1844. ROBERTS v. JONES. 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. Jan. 21. RICHARDSON v. HASTINGS. Liberty given MR. HUBBACK moved ex parte for leave to amend ex parte to amend a clerical error in a demurrer, the twelve days for demurring not having expired. 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. Nov. 7. Dec. 22.. THIS Mr. Pemberton Leigh and Mr. Prescott White, for the Plaintiff, and by having the moiety of an estate, directed her executors to purchase the other moiety; and "if the purchase should be Mr. Sidebottom, Mr. Heathfield, Mr. Glasse, Mr. Purvis, Mr. Bagshawe, Mr. C. J. Hall, Mr. Blunt, Mr. Kinders- completed ley, and Mr. Turner, for the several Defendants. Mr. Pemberton Leigh, in reply. within twelve months after her death," she gave the entirety on certain trusts; "but in case The cases cited were on points not the subject of the her executors reported decision. 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, should not held on other whatever kind, &c. 66 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 1100l. 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. 1843. UPJOHN v. UPJOHN. moiety, and the testatrix, 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 William 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 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 security, or vest it in the public will funds; funds; and also that they raise 1100%. 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 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 1843. UPJOHN V. UPJOHN. 1843. UPJOHN v. UPJOHN. whether all 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 after the decease of the testatrix; and the testatrix's daughter, in expectation that it would be completed, entered into possession of the entirety of the estate, soon after the death of the testatrix, but, in fact, the purchase never was completed, and Mr. Bennett having died intestate as to his moiety, his heir asserted his claim thereto, and sold and conveyed it to Mr. Upjohn; and, under these circumstances, the Master found, that the executors of the testatrix were able, within twelve calendar months after her death, to purchase, on fair and equitable terms, the moiety of the estate which did not belong to her. We have, therefore, this state of things: the executors might, according to the directions of the will, and therefore ought to have completed the purchase within twelve calendar months after her death, but they neglected to do so, and, in fact, the purchase never was completed. In the event of the purchase of Bennett's |