Testator gave 4,000l. to his grand-daughter, and directed his executors to pay it to her on her attaining twenty-one, and to apply the interest of it for her maintenance, during her minority. By a codicil, he directed that his grand-daughter should have only the interest of 2,000, for her maintenance, until she attained twenty-three, and that the interest of the other 2,000l. should be accumulated, and that, on her attaining twenty-three, his executors should have the whole settled upon her, for her life, and, after her death, to her child or children, in equal proportions, so that no husband of hers might spend it. The grand-daughter attained twenty-three, and died without having had a child, and without the executors having made any settlement of the legacy.

Held, that the gift in the will was an absolute gift, and that, in the events that had happened, it was not affected by the codicil.

THIS was a special case, stated for the opinion of the court under Sir Geo. Turner's Act, 13 & 14 Vict. c. 35.

Thomas Biddles, the elder, made his will dated the 25th of October, 1834, which, so far as it need be stated, was as follows:

"I give to my grand-daughter, Elizabeth Biddles Noon, the sum of 4,000l., to be paid to her on her attaining the age of twenty-one years: and I direct my executors to place the same out at interest, and apply a competent part of such interest for her maintenance, education or advancement in life, until she shall attain that age: but, in case she shall die under that age, then the said principal sum and all unapplied interest, and her share of the residue of my estates, shall go and belong unto all my sons and my daughter, Mary, in equal shares, absolutely forever. I give, devise, and bequeath all the residue and remainder of my real and personal estate whatsoever, equally between and amongst my sons, James, Robert, John, William and Thomas, my daughter, Mary, and the said Elizabeth Biddles Noon, and to their several heirs, executors, administrators and assigns, absolutely."

1851.-Bell v. Jackson.

*The testator made a codicil, dated the 21st of Janu- [*548] ary, 1837, which, so far as it need be stated; was as follows:

"I will and direct that my grand-daughter, Elizabeth Biddles Noon, shall only have the interest of 2,000l., for her maintenance, education and bringing up until she arrives at the age of twentythree years; and the interest of the other 2,000. I direct my executors to put out to interest, so that it may become principal, and, at the time of the said Elizabeth Biddles Noon arriving at the age of twenty-three years, I hereby direct my said executors to have the whole settled upon her for her life, and, after her death, to her child or children, in equal proportions, so that no husband of hers may spend it.”

The testator made a second codicil, dated the 22d November, 1839, which, so far as it need be stated, was as follows:

"I hereby revoke that portion of my will which gives the rest and residue of my personal estate to be divided amongst my sev eral sons and daughters and Elizabeth Biddles Noon (except in case of the death of the said Elizabeth Biddles Noon): and I do hereby give the whole of the residue of my personalty to my son, Thomas Biddles, he paying the whole of my funeral and testamentary expenses instead of a portion of its being borne by my three sons, John, William and Thomas Biddles."

The testator died on the 5th of December, 1839. His executors set apart and invested a sufficient part of his estate to satisfy the legacy of 4,000l.; but they did not make a settlement of it pursuant to the direction in the first codicil.

*Elizabeth Biddles Noon attained 23, in 1845. In [*549] 1849, she married the plaintiff; and, by the settlement then made, she assigned all her interest in the legacy of 4,000., to the plaintiff, subject to a proviso that nothing therein contained should prejudice her sole and separate life-interest in the legacy. In February, 1851, she died without having had any

1851.-Bell v. Jackson.

issue, and without any settlement of the legacy having made pursuant to the direction in the first codicil. All the interest of the legacy was paid to her up to the time of her death.

The question was whether, in the events which had happened, the plaintiff took any and what interest in the legacy of 4,0007. bequeathed by the will and first codicil?

Mr. Freeling, for the plaintiff, said that the gift of the legacy, in the will, was an absolute gift; and that, though it was cut down by the first codicil, it was cut down only for certain purposes; and that, where there was, first, an absolute gift, and then a revocation of it for specified purposes, if those purposes failed, the absolute gift took effect. Lassence v. Tiernay(a) and Mayer v. Townsend.(b)

Mr. Wooley appeared for the defendant, the testator's surviving executor, and submitted the question to the court.

