Willock (1), Whittell v. Dudin (2), and Mayer v. Townshend (3), were
the most important, though not the only cases.
To these may be
added the case of Hervey v. M'Laughlin (4), which was not cited.
There was in that case a gift of 8001. Old, and 8001. New South Sea
Annuities, upon trust to pay the interest, dividends, and produce
thereof, to Eleanor Todd, for her natural life, to her separate use;
and from and immediately after her death, the said two sums to the
three children of Eleanor Todd, "to be divided among them in equal
shares; and in case of the death of either of them, the share of
such as may die to go to, and belong to, the children or child, if but
one, of the persons so dying." There was also a general residuary
*bequest to the children of Eleanor Todd. Of the three children, one
died leaving children; the other two died without issue living at their
death; and the question arose, like that which arises here, whether,
the gift being to them and, in case of their death, to their children,
and there having been no children, the legatee should take an
absolute interest. The Barons of the Exchequer gave their opinions
seriatim. The question that was most considered was, whether the
words "in case of death" meant death in the lifetime of the testator,
or in the lifetime of the tenant for life. The learned Barons appear
to have treated it as not admitting of argument, that those parties
who had no children would take their shares absolutely, and that their
respective representatives would be entitled to it. They considered
it to be a vested interest, subject to be divested only in case there
were children to take; and they held in that case, that the executors
of those who died in the lifetime of the tenant for life were entitled
to take his or her share absolutely, and that the words "in case of
death" were not to be referred to the death of the testator. That
case coincides with the others, and in fact it more closely applies to
the present point. It accords with the conclusion to which I should.
have come. In the absence of express authority, I shall follow
that case, as well as the others, the most important of which I have
mentioned; and some of those which I have not named would be
sufficient to show, that I should be warranted in coming to that
conclusion, even if I were not bound to do so. I therefore hold
that John took an interest transmissible to his representatives.

The decision in Hervey v. M'Laughlin decides the other point also. The construction I adopt is, that John takes absolutely; but if he dies in the lifetime of the tenant for life, leaving issue at his

(1) 9 Ves. 233; see 22 R. R. 127, n.
(2) 22 R. R. 124 (2 Jac. & W. 279).

(3) 52 R. R. 180 (3 Beav. 443). (4) 16 R. R. 713 (1 Price, 264).

death, then the issue of John will take: if John died without leaving issue at his death, then, as I decided in Gray v. Garman (1), it is an absolute gift: it was liable to be divested on an event which might have happened, but did not happen, and therefore it remained absolutely. The cases collected by Mr. Jarman clearly show, that, if a legacy be given payable at the death of the testator, and, in case of the death of the legatee, to another party, there the Court will construe the gift over, in the event of death, to mean in case of death in the lifetime of the testator; and on the other hand, if the legacy is not payable immediately, but a life-interest is given, and the testator says, in the case of the death of the legatee, it is to be given to some one else, then the words "in case of death are construed to mean in the lifetime of the tenant for life; that is to say, before the money became payable. This is supported by the case of Hervey v. M'Laughlin. The only distinctions are, that I interpose the words "in case of death," for that must be the meaning of the word "or;" and in this case the first legacy is directed to be paid at the end of twelve months next after the decease of the testator. The construction of the words, when applied to different events, being, therefore, settled, I have only to construe them according to the several events to which they are to be applied. The sound construction then appears to be, that, as to the gift of the first legacy of 2,000l., the issue are to take in case of the death of the legatees, John, Thomas, and Mary, in the life of the testator; and in the other cases, it is in the event of the death of the parties during the life of the tenant for life, that the children are to take. The children who survived the tenant for life take as joint-tenants, in substitution for their parents who died in his lifetime.

MAC MAHON v. BURCHELL (2).

(2 Hare, 97–99; on appeal, 2 Ph. 127; S. C. 1 Coop. temp. Cott. 457.)

SALISBURY

v.

PETTY.

[ *93 ]

1843.

