1843.-Tanner v. Tebbutt. In October, Elizabeth Linney died, having by her will devised the property in question to the plaintiff in fee. The bill was filed against Tebbutt and Pass, and the parties entitled under the will adversely to the plaintiff, praying that it might be declared that the plaintiff in right of Elizabeth Linney was entitled to the fee-simple of the property, and for the delivery up of the title deeds and an account of rents, &c. The cause now coming on for hearing, it was agreed between the parties that it should be decided by the Vice-Chancellor, without sending a case for the opinion of a court of law. The principal question was, whether what had passed between Elizabeth Linney and the executors was a sufficient compliance with the condition required by the will. Mr. Simpkinson, and Mr. Smythe, for the plaintiff.—First, supposing the condition not to have been performed, we submit that it was a condition subsequent, which has been destroyed by the act of God. The estate vests absolutely in Elizabeth Linney by the first words of the will, and cannot be devested by a subsequent condition which is incapable of taking effect: Co. Litt. 206, a., Peyton v. Bury,(a) Thomas v. Howell,(b) [*228] Graydon v. Hicks, (e) Aislabie v. *Rice,(d) Burchett v. Woolward,(e) Cary v. Bertie.(f) Secondly, the condition has been performed, and the case is distinguishable from Hawkes v. Baldwin,(g) Burgess v. Robinson,(h) Tulk v. Houlditch.(i) Mr. Prendergast, for the defendants, the trustees. Mr. Wigram, and Mr. G. L. Russell, for the devisees over.One party is as much an object of the testator's bounty as the other; and the condition should be construed strictly: Roundell v. Currer,(j) Tulk v. Houlditch. The cases in which the nonperformance of conditions subsequent has been held not to affect (a) 2 P. W. 626. (b) 1 Salk. 170. (c) 2 Atk. 16. (g) 9 Sim. 355. (d) 3 Madd. 256. (h) 3 Mer. 7. 1843.-Tanner v. Tebbutt. the devise, are quite inapplicable where there is an express gift over on failure of the performance of the condition. If the event happens on which the estate is to go over, it does go over: Jarm. Wills, vol. 1, p. 809. That is a reasonable and natural construction. In answer to the argument that the condition has been performed, it may be submitted that the word "personally" is reciprocal, and applies as much to the executors as the claimant : and if so, thecondition has not been performed. THE VICE-CHANCELLOR.-I am of opinion that this condition has been performed, and, that being so, it is unnecessary to give an opinion upon the other point in the case. The testatrix appears to have intended to provide for relations, with the fact of whose existence she was not accurately acquainted. In order therefore to prevent false claims from being made upon the excutors, she directs that the persons to whom she has given her estate shall, within seven years next after her decease, personally *appear, that is, as I apprehend it, appear in [*229] their proper persons, before her executors, and deliver to them a testimonial of their identity. Now, if I am right in considering that the word "personally" refers only to those persons who are previously mentioned in the will, which I think is the proper construction, the omission of the repetition of that word in the second branch of the sentence in which it occurs, is not immaterial. Whether the executors could or could not delegate their judgment of the validity of the testimonial it is not necessary to decide. But I apprehend that the act of appearance was an act not necessary to be done before the two executors in their own proper persons: it might, in my opinion, according to the true construction of the will, be done before one of the executors; especially when it is considered how many circumstances might have arisen, if a strictly literal construction of the will were adopted, to disappoint the intention of the testatrix; for instance, suppose the claim had been made by the issue mentioned in the will, and the issue had been infants: could it have been contended that this Court could not dispense with the delivery of a testimonial of identity by the infants? 1843-Tanner v. Tebbutt. It appears to me therefore that enough has been done in this case to satisfy the language of the will. But there is also another consideration. The executors who are to judge of the performance of the condition, in effect, tell the devisee how the act which is to be the performance of the condition shall be done; and she does it accordingly. Under such circumstances is it competent to the executors to object to the manner in which the condition has been performed? Declare that the condition has been performed. [*230] 1843 Feb. 21st. *SAYER V. WAGSTAFF. An allegation of an assignment of an interest in the suit from one co-plaintiff to another, who is not otherwise a proper party, must be proved at the hearing. THIS was a suit to set aside, amongst other deeds, a deed by which an annuity had been granted on the 20th July, 1837, by the plaintiff Francis Hill to the defendant John Wagstaff, and secured collaterally upon the real estates of Hill. The bill stated certain indentures of the 1st and 2nd July, 1838, whereby the plaintiff Hill conveyed and assigned to his co-plaintiff James Sayer his real and personal estate, upon trusts for the benefit of the creditors who should execute the deeds, with an ultimate trust in favor of himself. At the hearing, no evidence was given of the execution of these deeds, nor were they produced. It was objected on the part of the defendants, that there was a misjoinder of plaintiffs, inasmuch as it was not proved that Sayer had any interest. The counsel for the plaintiffs contended that the allegation by one plaintiff of a conveyance to the other was sufficient, and cited Ryan v. Anderson.