moiety being completed in twelve months, the testatrix limited the entirety of the estate in a particular manner. In the event of the executors not being able within twelve months to purchase Bennett's moiety, she directed her own moiety to be sold, and the purchasemoney, together with 1100., to be raised out of her personal estate, to be limited in another particular manner. Inasmuch as the purchase of Bennett's moiety was not completed in twelve calendar months after the testatrix's death, it is said, that the limitation of the entirety of the estate fails. And inasmuch as the executors were able to complete the purchase within the time, it is said, that the limitation of the purchase-money and of 1100%., directed in the event of their being unable to complete, fails. And both these limitations failing, it is contended, that the testatrix's moiety of the estate in question passes by the residuary clause in the will. The apparent object of the testatrix was, to limit and settle this particular estate, if the entirety could be obtained, for the purposes of her trust; she did not intend to limit any other real estate, or her own moiety of this estate, if the other moiety could not be obtained. On the contrary, her intention was to limit money only, if the other moiety of the estate could not be obtained; and for that purpose she desired to have her own moiety sold. The executors, as it would seem, by mere neglect, did not complete the purchase, and the moiety which might and ought to have been purchased according to the trusts of the will, has now vested in a person who is under no obligation to sell. Not only was the purchase not completed in the time limited by the testatrix, but there is no reason to suppose, and it is not alleged, that it can now be completed at all. The intention to limit this particular 1843. UPJOHN v. UPJOHN. 1843. UPJOHN v. UPJOHN. particular estate is wholly defeated, and, as the testatrix did not intend to limit any other real estate, or her own moiety of this particular estate, separately, I think that, under the circumstances, no effect can now be given to this devise. Again, the testatrix did not, in the event which happened (the executors being able to purchase the other moiety), intend to have her moiety sold, in order that the purchase money, together with 1100l. might be limited in the way she directed. Her apparent object was this: the sale and the limitation of the money were to take effect, only in the event of the executors being unable to purchase Bennett's moiety in twelve months, which they were not; and I do not think, that the default of the executors in not purchasing, can be allowed, contrary to the intention of the testatrix, to give effect to a limitation intended to take effect under different circumstances. It appears to me that the testatrix intended, at all events, to give a life interest to her daughter, and a certain succession of interests to the grandchildren named in her will; but it cannot be understood, for what reason she varied the limitations to grandchildren, so as to alter the interests, in the different events which she contemplated. It may be conjectured that she would have made no difference, between the event of the executors being able and neglecting to make the purchase in twelve months, and the event of their being unable to make the purchase in that time; but this would be no more than conjecture. The will affords no clue for the discovery of what her intention might have been, in the event which occurred; and the context of the will does not not assist in the construction of the particular clauses. In such circumstances, it appears to me that the safest course is to adhere to the strict words of the clauses. That which was the primary object of the testatrix was defeated by the neglect of the executors. That which was her object only in the event of the first being unattainable, can only have effect given to it, by allowing the neglect of the executors to defeat the first, for the purpose of making the second available, in circumstances different from those which were contemplated by the testatrix. Whether the executors, or those who represent them, can, in any way, be made answerable for the consequences of their neglect, does not appear to be a question in this cause; but it appears to me, that, under the circumstances, both the directions fail: that the 1100 is not to be raised, but remains part of the residuary personal estate. The remaining question is, whether the testatrix's moiety of the real estate in question passes by the residuary devise in the will, and I think that it does not, for although the words in which the residuary clause is expressed are large enough to comprise real estate, yet the testatrix having clearly intended to dispose of this particular estate in a different manner, it is plain that she did not intend it to pass as residue, and it appears to me that the heir-at-law became entitled to it. (a) It must, therefore, be declared, that the sum of 11007. is not to be raised out of the personal estate, and that, under the circumstances, the heir-at-law of the testatrix is entitled to her moiety of the real estate in question. (a) See Goodright v. Opie, 8 v. Fludd, Fort. 184.; Doe dem. Mod. 125., Wright v. Horne, Fort. 182., and 8 Mod. 222.; Roe Wells v. Scott, 3 Mau. & S. 300., 1843. UPJOHN v. UPJOHN. 1844. Jan. 25. On an application, by motion, for the appointment without a commission of a guardian ad litem to an MR. LINGREN v. LINGREN. DICK v. LACY. R. G. RUSSELL in the former case, and Mr. Beavan in the latter, moved for the appointment of a guardian ad litem to an infant resident abroad, without a commission. (a) The MASTER of the ROLLS, in both instances, said, infant abroad, that after the recent case which had come before him (b), an affidavit should be produced of the infancy of the party. in which a guardian had been assigned to a Defendant, (a) See Smith v. Palmer, 3 Beav. 10. Jan. 25. Where the Defendant submits to FIELD v. ROBINSON. MR. TURNER moved to stay all proceedings in the cause, on payment of the legacy claimed and pay the whole the costs of suit. Pemberton v. Topham. (a) demand of stays the pro (a) 1 Beav. 316. Mr. ceedings; but if there be a question in dispute as to the Plaintiff's right to recover certain expenses, and the Defendant does not submit thereto, the Court will not interfere summarily and stop the suit. A Defendant submitted to the claim of the Plaintiff except the costs of a distringas. The Court would not stay the proceedings till the question was agreed upon or determined. Mr. Kindersley, for the Plaintiff, opposed the application, unless the Defendant also paid the costs of a distringas, which the Plaintiff, for his protection, had placed on the fund. The MASTER of the ROLLS. Where all that the Plaintiff can recover is a certain sum of money and the costs of the suit, and the Defendant comes and offers to pay the whole demand, it is the usual practice of the Court to prevent the suit going on; but if there is a question whether the Plaintiff has or not a right to recover certain expenses incurred by him, and that is in dispute between the parties, and not submitted to by the Defendant, it must be in some way determined (a) before the Court can interfere summarily and stop the suit. (b) (a) See Van Sandau v. Moore, 1 Rup. p. 469. (b) The parties afterwards agreed on a sum to be paid in full. 1844. FIELD บ. ROBINSON, THE NICHOLSON v. NORTON. Jan. 25. sums due HE Defendant Elizabeth Elisha was entitled to a By the decree share of the estate of the testator in the in respect of which, advances had been made the executor Norton to the amount of 3177. cause, from a legatee to her by were ordered to be set off She was against her also share of the testator's estate, and her costs were ordered to be paid to her solicitor. It being found that the claims against her exceeded her portion of the estate, and the legatee being insolvent, an application was made by motion, that the costs ordered to be paid to her solicitor might be carried to the credit of her account. The Court stayed the payment of the costs for a month, in order that the matter might be set right. |