HARE, 3 HARE what the issue might be. It was true, that, until the answer was put in, the issue was not raised upon the pleadings; but in this case the whole question had been fully brought before the Court upon the affidavits, and had been amply discussed, so that the points in dispute were sufficiently and distinctly raised : he therefore saw no objection, either in point of form or substance, to directing an issue. With respect to the remedy given by the Act, which, it had been contended, was the measure of the legal right, it appeared to him, that, if it was admitted to be a case in which the plaintiff might recover penalties de die in diem, it was a case in which this Court would protect his right by injunction. The question of right might be tried by an issue to this effect: whether, in contravention of the Act, A. B. (an individual person) had carried passengers from and to the particular points referred to; the defendants admitting, upon the trial, that they had carried such passengers at certain times, and that the act of the Railway Company was the act of A. B. Let the parties proceed to a trial at law, at the next Assizes for the county of Norfolk, by a special jury of the county, on the following issue; viz. whether the Yarmouth and Norwich Railway Company have, in any manner, conveyed any passengers in contravention of the Act of Parliament of the 7 & 8 Geo. IV., intituled, &c. (1). And the defendants are to admit, that they did, on the 4th of May, 1844, convey passengers, from the dock or basin cut by the Company near or adjoining to the present Yarmouth terminus of the railway, to the Buck Quay in Great Yarmouth, and vice versâ, and are not to raise any objection on the ground of their being a corporation, and not an individual or company of individuals. And, in such issue, the plaintiff here is to be plaintiff at law, and the defendants here, defendants at law, who are forthwith &c. The Master to settle such issue, in case &c. And at the trial, &c., any special matter to be indorsed on the postea. Usual direction. as to books and papers. And let this motion stand over until after the trial of the issue. And the defendants are, in the meantime, to keep an account of all and every the passengers, carriages, horses, and cattle which may be in the meantime conveyed by the defendants, their servants or agents, in any steam-boat or other boat in respect of which the plaintiff is or would be entitled to any payment or toll if the same passengers, carriages, horses, and cattle (1) Ante, p. 436, n. CORY had respectively passed over the bridge, and, at the plaintiff's request, are to furnish him with a copy of such account before the said trial, to be verified by the affidavit of the secretary of the said RAILWAY CO. Company. Liberty to apply. 1844. May 1, 3. WIGRAM, HINVES v. HINVES (1). (3 Hare, 609-614.) Residuary gift of the whole income of the testator's property (which included leaseholds and Long Annuities) to his wife, for her life, at her own disposal, but not to sell without the consent of all parties; remainder to the brothers of the testator equally: Held, that, construing the gift with reference to the other provisions of the will, the widow was entitled to the income of the property for her life, in the state of investment in which it was left by the testator. Semble, in the application of the rule for converting into permanent investments, at the death of the testator, perishable property in which he has given interests for life, and other interests in succession, the inclination of the Court in the later cases, when the meaning was doubtful, has been in favour of that construction which would give to the tenant for life the enjoyment of the property in specie. THE question arose on the will of W. Hinves, dated in 1814, which was as follows: "I will and bequeath to my lawful wife Sarah Hinves, and my brother George, and my brother Nathaniel, and John Hill to be my lawful executors to dispose of my property in the manner and form hereinafter mentioned, after all just debts and funeral expenses are paid, viz. to my wife Sarah Hinves, the hole income of my property of all descriptions whatsoever, for her natural life (2), at her own disposal, but not to sell witt (3) the hole consent of all parties; and at my decease I leave for her own sole benefit, all my household furniture, wearing-apparel, plate, linen, and 5001. in lawful money, for her own benefit, to be paid out of my stock and book debts, and the residue of monies out of my book debts, stock, &c., and, if out of business at my decease, she is to have 5007. made up, if there should not be good debts or cash in hand at that time; I also leave at her own disposal, at her decease, all monies her brother William Banister be in debt to me at my decease; and the residue of my estates or property whatsoever I leave equally to my five brothers, for their natural lives," (naming (1) Macdonald v. Irvine (1878) S (2) The words " and at her decease" had then followed, but were erased. (3) Illegible, but resembling either "with" or "without." them). "I mean the same benefit to each brother's wife, and if no issue, for the income of that part of the property to be divided amongst the survivors for their natural lives; but if any *children, then the benefit or share of the deceased to be equally divided amongst their children born in lawful wedlock; and if any one of them should be dead, the said child's part to be divided amongst his or her children's children if any then living. Legacies to be paid within three months after my decease." The testator then bequeathed several legacies, and, among others, 1007. 