1843. Meredith v. Farr.

whom the testator meant under the description in his will, and including her daughter Elizabeth, aged [*527] fourteen" that Mary Jones died in 1837, and her husband in the year following: that the testator's daughter Catherine married James Phillips, who died in 1814: that she had issue of such marriage one child only, William Edward Phillips; that since her husband's death she had had three children, John, Angelina, and Sarah, all of whom were living at the date of the testator's will, and of his death.

Upon the cause coming on to be heard for further directions, the question was, what interest, if any, the illegitimate children of the testator's daughters took under the will. ?

Mr. Hallett, for the three illegitimate children of Catherine Phillips, submitted, that as they were all named in the second bequest of £300, they were entitled to share with William Edward Phillips, the moiety of the first mentioned bequest of £300, given to the children of Catherine Phillips.

Mr. Lloyd, for the two illegitimate children of Mary Jones, claimed a similar benefit for those children with respect to the other moiety of the first-mentioned £300. He observed, that, at all events, Elizabeth must be considered as a child of Mary Jones. Gill v. Shelly.(a)

THE VICE-CHANCELLOR.-In the case cited there were but two children, the parent was dead, and the word was plural. There was a designation of the persons to take. In this case, I think it would be too dangerous to let in the two illegitimate children of Mary Jones under the first bequest. The consequence is, that Keziah is altogether excluded; but the four other illegitimate children, whose names are given, take interests under the will.

*DECLARE that, according to the true construction of the will of the [*528] testator, William Farr, the six children of his daughter Mary Jones, born in lawful wedlock, named in the Master's report, and William, John, Angelina, and Sarah Phillips, the four children of Catherine Phillips named in the Master's report,

1843. Meredith v. Farr.

are entitled in equal moieties to the legacy of £300, by the will of the said testator, bequeathed in trust for his daughter Elizabeth Williams, now the defendant Elizabeth Edwards, the wife of the defendant Thomas Edwards, subject to the life interest therein of the said defendant Elizabeth Edwards; and declare, that the plaintiffs, William, John, Angelina, and Sarah Phillips, are entitled to the legacy of £300, given by the will of the said testator in trust for his daughter, Catherine Phillips, for her life, as therein mentioned, subject to the life interest therein of the said Catherine Phillips, and subject to the share of the said Sarah Phillips in the same last-mentioned legacy, being devested in favor of the said William, John, and Angelina Phillips, in the event of the said Sarah Phillips dying under the age of twenty-one years: And declare, that according to the true construction of the will of the said testator, all the children of his daughter Mary Jones, living at the death of the said testator, and born since in lawful wedlock, and also the defendant Elizabeth James, the wife of the defendant Charles James, found by the said Master's report to be an illegitimate daughter of the said Mary Jones, are entitled to the legacy of £300, given by the will of the said testator,to his daughter Mary Jones for her life, subject to the interests of such of the same last-mentioned children as have not attained the age of twenty-one years, being devested in the event of such children, or any of them, dying under the age of twenty-one years, in favor of such of the same children as have attained, or shall hereafter attain the age of twenty-one years: And declare, that the defendant Keziah Harris, the other illegitimate child of the said Mary Jones mentioned in the said Master's report, is not entitled to participate in the said last-mentioned legacy of £300.

[*529]

1843: July 21st.

*NOAD V. BACKHOUSE.

Upon an application for substitution of service of subpoena to appear and answer, on the general solicitor of a defendant who was out of the jurisdiction, the Court, in the existing state of authorities on the subject, referred the applicant to the Lord Chancellor.

Receiver appointed of a Government pension, the trustee being out of the jurisdiction.

THE defendant, Backhouse, was trustee of a Government pension for the plaintiff, who some time since filed a bill against him to compel payment of it. To that bill he appeared by Messrs. B. & B. as his solicitors; but it was afterwards dismissed against him, the plaintiff understanding that if that course were taken, she would receive payment. Upon,the plaintiff again applying for payment, after the dismissal of the bill, the defendant, through Messrs. B. & B., refused the application,

1843.-Noad v. Backhouse.

alleging that he could not pay the pension without the consent of some other parties, or the direction of the Court. He afterwards put a stop upon the pension, and went out of the jurisdiction of the Court. The plaintiff then brought her second blll against the defendant, and applied to Messrs. B. & B. to accept service They declined to do so, but promised to write to the defendant; and, in reply to repeated applications, stated that they had received no instructions from him. Upwards of two months having elapsed since the first application to Messrs B. & B.,

Mr. Wigram and Mr. Osborne, for the plaintiff, moved that service of subpæna to appear and answer, on Messrs. B. & B., might be deemed good service on the defendant. They cited Anon. ;(a) Kinder v. Forbes ;(b) Smith v. The Hibernian Mining Company (c) English v. Kendrick.(d) [The Vice-Chancellor referred to a case of Hobhouse v. Courtney, (e) which he said had recently been decided by the Vice-Chancellor of England.]

