1843.-Cooper v. Hewson.

further time may reasonably be required; if so, it is an exemption from the general law, for the convenience and benefit of the solicitor, and the client ought not, under such circumstances, to suffer; especially where the papers required for conducting a cause are not the whole of the papers in the solicitor's possession, and where every delivered bill has been paid, and there is a balance in the solicitor's hands towards payment of the undelivered bill.

ORDER made in terms of the notice of motion, omitting the words in inverted comCosts reserved. Time for delivery of the bill enlarged by consent.

mas.

*GREENE V. POTTER.

[*517]

1843: July 26th.

Testator devised his estate at E. to trustees, upon trust to apply the rents for the maintenance and support of B. till she should attain the age of twenty-five years, or marry with consent, and to lay out the surplus of such rents in Government securities, that the same might accummulate for the uses and purposes of his will; and from and after the said B. should attain twenty-five, or marry with consent, then to pay her the whole of the rents for her life; and after her decease, upon trust for her children. The testator then gave his estate at I. to the same trustees, upon trust, in case the said B. should live to attain twenty-five, or marry with such consent as aforesaid, to permit her to occupy and enjoy and receive the rents of that estate for her life; and after her decease, upon trust for her children, in the manner before mentioned Provided, that, in case B. should marry without consent, the testator revoked all the devises and bequests in favor of her and her issue. All the residue of his real and personal estate, and likewise his estate and premises thereinbefore devised for the benefit of B., in case she should die under twenty-five, unmarried, and without issue, the testator devised and bequeathed to the trustees in trust for X., Y., and Z. B. attained twenty-five, and married with consent. Between the death of the testator and her attaining twenty-five there was an accumulation of the surplus rents of the E. estate, after providing for her maintenance, and an accumulation of the rents of the I. estate :-Held, that she was entitled for her life to the income of the former accumulation, and absolutely entitled to the latter accumulation.

H. POTTER, by his will, devised as follows: I give and devise unto my friends John Bourne and William Hill all those my dwelling-houses or tenements, and all my closes, lands, and here

1843.-Greene v. Potter.

ditaments, situate at Long Eaton, in the county of Derby, now in the occupation of Luke Shepherd, &c., to hold my said messuages, &c., and every of them, with their and every of their ap purtenants, unto and to the use of the said John Bourne and William Hill, their heirs and assigns, in trust that they, or the survivor of them, or his heirs, do and shall receive and take the rents, issues, and profits of the said premises, and pay, apply and appropriate the same, or such part thereof as they in their discretion shall think proper and necessary, for the support, maintenance, and bringing up of my natural child Betty Phillips, until she shall attain the age of twenty-five years, or marriage with such consent as hereinafter is mentioned, and to lay out and invest any surplus of such rents, issues, and profits upon government or real security, at interest, in order that the same may accumulate for the uses and purposes of this my will; and from and after the said Betty Phillips shall attain the said age of twenty-five years, or be married with such consent as aforesaid then upon trust to pay to or permit the said Betty Phillips to receive and take the whole of the rents, issues, and profits of the

said trust estate and premises for the term of her natural [*518] life, for her own sole and separate use, *benefit, and ad

vantage, and not to be subject or liable to the debts, control, or engagements of any husband she may marry with such consent as before alluded to; and from and after the decease of the said Betty Philips, then upon trust for all or every and such one or more of the lawful issue, child or children of the said Betty Philips, in such parts, shares, and proportions, manner and form as the said Betty Philips, notwithstanding her coverture, shall by any deed or instrument in writing, duly executed and attested, or by her last will and testament in writing, or by any codicil thereto executed and attested according to law, give and devise or direct, limit and appoint the same, or any part thereof, and in default of such gift or devise, direction, limitation, or appointment as to the whole or any part of such premises, in trust for all and every the issue, child and children of the body of the said Betty Phillips, lawfully to be begotten, equally, share and share alike, &c. Also I give and devise unto my said trustees my house and premises at Ilkeson, in the occupation of my bro

1842.-Greene v. Potter.