(a) THE VICE-CHANCELLOR expressed his dissent from that case, (a) 3 Madd. 174. 1813. Sayer v. Wagstaff. which he conceived to be at variance with Cholmondeley v. Clinton.(a) If the mere allegation of the plaintiff's were admitted as sufficient proof of an assignment by one to the other who would not otherwise be properly on the record, the record might be crowded with impoper parties, and continual abatements might be occasioned. His Honor added, however, that he would not dismiss the bill for such a slip, if the evidence could be supplied. Mr. Simpkinson, Mr. Moore, Mr. Russell, Mr. Parry, and Mr. Cameron, appeared for the different parties. 1843 Feb. 18th and 25th. *HEAD V. RANDALL. [*231] A testator gave £150 to A. and B. at their respective ages of twenty-one, or days of marriage, which should first happen, but in case either of them should die without issue before his or her legacy should become payable, then his or her legacy was to be paid to the survivor and his or her issue. The testator then gave the residue of his estate unto his grand-daughters C. and D., equally to be divided between them, and if but one of them should attain twenty-one, then the residue was to go to the survivor; and he declared that the provision thereby made for C. and D should not be subject to the control of their husbands, but should be vested in his executors, in trust, for the benefit of C. and D., and their issue respectively, until they should attain twenty-one, being unmarried, or if married, until a proper and adequate settlement should be made upon them and their issue; but in case they should both die before they attained twenty-one, and without having issue, then he gave the residue over. C. and D. both lived to attain twenty-one :-Held, that although the word issue in the bequest to A. and B. could clearly only mean children, yet it did not follow of necessity, that in the subsequent bequest to C. and D. it must have the same limited construction put upon it; but that it included all the issue of C. and D. living at their respective deaths generally, and that such issue took per capita as tenants in common.[1] ROGER ROBERTS by his will, dated the 24th July, 1789, gave the sum of £150 each unto his two grandchildren Charles Bur (a) 4 Bligh, 123. [1] See Carter v. Bloodgood's Ex. 3 Sand. Ch. R. 299; Pond v. Bergh, 10 Paige Ch. R. 140, 152. 1843.-Head v. Randall. rows and Ann Burrows, at their respective ages of twenty-one years or days of marriage, which should first happen, with interest for the same at the rate of £4 per cent. per annum from the death of his wife until the day of payment thereof, respectively; but in case either of his said two grandchildren should depart this life without issue before his or her legacy should become due and payable according to that his will, then his will and mind was that the legacy and interest of him or her so dying should go and be paid to the survivor of his said two grandchildren and his or her issue lawfully to be begotten. And all the rest and residue of his estate and effects, and the dividends, interest, and produce thereof he gave and bequeathed unto his two grand-daughters Elizabeth Davis and Ann Davis when and as they should respectively attain their ages of twenty-one years, equally to be divided between them; and if but one of his said two grand-daughters Elizabeth and Ann Davis should attain the age of twenty-one years, then the whole residue of his estate and effects should go and be paid to the survivor of his said two grand-daughters; and in the mean time and until his said two grand-daughters should attain their respective ages of twentyone years he directed his two executors thereinafter named, and the survivor of them, his executors and administrators, by and out of the interest and dividends of the residue of his [*232] said *personal estate, to pay and apply the sum of £20 a year for and towards each of their maintenance and education, but no further or greater yearly sum until they should respectively attain the age of twenty-one years. And his will and mind further was, that the provision thereby made by him for his said two grand-daughters Elizabeth and Ann Davis should not be subject to the control, debts or engagements of any husband with whom they might respectively intermarry, but should remain and continue vested in his said two executors, and the survivor of them, his executors and administrators, in trust for the benefit of his said two grand-daughters and their issue respectively until his said two grand-daughters should respectively attain the age of twenty-one years, being unmarried, or if married, until a proper and adequate settlement should be made upon them and their issue, but so that his said two grand-daugh |