31. per cent. Stock, to be "bought in " within three months after the decease of his wife, to the minister of a certain meetinghouse, and added, "I also leave to my wife Sarah Hinves all the benefit of the houses in Gravesend at her own disposal after my decease." The testator died in 1832. The widow died in 1840. The bill was filed by the children of some of the brothers of the testator against the representatives of the widow and the other parties interested. The only point which probably may be applicable to any other case was the question, whether the widow was entitled to the specific enjoyment of the property, consisting in great part of leasehold tenements, and some Long Annuities, during her life, or whether the parties in remainder were entitled to require that it should be sold and converted into a permanent investment in her lifetime. Mr. Russell and Mr. Goodeve, for the plaintiffs. Mr. Cooper, Mr. Kenyon Parker, Mr. Teed, Mr. Romilly, Mr. Bacon, Mr. Stinton, Mr. Campbell, Mr. Willcock, and Mr. Whitbread, for the other parties. THE VICE-CHANCELLOR: I take the result of the rule laid down by Lord ELDON in Howe v. Lord Dartmouth (1), and by Lord COTTENHAM in Pickering v. Pickering (2), to be, that, where personal estate is given in terms amounting to a general residuary bequest, to be enjoyed by persons in succession, the interpretation the Court puts upon the bequest is, that the persons indicated are to enjoy the same thing in succession; and, in order to effectuate that intention, the Court, as a general rule, converts into permanent investments so much of the personalty as is of a wasting or perishable nature at the death of the testator, (1) 6 R. R. 96 (7 Ves. 138). (2) 48 R. R. 104 (4 My. & Cr. 289). HINVES 2. HINVES. [ *610 ] [611] HINVES t. HINVES. [*612] and also reversionary interests. The rule did not originally ascribe to testators the intention to effect such conversions, except in so far as a testator may be supposed to intend that which the law will do; but the Court, finding the intention of the testator to be that the objects of his bounty shall take successive interests in one and the same thing, converts the property, as the only means of giving effect to that intention. But, if the will expresses an intention that the property as it existed at the death of the testator shall be enjoyed in specie, although the property be not, in a technical sense, specifically bequeathed, to such a case the rule does not apply. The rule is settled with sufficient clearness; the difficulty arises only in its application to particular cases, where the intention of the testator is expressed with more or less distinctness. It certainly has always appeared to me, that, in the more modern cases, (unless, perhaps, the decisions of the VICE-CHANCELLOR OF ENGLAND in Mills v. Mills (1) and Benn v. Dixon (2) must be excepted), the Court, in applying the rule, has leant against conversion as strongly as is consistent with the supposition that the rule itself is well founded. In Howe v. Lord Dartmouth, Lord ELDON appears to have considered that the disposition of the personal estate in the same clause with land or other imperishable property is not material; and the cases of Mills v. Mills and Benn v. Dixon apparently evince the same opinion. But in Bethune v. Kennedy (3), at the Rolls, Lord COTTENHAM appears to have thought that circumstance, unexplained, might alone be sufficient to exclude conversion. The words of the bequest there used by the testatrix were "all I do or may possess in the funds, copy or leasehold estates." In Alcock v. Sloper (4), the testator gave the rest, residue, and remainder of his estate and effects, real and personal, to his executors, upon trust to permit his wife to receive the rents, profits, dividends, and annual produce for her life, and, immediately after her death, upon trust to sell his freehold house and his leasehold houses by auction; and directed a Mr. Abbott to be employed as auctioneer, to convert the whole of his estate and effects into money, and to distribute it as directed in the will. Now, under the will, it is clear that money in the funds acquired after the date of the will would have passed; yet Sir J. LEACH said, the word "dividends " had reference to Long Annuities, of which part of the testator's estate consisted, and that the use of (1) 40 R. R. 176 (7 Sim. 501). (3) 43 R. R. 153 (1 My. & Cr. 114). (4) 39 R. B. 334 (2 My. & K. 699). the word "dividends" was equivalent to a direction that the widow should enjoy the Long Annuities in specie. He thought, also, that the direction that the leaseholds should be sold after the wife's death evinced an intention that the other perishable property should not be converted at the testator's death; and, further, that the direction that Abbott should be employed, after the wife's death, to convert the whole of his estate and effects into money, for the purpose of distribution, excluded the notion that any part of it should be sold at the testator's death. It is obvious, that, upon the language of the will, a Judge disposed to apply the reasoning afterwards adopted in Mills v. Mills might have found very pertinent arguments in support of a different decision. In Collins v. Collins (1), stress appears to have been laid upon the direction to divide the testator's property amongst particular persons at his death. I cannot but regard that case, which has been since approved by Lord COTTENHAM (2), as evidencing the present leaning of the Courts, to which I have already alluded; for the direction to divide was as applicable to the property in a converted as in an unconverted state. In Bethune v. Kennedy the gift was to the sisters of the testatrix during their lives, and at the decease of both to be equally divided between her cousins named, share and share alike. In Goodenough v. Tremamondo (3), Lord LANGDALE held the word "rents," in the gift of the residue for life, to be conclusive that the leaseholds were not to be converted. In Daniel v. Warren (4), the decision goes perhaps further than any of the cases I have cited, and in the same direction. In the present case, the gift is of the testator's " property " generally; there is no specification of particulars; and the property described in this general way is to go to persons in succession. Stopping here, there is no doubt that the rule of the Court would require conversion; and the inquiry must be, whether, in the directions he has given for the enjoyment of his property by the cestui que trusts, or in the management of it by his trustees, there is anything which a conversion at his death would defeat. It is, therefore, necessary to examine minutely and deal critically with the language of this will. (His Honour then referred to the several clauses of the will-the appointment of executors; the direction "not to sell witt," which (1) 39 R. R. 337 (2 My. & K. 703). (2) 48 R. R. at p. 111 (see 4 My. & Cr. 300). (3) 50 R. R. 262 (2 Beav. 512). 290). HINVES v. HINVES. [ *613 ] [ *614 ] R.R. VOL. LXIV. 29 |