ther Thomas Potter, together with the two cottages occupied by T. Sudbury and G. Dean, to hold the same unto and to the use of my said trustees, their heirs and assigns, upon trust, in case the said B. Phillips should live to attain the age of twenty-five years, or marry with such consent as hereby required, to permit the said B. Phillips to occupy and enjoy the said last-mentioned premises, or receive the rents and profits thereof for her natural life, for her separate use and benefit as aforesaid, and after her decease, then upon trust for her issue and children, (if any,) in the manner and subject as before-mentioned with respect to the other property so given to my said trustees. Provided always, and my mind and will is, that in case the said Betty Phillips shall marry without the consent and approbation of my trustees for the time being, then I revoke and make void all and every the devises and bequests contained in this my will to or in favor of "the said Betty Phillips and her issue. And [*519] as to, for, and concerning all the rest, residue, and remainder of my messuages, lands, tenements, hereditaments and real estate, as well freehold as copyhold, and also my term and interest in the collieries now carried on by me in partnership with my said brother Samuel and Messrs. John and G. Bourne, together with my household goods and furniture, farming stock, ready money, and securities for money, and all other my personal estate, property, and effects, whatsoever and wheresoever; and likewise my estate and premises herein before devised to my said trustees for the benefit of the said Betty Phillips, in case she shall happen to die under the age of twenty-five years, unmarried, and without issue as aforesaid, I give, devise, and bequeath them and every of them, with their and every of their rights, members, and appurtenants, unto and to the use of the said J. Bourne and W. Hill, their heirs, executors, administrators, and assigns, according to the nature and tenor of such estates respectively, upon trust, that they, my said trustees, or the survivors of them or his heirs, do and shall, as soon as conveniently may be after my decease, sell and dispose of such parts of my said last-mentioned estates as may be of a saleable nature; and as to the money arising therefrom, after payment of my just debts, funeral and testamentary expenses, in trust to put and place the same on good VOL. II.

61

1843.-Greene v. Potter.

and government or real securities, at interest, and to pay and apply the interest, dividends, and annual proceeds thereof, after paying the annuities herein before by me given unto and equally amongst my brothers, Thomas Potter, J. R. Potter, and George Potter, and my sister Mary, wife of A. M. Barker, for their respective natural lives, &c., [with a reversionary bequest to their children.] And lastly, I nominate and appoint said J. Bourne and W. Hill, and my said brother Thomas Potter, joint executors of this my will and testament.

[*520]

*At the testator's death, Betty Phillips, the legatee named in his will, was an infant of the age of six years. She attained the age of twenty-five on the 30th April, 1842, and afterwards, with the consent of the trustees of the will, married one Greene, a defendant in this suit.

The object of the bill was to obtain a decree of the Court for payment to the plaintiff, Mrs. Greene, of the accumulated surplus rents arising from the estates in the testator's will first devised, after allowing for her maintenance during her minority, and also of the accumulated rents of the estates thereby secondly devised, from the death of the testator to the time she attained twentyfive.

Mr. Wigram (with whom was Mr. W. Harrison) for the plaintiff.-The devise, in this case, is not distinguishable from those in Phipps v. Akers, (a) and Phipps v. Williams.(b) [The ViceChancellor referred to Gibson v. Lord Montfort.(c)] In the second devise, in this case, the gift is to the trustees "upon trust, in case the said B. Phillips should live to attain the age of twentyfive, or marry with consent," to permit her to occupy and receive the rents for her natural life, with a proviso, that the estate shall go over if she dies under twenty-five, unmarried, and without issue. The words "in case" will not prevent the gift from vesting. In Edwards v. Hammond, (d) the word used was "if." In Doe d. Hunt v. Moore, (e) the word was "when." From the gift over, the Court will infer that the prior devisee takes a vested

(a) 6 Jurist, 745. (b) 5 Sim. 44; 3 Cl. & F. 665. (d) 3 Lev. 132: 1 N. R. 374, n.

(c) 1 Vez. sen. 485.

(e) 14 East, 601.

1843.-Greeno v. Potter.

interest, and, if so, she will take the rents. In the first devise, there is a trust for the accumulation of rents; but upon the whole, it is like Boraston's Case.(a) [The Vice-Chancellor.-Here are the words "uses and purposes of this my will."] If the surplus rents *are to sink into the estate, you have not [*521] the uses and purposes expressed; if they go to the tenant for life, you have.

Mr. Jervis for the trustees.

Mr. Swanston and Mr. Renshaw for the residuary legatees.The surplus is expressly directed to accumulate. That accumulation is the subject of the residuary clause. No light can be got from the cases as to the construction of the instrument here, which is peculiar. With respect to the first devise, the word "whole" shows that the testator intended to give the plaintiff, at her age of twenty-five, a different interest in the rents from that which she was to have before that period. And this construction, is strengthened by the direction for maintenance out of the fund. As to the second devise, the words "in case" are stronger than the corresponding words in the cases which have been cited in Akers v. Phipps. Lord Brougham considers Doe v. Moore as of very questionable authority. Genery v. Fitzgerald.(b)

THE VICE-CHANCELLOR.-With regard to the second devise, (taking that first into consideration,) the testator gives the Ilkeston estate to trustees, upon trust, in case Betty Phillips should live to attain the age of twenty-five years, or marry with such consent as by the will is required, to permit her to occupy and enjoy that property, or receive the rents and profits thereof for her natural life, for her separate use and benefit, and after her decease, then upon trust for her issue &c. Now, in construing this gift, it must be recollected, that in two subsequent parts of

his will, he makes these provisions:-"And my mind and will