*THE VICE-CHANCELLOR.-This application is made [*530] not under any act of Parliament, or any general order of the Court, but it is an application to the general jurisdiction of the Court, founded on particular circumstances, and it relates to process at the inception of the suit, for the purpose of constituting the suit against this party. Without expressing any opinion on the case, I think that, considering the state of the decisions, the application had better be made to the Lord Chancellor.

The case was afterwards compromised.

Note, that in this case, the plaintiff, immediately after filing her second bill, moved for and obtained a receiver of the pension.

(a) 2 Vez. sen. 23. (6) 2 Beav. 503. (c) 1 Sch. & Lef. 238. (d) 6 Madd. 205. (e) Since reported; 12 Sim. 140.

Under the 8th of the Orders of August, 1841, the plaintiff may obtain leave to enter an appearance for the defendant to an amended bill.

MR. SPURRIER, for the plaintiff, moved, under the 8th of the Orders of 26th August, 1841, for leave to enter an appearance for the defendant to the amended bill. A subpoena to appear and answer the amended bill had been served, on the 11th July, upon the defendant's solicitor.(a)

THE VICE-CHANCELLOR said that he did not exactly understand the meaning of an appearance to an amended bill. He thought that some authority should be shown for the necessity of the present motion.

Spurrier then obtained leave to consult the authorities, and on the following day, mentioned Lord Abingdon v. Butler,(b) Angerstein v. Clarke,(c) Hinde, Pr. 22, and Wy. Pr. [*531] *Reg. 66, which appeared to him to show that, according to the old practice, a subpœna to appear to an amended bill was necessary. [The Vice-Chancellor. The language of the 20th Order of April, 1828, is "subpœna to answer an amended bill," which seems correct.] In other orders an appearance to an amended bill seems to be contemplated. Thus the Orders of August, 1841, Nos. 7, 8, 9, 16, 17, 18, 19, 34, 35, 36, 38, 39, speak of "the bill" indefinitely, yet No. 17 must apply to an amended bill. Others of the same orders, either in themselves, or by reference to each other, define the bill. Such is the case with Nos. 20 to 29, and No. 33; and from Nos. 23 and 26, taken together, it seems clear that an appearance to an amended bill was intended. The same thing appears from the form of subpoena attached to the Orders of 21st December, 1833.

(a) See Ord. 3rd April, 1828, No. 20; Ord. 26th Oct. 1842, No. 19. (b) 1 Ves jun. 206.

(c) Id. 250.

1843.-Firth v. Hopkins.

The tenth of those orders has been held to apply to amended bills. Brooks v. Purton.(a)

THE VICE-CHANCELLOR.-Well, I think if you want an appearance, you ought to have it.

ENTER an appearance.

Give the defendant's solicitor notice, within three days,

that this order has been made.

1843: July 27th.

*LEE V. YOUNG.

[*532]

Under the provisions of a marriage settlement, trustees had power, with the consent of the husband and wife, or the survivor, to vary the securities by selling out the settled stock and investing it in land, and it was provided that it should be lawful for the trustees, with the consent of the husband and wife, or the survivor, to lay out the whole of the monies to be produced by the sale of the stock in the purchase of freehold or copyhold estates of inheritance, or leasehold for a term of not less than sixty years. The husband died, and the wife married again :-Held, that the trustees were not bound, on the application of the wife and her second husband, to invest any of the stock on leaseholds, although the security might be eligible, and for a longer term than sixty years.

By an indenture, bearing date the 30th January, 1827, being the settlement made previously to the marriage of Alfred T. Perkins, and Charlotte his wife, certain sums of stock, one of which had been transferred, and others had been agreed to be, and were afterwards transferred into the joint names of William Augustus Pemberton and Henry Young, were settled upon trust, after the solemnization of the marriage, that the said trustees, and the survivor of them, and the executors, administrators, and assigns of such survivor, should either permit the same to remain in their actual state of investment, or should, with the consent in writing of the said A. T. Perkins and his wife, during their joint lives, and after their decease, of such of them as should first depart this life, with the consent in writing of the survivor of them during his or her life, and after the decease of

(a) Cr. & Ph. 233.