The VICE-CHANCELLOR held that the interests in the legacy, which Mrs. Bell's children would have taken, if she had [*550] had any, were carved out of the absolute gift of *the legacy in the will; and that, as she had never had a child, the absolute gift in the will remained unaffected: and he declared that she took an absolute interest in the legacy, subject to the interests of her children, if she had had any.(c)

(a) 1 Macn. & Gord. 551. See Judgment 561 and 562.

(b) 3 Beav. 443.

(c) The court has no power to make a decree or order on a special case. & 14 Vict. c. 35, sect. 14.

See 13

1851-Beman v. Rufford.

BEMAN v. RUFFORD.

Agreement.-Pleading.—Railway Company.

1951: 9th, 10th, 12th, 27th, 28th and 29th May.

A railway company constituted under an act of Parliament, agreed, with two other railway companies, that the whole concern, without incumbrance, when completed, should be worked by those two companies, who should have perfect control and exercise all the rights of the first-mentioned company, and who should find stock, and work the concern for twenty-one years.

Held, that the agreement was illegal, as being in violation of the act under which the first-mentioned company was constituted; and that, though a very large ma jority of the shareholders present at a meeting, had sanctioned the agreement, the ́dissentients might file a bill on behalf of themselves and the other shareholders against the company and its directors, to have it declared void.

Railway Company.

A railway act enacted that the railway should be constructed, in all respects, to the satisfaction of the engineer of the Great Western (a broad-gauge railway), and that it should be formed of such gauge, and according to such mode of construction as to admit of its being worked continuously with the Great Western.

The court was of opinion that the railway might be constructed on the narrow gauge as well as the broad.

In the spring of 1844, a scheme was formed, by certain individuals in concert with the Great Western Railway Company, for making a broad gauge railway from Wolverhampton by Worcester to Oxford; where it was to unite with the Great Western Railway; and, in August following, the committee of management of the projected railway, agreed, with the directors of the Great Western, *to grant a lease of it to [*551] that company, on certain terms (which, however, were varied by an agreement of the 20th of September, 1844): and the Great Western agreed to use their exertions and influence to obtain an act of Parliament for making the railway. Accordingly, in the next session of Parliament, a bill was brought in for that purpose; and, after encountering great opposition from the company then called the London and Birmingham Railway Company, it received the royal assent in August, 1845. By it the projected company was incorporated as "The Oxford, WorVOL. I.-N. S.

30

1851. Beman v. Rufford.

cester and Wolverhampton Railway Company :" and, after reciting that the formation of the intended railway would be beneficial to the interests of the Great Western, the act empowered that company to subscribe to and become shareholders in the undertaking, to the extent of 750,000l.; and to depute a person to vote on their behalf, at meetings of the company; and to nominate six members of their body to be directors of the company. The act then enacted that the railway should commence by a junction with the Oxford branch of the Great Western, and terminate at or near the Wolverhampton station of the Grand Junction Railway Company: that the railway should be constructed and completed, in all respects, to the satisfaction of the engineer of the Great Western, and should be formed of such gauge and according to such mode of construction as would admit of its being worked continuously with the Great Western: and, after reciting that the railway was intended to be connected with the Birmingham and Gloucester Railway at Abbotswood and with the Grand Junction at or near Wolverhampton, the act enacted that the company thereby incorporated, should lay down and. maintain, upon the whole extent of its line between the junction

of it with the Birmingham and Gloucester at Abbots[*552] wood, and the junction of it with the Grand Junction

near Wolverhampton, additional rails adapted to the gauge of those two railways, so as to allow of the free passage of carriages passing to or from them. (a) A subsequent section empowered the company to lease their railway to the Great Western, for such term of years and on such conditions as might be mutually agreed on, and also to sell it to the Great Western; and it enacted that, after such sale, the two railways should be amalgamated. The act then empowered the Oxford, Worcester and Wolverhampton, and the Great Western Companies, to enter into such contracts for effecting the purposes aforesaid, or for otherwise working or using the railway or any part theoeof, or for the maintenance and repair thereof or any part thereof, as those two companies might deem advisable, and subject to such terms and conditions as might be mutually agreed upon between

(a) Sec. 44. It is referred to in the judgment.