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1844. Roberts v. Jones.

and payment, I think he was justified in presenting this petition. The order must be made, and I cannot charge him with the costs of the proceedings. The costs of all parties must be paid out of the fund in the hands of the receiver.[1]

1844: January 21.

ROBERTS V. JONES.[2]

A plaintiff neglected to set down a plea for argument. The defendant moved, ex parte, for the costs of the plea and of suit. The court declined to make the order.

In this case, the defendant had filed a plea; the plaintiff neglected to set it down for argument within the three weeks, according to the exigency of the 35th order of the 26th of August, 1841, (a) in consequence of which, it was "to be held good to the same extent, and for the same purposes as a plea allowed upon argument."

Mr. Simons now moved, ex parte, that the plaintiff might pay the costs of the plea and suit. He observed that this was like the case of a demurrer submitted to under similar circumstances; Cartwright v. Smith,(b) Mackenzie v. Claridge;(c) and he referred to the 31st order of the 3d of April, 1828,(d) which directs, that on the allowance of a plea to the whole suit, the plaintiff shall pay the taxed costs of the plea and suit, unless

(a) Ord. Can. 175. (b) 6 Beav. 121.

(c) 6 Beav. 123. (d) Ord. Can. 17.

[1] As to a receiver's allowances, see Shewell v. Jones, 3 Russ. 522; S. C. 2 Sim. & Stu. 170; Malcolm v. O'Callaghan, 3 Myl. & Cr. 52; Dow v. Croft, 2 Beav. 488. A receiver had been accustomed to bring in his accounts very irregularly in point of time, and thereby the actual balances in his hands never clearly appeared. He was specially ordered to bring in his accounts before a given day in every year, accompanied with an affidavit showing the actual balance in hand. Inquiries were also directed as to former balances, and he was ordered to pay the costs of the ap plication. Bertie v. Lord Abingdon, 8 Beav. 53.

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1844. Richardson v. Hastings.

the plaintiff undertakes to reply, or the court shall think fit to make other order.

[*58]

"THE MASTER OF THE ROLLS:-The plaintiff ought to have notice of this motion, and have an opportunity of undertaking to reply. The case is not like that of a demurrer; for, notwithstanding the plea is to be held good, still the plaintiff has a right to reply thereto, and to go into evidence to disprove the allegations it contains.

1844 January 21.

RICHARDSON v. HASTINGS.

Liberty given, ex parte, to amend a clerical error in a demurrer, the twelve days for demurring not having expired.

MR. HUBBACK moved, ex parte, for leave to amend a demurrer, by inserting the words "this defendant" for "these defendants."

The twelve days for demurring had not expired.(a)

THE MASTER OF THE ROLLS gave liberty to make the amendment, the defendant undertaking to amend the plaintiffs' office copy.

(a) Ord. Can. 46.

1843.-Upjohn v. Upjohn.

*UPJOHN v. UPJOHN.[1]

1843: November 7; December 22.

[*59]

A testatrix, having the moiety of an estate, directed her executors to purchase the other moiety; and "if the purchase should be completed within twelve months after her death," she gave the entirety on certain trusts; " but in case her executors should not be able," within that time, "to purchase it," she directed her moiety to be sold, and the produce, together with 1100l. to be held on other trusts. The will contained a gift of the residue of her estate of whatever kind, &c. The purchase "was not completed" within the time, although the executors "were able," so that neither of the expressed events happened. Held, first, that the trusts both of the estate and 11007. failed; and secondly, that as between the devisees and heir at law, the latter was entitled to the testatrix's moiety of the estate.

As to the liability of the executors in this case, quære.

THIS case appears fully stated in the judgment. It was ar gued by

Mr. Pemberton Leigh and Mr. Prescott White, for the plaintiff, and by

Mr. Sidebottom, Mr. Heathfield, Mr. Glasse, Mr. Purvis, Mr. Bagshawe, Mr. C. J. Hall, Mr. Blunt, Mr. Kindersley, and Mr. Turner for the several defendants.

Mr. Pemberton Leigh, in reply.

The cases cited were on points not the subject of the reported decision.

