becke v. Whitworth, 3 Beav. 350. |