WIGRAM,

A share of rent due from the occupying tenant of certain premises to the April 20, 22. estate of a testatrix, who was one of several tenants in common of the same premises, allowed to be set off by her executors in a suit for a legacy bequeathed by the testatrix to the debtor; but not as against a legacy bequeathed by the testatrix to the wife of the debtor.

THE plaintiff, William Mac Mahon, claimed a legacy of 100l., and the plaintiff Henrietta, the wife of William, claimed a legacy of 50l. under the will of Ann Mac Mahon, who died in 1839, and they filed

(1) 62 R. R. 107 (2 Hare, 268).

(2) In re Briant (1888) 39 Ch. D. 471, 57 L. J. Ch. 953, 59 L. T. 215.

V.-C.

[97]

MAC MAHON their bill for payment. The defendants, the executors of Ann, BURCHELL. admitted assets; but insisted upon a right, of the nature of setoff, in respect of a claim which the estate of Ann, who was one of seven children and residuary legatees of Terence Mac Mahon, had against the plaintiff William, who, with his brother, Charles, was an administrator with the will annexed of the said Terence, their father. Terence Mac Mahon, who died in 1811, devised the whole of his estate amongst his seven children, as tenants in common: a part of that estate consisted of a house in the island of St. Kitts, called "The Lower House," which was occupied by the plaintiff William, his brother Charles, and his sisters Rebecca and Eliza, from time to time, for various periods, from 1815 to 1830, without paying rent. The defendants, by their answer, stated the net rent due from the plaintiff William, for the period of his occupation, to be 9281. 18. 7d., and claimed, for the estate of Ann, the testatrix, oneseventh thereof, or 132l. 11s. 8d., with interest from 1830. Letters were in evidence, by which the plaintiff William admitted that he was liable to pay some rent. [The plaintiff amended his bill (see 2 Ph. 129) and denied his liability. No answer was put in to the amended bill.]

[98]

Mr. Purvis and Mr. Bagshawe, for the plaintiffs [cited Dodd v. Lydall (1), Carr v. Taylor (2), Cherry v. Boultbee (3), Corsbie v. Free (4)].

Mr. Simpkinson and Mr. W. Hislop Clarke, for the defendants. THE VICE-CHANCELLOR :

It appears that the plaintiff William Mac Mahon has been occupying tenant of premises which formed part of the estate of Terence, the father; and that there is rent due from him, to one-seventh of which the estate of Ann, the testatrix, is entitled: the plaintiff has therefore, in his hands, monies which belong to the estate of the testatrix; and I think the Court ought not to disregard that fact, and decree the full payment of his legacy by the executors of Ann. It is not suggested that there was any joint lease of the premises to the four tenants in common, who at different times occupied the house they appear to be, at law, severally liable in respect of their occupation. I cannot, however, direct an account of what is due from the plaintiff, unless the whole of the residuary legatees are

(1) 58 R. R. 85 (1 Hare, 338).
(2) 8 R. R. 40 (10 Ves. 574).

(3) 48 R. R. 150 (4 My. & Cr. 442), (4) 54 R. R. 206 (Cr. & Ph. 64).

BURCHELL.

[ *99 ]

parties, and are bound by the account and inquiries. If the MAC MAHON residuary legatees of Terence, who are not before the Court, will appear and consent to be bound by the account, I may direct it to be taken in this suit. If anything be found due from the plaintiff William Mac Mahon as the tenant of the premises in question, that will be set off as against his legacy; but it will not form any set-off against the legacy to the plaintiff Henrietta, his wife.

[On the plaintiff's appeal, reported in 2 Ph. 127, the retainer and set-off were disallowed on the ground that the plaintiff's admission of his supposed liability for rent was a mistake of his, and that his liability had been put in issue by his amended bill, and had not been established by the defendant, nor any case made for an enquiry.-O. A. S.]

HENDERSON v. HENDERSON (1).

(3 Hare, 100—121.)

