English characters; he has transferred the scene to England; he has made the alterations necessary for making it an English comedy, and he has left out a great number of speeches and passages-especially in the first act-which would seem to me to imply, that at first he was really making an imitation or adaptation, and afterwards was minded more completely to make a translation. The first two acts seem to me particularly to be what is referred to in the Act itself as an imitation or adaptation. Whether it is a fair imitation or adaptation is another question; but if one wanted to have an example of what is an imitation or adaptation to the English stage, one would have said that this is exactly the thing which is meant. It is an imitation and adaptation to the English stage; that is, you have transferred the characters to England, you make them English characters, you introduce English manners, and you leave out things which you say would not be suitable for representation on the English stage. Now that is not, in my view of the case, what the Act requires, for some sufficient purpose as I have said before, when it requires that a translation should be made accessible to the English people. What is required is, that the English people should have the opportunity of knowing the French work as accurately as it is possible to know a French work by the medium of a version in English. That seems to me to be what was intended. Having come to the conclusion that this is not a translation, I have also come to the conclusion that the Plaintiff has failed in complying with the conditions precedent which the Act has imposed upon him in order to entitle him to sustain this suit. It is said that one ought to give a liberal interpretation to the statute, and that one ought not to strain the meaning of "translation," or any other word, for the purpose of depriving a foreign author of the benefit of the Act. Of course not. One ought to take a liberal view, and one ought not to strain the words, but one must apply, and give a natural meaning to, the words. According to my view of the case, there would not have been the slightest difficulty whatever in the Plaintiff obtaining the full benefit of his assignment, and of putting himself in a position to prevent any representation of the French play, or of any English translation of it, if he had simply employed Mr. Sutherland V.-C. J 1870 WOOD บ CHART V. WOOD V.-C. J. 1870 WOOD v. CHART, WOOD V. WOOD. Edwards to do what Mr. Edwards could very well have done, namely, to make a translation-that is to say, if he had said, Now make a translation of this; do not be thinking of adaptation or imitation for the English stage, but make a translation of it.” Mr. Edwards could have made such a translation, and it could have been published in this country; and if it had been published in this country then it would have been quite open to the author, or the person claiming under the author, to have represented that translation with any abbreviation, with any excision, with any alteration, with any adaptation which he might have thought fit for the purpose of making it more suitable to the English stage. I have no doubt whatever, if he had first published a translation, that he could then have acted the piece which Mr. Sutherland Edwards has called a " version," and that nobody else could have acted anything like that-anything approaching to that—because, although I say this is not a translation, but, in my view, is rather an imitation or adaptation to the English stage, I have no hesitation whatever in saying that, if the author had complied with the condition required by the Act of Parliament, or any other person claiming under the author had complied with that condition, I should at once have restrained the acting of such a piece as this by any one else as not being a fair imitation or adaptation, but as being a piratical translation of the original work. That would have been the proper thing for me to have done in that case; but the Plaintiff having brought his suit, not having a title, must fail; and must fail, of course, with the usual consequences of the experiment which he has tried, and must pay the costs. At present, I am bound to say, I think that the piece complained of is still nearer a translation. I have not heard Mr. Lindley out on that part of the case, but I think that Mr. Webster's version would have been attacked more easily than Mr. Edwards' in the hands of an adverse party would have been, if the Plaintiff had had a proper title. That cannot, in my opinion, make any difference as to the costs, because the suit has been brought by the Plaintiff upon a title which he has not got. He must pay the costs of the suit of Wood v. Chart, which will include the costs of the motion for injunction. In Wood v. Wood there will be no order on the present motion, except that the Plaintiff pay the costs of the motion to dissolve. Solicitors for the Plaintiff: Messrs. Pike & Son. V.