Dec. 22.-THE MASTER OF THE ROLLS:-The questions in this cause arise upon the construction of the will of Ann Tookie, dated the 18th of October, 1796.

Some time before the date of the will, an undivided moiety of the estate in question had become vested in the testatrix, by descent from her cousin Ann Burgis. Anthony Burlton Bennett was the owner of the other moiety, and the tes- [*60]

[1] S. C. (or a case arising under the same will,) post, 152.

1843.-Upjohn v. Upjohn.

tatrix, contemplating that her executors might be able to purchase Mr. Bennett's moiety, or might not be able to do so in twelve months, by her will, made dispositions adapted to either event. If Mr. Bennett were disposed to sell his moiety, she directed her executors to purchase it; and if the purchase should be completed within twelve months after her death, she gave her own moiety to trustees, in trust, during the life of her daughter Catherine Mary Page, to pay the rents to her; and after her death she gave the same moiety to her grandson William George Page and the heirs of his body: and in default of such issue, to her grandson James Clement Page and the heirs of his body; and in default of such issue, to her granddaughter Catherine Anne Page and the heirs of her body; and in default of such issue, to the heirs of the body of her daughter Catherine Mary Page: and in default of such issue to her nephew Willian Burlton in fee. And if the executors should purchase Mr. Bennett's moiety, she directed the same to be secured and settled, in the manner she had devised the moiety of which she was then possessed, so that the whole might go and descend together.

This was the disposition she made, in contemplation of her trustees and executors completing the purchase of Mr. Bennett's moiety within twelve months after her death. She then proceeded to provide for the other event, and expressed herself as follows: "But in case my said executors shall not be able within twelve months after my decease, to purchase, on fair and equitable terms, the other moiety of the said estate, then my will and mind is, that they do sell the undivided moiety that I now possess, for the most money that they can procure for the same, and place the money arising from such sale on mortgage secu[*61] rity, or vest it in the public *funds; and also that they raise 11007. out of my personal estate, and place it on the like security." And she then gave the interest of the sums to be thus invested, to her daughter for life, as she had given to her the rents of the whole estate, if Mr. Bennett's moiety had been purchased; and after the death of her daughter, she gave the purchase money and the 11007. to her grandson William George Page, if then living, and he should then have attained the age of twenty-one years; but if he died under that age, she gave the

1843.-Upjohn v. Upjohn.

principal sum to his brother James Clement Page; and if he also should die under age to his sister Catherine Anne Page, on her attaining twenty-one years of age or day of marriage; and if she died under age and unmarried, then she gave the same sums to any other children her daughter might have, to be divided between them equally, or if her daughter died without children or none of those she left should attain twenty-one years, she gave the same principal sum to her nephew William Burlton. And she gave to her executors all the residue of her estate, of what kind or nature soever, in trust, nevertheless, that they should place the same on mortgage securities, or vest the same in government security, and pay the interest therefrom arising to her daughter Catherine Mary Page, for her separate use for life, with power for the executors, with her consent, to employ any part of the residue towards the support, education, and advancement in life of her grandson William George Page; and after the death of her daughter, she gave the residue to all the children of her daughter, to be equally divided between them, share and share alike, with survivorship, if any should die under twenty-one years of age; and if none should attain that age, she gave the residue to William Burlton.

By the decree made on the hearing of the cause, inquiries were directed, for the purpose of ascertaining, whether all [62] the persons who were interested in the estate were parties

to the cause; and the master was directed (in case he should find that all parties interested were parties to the suit) to inquire, amongst other things, whether the executors of Ann Tookie were able, within twelve calendar months after her decease, to purchase, on fair and equitable terms, the moiety of the estate in question which did not belong to her; and in answer to this inquiry the master has reported, that a negotiation was entered into, immediately after the decease of the testatrix, for the purchase of the moiety of the estate which belonged to Mr. Anthony Burlton Bennett, who expressed his willingness to sell the same to the trustees, long before the expiration of the time named by her for the completion of the purchase; and it was understood, by the parties interested under the will and by Mr. Bennett, that the purchase would be completed within twelve calendar months

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