The next of kin of an intestate filed their bill in equity in the Supreme Court of Newfoundland, against A., the brother and deceased partner of the intestate, for an account of the estate of the father of A., and of the intestate, possessed by A., and an account of the partnership transactions, and the dealings of A. with the estate since the death of the intestate. The bill was taken, pro confesso, against A. in the Colonial Court, and, on a reference, the Master reported that certain sums were due to the several next of kin on the account of the estate of the intestate's father possessed by A.; but that no account between A. and the intestate had been laid before him: the Supreme Court decreed that the sums found by the Master to be due to the next of kin and the costs should be paid to them by A. The next of kin brought their actions in this country against A. upon the decree. A. then filed his bill in this Court against the next of kin and personal representative of the intestate, stating that the intestate's estate was indebted to him on the partnership accounts, and on private transactions; alleging various errors and irregularities in the proceedings in the Supreme Court, and that A. intended to appeal therefrom to the Privy Council; and praying that the estate of the intestate might be administered, the partnership accounts taken, the amount of the debt due to A. ascertained and paid, and the next of kin restrained by injunction from proceeding in their actions.

Demurrer, for want of equity, allowed on the ground that the whole
of the matters were in question between the parties, and might properly
have been the subject of adjudication in the suit before the Supreme Court
of Newfoundland.

That, inasmuch as the Queen in Council is the Court of Appeal from the
Colonial Court, and has jurisdiction to stay the execution of the decree

(1) Mutrie v. Binnie (1887) 35 Ch. D. 614, 56 L. T. 455; Nouvion v. Freeman, In re Henderson (1889) 15 App. Cas. 1; Worman v. Worman (1889) 43 Ch, D,

296, 61 L. T. 637; Pemberton v. Hughes
[1899] 1 Ch. 781, 786, 68 L. J. Ch.
281, 80 L. T. 369, C. A.

1843. July 4, 7, 11, 20.

WIGRAM,
V.-C.

[100]

pending the appeal, the Court will not interfere by injunction, on the ground of error or irregularity in the decree of the Colonial Court.

Whether, in a case of error shown in the judgment of the Court of a foreign country, from which there was no appeal to any of her Majesty's Courts, the decision would be the same-quare?

THE bill was filed in May, 1843, by Bethel Henderson against Elizabeth Henderson, the widow of Jordan Henderson, his deceased brother, and Charles Simms and Joanna, his wife, who was the daughter of Jordan; and also against J. Gadsden, the administrator of the estate of Jordan, in England; and it stated that William Henderson, a merchant in Bristol and Newfoundland, the father of the plaintiff and Jordan Henderson, in 1808, admitted them into partnership with him, and in 1817 resigned all his interest in the trade to them: that the plaintiff and Jordan carried on the business in partnership from 1817: that the share or interest in the partnership, which their father gave up to them, was worth 15,000l., or thereabouts, and was continued in, and formed part of, the partnership of the plaintiff and Jordan: that Jordan Henderson died in March, 1830, intestate, *leaving the defendants, Elizabeth, his widow, Joanna, (the wife of the defendant C. Simms), his daughter, and also leaving William, a son: that Elizabeth, the widow, obtained letters of administration of the estate of Jordan, in Newfoundland, and, together with the plaintiff, carried on the partnership business for the purpose of winding it up; but before that was done, a fire in the island, in August, 1832, destroyed the buildings and plant of the partnership, and all the books, except the ledgers; and that disputes then arose between the plaintiff and Elizabeth, the widow.

The bill then set forth a petition presented in November, 1832, by the defendants, the widow and children of Jordan, to the Judges of the Supreme Court in Newfoundland, which alleged that William, the father, before his death, gave or bequeathed 1,000l. to or for the petitioner, Joanna, and gave or bequeathed the rest of his estate between Bethel, the plaintiff, and Jordan, his sons, equally : that Bethel was living with William, the father, at Bristol, and possessed himself of his estate: that Jordan died possessed of considerable real and personal estate in the partnership, both in England and Newfoundland: that Bethel had possessed himself of all such estate, as well as of the partnership books, and carried on trade therewith, and had drawn monies thereout: that he also refused to satisfy the petitioners whether Jordan had left any will; and prayed that Bethel might be decreed by the Supreme Court to come to an account in respect of all and singular the premises; and