-C. J. 1870 WOOD v. CHART. WOOD v. WOOD, THOMPSON v. FISHER. Will-Construction-Executory Devise, Devise subject to life interest of testator's widow, upon trust to convey, assign, and assure freehold property "unto and to the use of my son T. F., and the heirs of his body lawfully issuing, but in such manner and form, nevertheless, and subject to such limitations and restrictions, as that if T. F. shall happen to die without leaving lawful issue, then that the property may after his death descend unincumbered unto and belong to my daughter R. F., her heirs, executors, administrators, and assigns": Held, that the devise was an executory trust to be executed by a conveyance to the use of T. F. during his life, with remainder to his first and other sons and daughters as purchasers in tail, with remainder to R. F. in fee. ROBERT FISHER, by his will, dated the 5th of December, 1829, after leaving certain property to his wife Mary Fisher, and to Ruth Fisher his daughter, devised and bequeathed the residue of his landed property, as well freehold as leasehold, to trustees upon trust for his wife Mary Fisher, for her life or during widowhood; and after her decease or second marriage, whichever should first happen, upon trust, that the trustees should convey, assign, and assure all his seven houses in Queen Street, and on the north side of Ann Street, also his malt-kiln and garden behind the same, and also the three cottages in Bridge Lane, all situate respectively in Lancaster aforesaid, and every of them, with their appurtenances, "unto and to the use of my son Thomas Fisher and the heirs of his body lawfully issuing, but in such manner and form nevertheless, and subject to such limitations and restrictions, as that if the said Thomas Fisher shall happen to depart this life without leaving lawful issue, then that the said hereditaments and premises and VOL. X. R 2 V.-C. J. 1870 May 31. every of them may after his decease descend unincumbered unto and belong to my daughter the said Ruth Fisher, her heirs, executors, administrators, and assigns, according to the respective nature and tenure thereof." The testator died in November, 1834; Mary Fisher, his widow, died in 1857. Ruth his daughter (wife of Michael Thompson) died in September, 1866, leaving the Plaintiff, Robert Fisher Thompson, her eldest son and heir-at-law. Thomas Fisher and his wife were both past seventy, and there had never been any issue of their marriage. The property described in the devise, with the exception of the Bridge Lane cottages (which were leasehold), was freehold, of which testator was seised in fee simple. Certain conveyances of the property comprised in the above devise had been executed by Thomas Fisher, and these conveyances proceeded on the assumption that he was entitled under the will to be made tenant in tail of the freehold property thereby conveyed. The Plaintiff R. F. Thompson, on the other hand, insisted that, according to the true construction of the will, Thomas Fisher became entitled to an estate for his life only, with a limitation over in favour of testator's daughter Ruth, and that the direction for such conveyance was an executory trust to be executed by a limitation to Thomas Fisher for life, with remainder in favour of his issue as purchasers in tail, with remainder to Ruth Thompson in fee. As heir-at-law of Ruth Thompson, the Plaintiff claimed to be entitled to the property in fee simple, subject to the life estate of Thomas Fisher and the limitations over in favour of his issue. The bill was filed to carry the trusts of the will into execution, to obtain a declaration to the above effect, and to set aside the conveyances made of the property by Thomas Fisher, and in lieu thereof that proper assurances might be made. Mr. Joshua Williams, Q.C., and Mr. Marten, for the Plaintiff, contended that an executory trust had been created by the will, and that the Court in such case, looking at the testator's intention, would endeavour to give the fullest possible effect to that intention, by moulding what remained to be done so as to carry it into execution to the extent of disregarding the technical sense of the the 11: to language used by the testator: Leonard v. Lord Sussex (1); Shelton v. Watson (2); Davenport v. Davenport (3); Lewin on Trusts (4). Mr. Eddis, Q.C., and Mr. Harrison, for the Defendants, contended that an estate tail was created in Thomas Fisher, and that the Court would not give effect to the supposed general intention (of benefit to Ruth Fisher after the death of her brother without issue), as against the particular intention shewn by the use of technical language, to which full legal effect could only be given by construing the devise as an estate tail: Ex parte Wynch (5); Doe v. Gallini (6); Seale v. Seale (7); Blackburn v. Stables (8); Ex parte Davies (9); Egerton v. Earl Brownlow (10); Coltsmann v. Coltsmann (11); Viscount Holmesdale v. West (12). SIR W. M. JAMES, V.C.: The case is, I think, clear, both upon principle and on authority. Referring to the distinction between an executory trust and a trust executing itself, stated by Lord St. Leonards in Egerton v. Earl Brownlow (13): "Has the testator been what is called, and very properly called, his own conveyancer? Has he left it to the Court to make out from general expressions what his intention is; or has he so defined that intention that you have nothing to do but to take the limitations he has given to you, and to convert them into legal estates?"—this is as exactly the case of an executory trust as could be. The testator has not been his own conveyancer. He has directed the trustees to convey, assign, and assure the property "unto and to the use of my son T. F., and the heirs of his body lawfully issuing, but in such manner and form nevertheless, and subject to such limitations and restrictions, as that if T. F. shall happen to die without leaving lawful issue, then," &c. These words evidently contemplated some further instrument in order to complete the limitations, which must have effect given to them so far as the law (1) 2 Vern. 526. (2) 16 Sim, 543. (3) 1 H. & M. 775. (4) Pages 86-99. (5) 5 D. M. & G. 188, 207. (6) 5 B. & A. 621. (7) 1 P. Wms. 290. (8) 2 V. & B. 367. (9) 2 Sim. (N.S.) 114. (10) 4 H. L. C. 1, 210, 211. (Opinion of Lord St. Leonards). (11) Law Rep. 3 H. L. 121. (12) Law Rep. 3 Eq. 474. (13) 4 H. L. C. 210. V.-C. J. 1870 THOMPSON v. FISHER. |