under the devise in trust for the plaintiff and her issue, or whether the same formed part of the testator's personal estate. Mr. Jessel and Mr. C. T. Simpson, for the plaintiff, said that the true position of the testator with respect to the houses at the date of his death was that at law, in consequence of the merger of the term in the reversion, he was entitled to them in fee simple in possession; but that in equity he would have been liable to grant a new lease of them to the mortgagor upon repayment of the mortgage debt. The testator was therefore owner in fee of the houses, subject to an option on the part of another person to call for a lease of them. There could, therefore, be no doubt that the whole of his interest would pass under the devise. If a person had a leasehold interest and a freehold interest in the same house, a gift of the house by such terms as those used here would be a gift of the whole house. They cited Woodhouse v. Meredith, 1 Mer. 450; Emuss v. Smith, 2 De Gex & S. 722. defendants interested in the testator's personal estate. The testator gave his freehold houses, that is to say, he gave what was really his freehold interest in them, namely, the reversion in fee expectant on a lease of which he was the mortgagee in possession. The fact that the mortgage was by assignment, and not by deposit or under-lease, could make no difference in this Court; and had it been by deposit or under-lease the present question would never have arisen. The intention of the parties on the occasion of the mortgage was shewn by the fact that the mortgagor was to go on keeping the covenants in the lease. The will contained an express devise of mortgage estates; and it was perfectly obvious, on the face of the will, that in making this devise, the testator was thinking only of the houses, and not of what was due on the houses. It was not as if the testator had a leasehold interest in the property; he had merely a charge on a leasehold interest. In Woodhouse V. Meredith (supra), the devise was of the testator's leasehold messuages in Kensington, and the testator had no other property in Kensington than a mortgage of certain leasehold messuages situated there. Consequently, in that case there was nothing upon which the devise could operate except the mortgage property. In Drant v. Vause (supra) and Emuss v. Smith (supra) the testator devised “land,” and a third person had an option to convert the land into money, and all that those decisions went to was that the intention of the testator to benefit the devisee was not to be defeated on account of the exercise of this option by a third party. The case of Moor v. Raisbeck, 12 Sim. 123, was much more like this case than any that had been cited. They referred also to Elliott v. Fisher, 12 Sim. 505. Mr. Everitt appeared for the trustees and the infant defendants, who were in the same interest as the plaintiff. Mr. C. T. Simpson in reply.-As to Moor v. Raisbeck (supra), the ground of the decision in that case was that notwithstanding the Wills Act, the will in question was revoked by the subsequent sale of the property. In Woodhouse v. Meredith (supra) there was, as here, an express devise of mortgage estates. THE MASTER OF THE ROLLS (on March 13) said, that in consequence of the mortgage of the lease having been made by way of assignment to the testator, the owner of the reversion in fee, the term had at law merged in his reversion, and at law he was the owner in fee simple in possession. But this was not so in equity; and in equity it would be held that the devise did not carry the mortgage debt. In equity the case must be regarded as if there was no merger of the term. It had been correctly said that a devise of Whiteacre would carry all the testator's interest in Whiteacre. But all these questions were questions merely of intention, and the intention must be discovered from the will itself. Suppose this case were to occur:-The owner of Whiteacre, subject to a farming lease to A, lends A a sum of money upon the mere deposit of the farming lease, and devises Whiteacre to B. Surely B would not take the money secured on the deposit of the lease. It could make no difference whether the money was secured on a deposit of the lease or by means of an assignment thereof. The intention would be just the same. In the present case, the 500l. was money which had been lent by the testator on the security of another person's interest in the houses. That sum could not be carried by a devise of the testator's interest in the houses. The leasehold interest continued to be the property of the mortgagor, not of the testator; and it was not as if the latter had bought it out and out and then taken an assignment of it. The cases which had been cited were not of much assistance. In-Woodhouse v. Meredith (supra) the premises in mortgage were held to pass, simply because there was nothing else to which the devise could apply; and Emuss v. Smith (supra) and Drant v. Vause (supra) were cases where the devise was held effectual although the property had been converted into personalty, and they were decided on the ground that the conversion did not alter the intention of the respective traversing the fact of the plaintiff's heirship, and put in an answer to a part of the discovery sought by the bill, merely stating their inability to set forth whether the plaintiff had descended from a certain ancestor of the person whose heir he claimed to be:-Held that, notwithstanding the plea, the plaintiff was entitled to have the usual affidavit as to documents made by the defendants. This was a summons taken out by the plaintiff for the production of documents. The suit was instituted in aid of proceedings at law, which had been taken by the plaintiff for the recovery of certain real estates, to which he claimed to be entitled as the heir of one Ann Fawcett, deceased, and for the purpose of securing and protecting the rents and profits of the same estates. The bill alleged that Ann Fawcett was, at her death, seized of certain freehold and copyhold estates, and equitably entitled to certain other freehold estates in Yorkshire; that Ann Fawcett acquired some part of the freehold and copyhold estates by descent from her maternal grandmother, Sarah Fawcett (formerly Sarah Kettlewell, spinster); that the last purchaser of the estates was an ancestor of Sarah Fawcett, ex parte materna, and that the plaintiff was the heir-at-law of such ancestor and of the said Ann Fawcett, ex parte materna. The bill further alleged that the said Ann Fawcett was, at her death, equitably entitled in fee to certain freehold and copyhold estates, whereof the legal estate had been vested in trustees, under a settlement executed subsequently to the marriage of her father and mother, and that Ann Fawcett died intestate and unmarried in the year 1856, leaving the plaintiff her heir at law, both ex parte paterna and ex parte materna, and also her customary heir. The bill then alleged that the defendants had laid claim to be entitled to and taken possession of all the said real estates, and had entered into receipt of the rents and profits thereof; that the said estates were of very considerable value, and situated in different parishes, and were purchased by and conveyed to the ancestors of Ann Fawcett, at different times and by different deeds, and that the defendants had got possession of all the title deeds thereto, including the said settlement, and refused to produce them to the plaintiff, and that colluding with the present trustee of the settlement, they had obained a conveyance to themselves of the legal estate of some of the hereditaments comprised therein, and had precluded the plaintiff from trying at law his title thereto. The plaintiff stated that he had commenced actions of ejectment against the defendants and some other persons, to obtain possession of some portion of the estates, and such actions were still pending; but, by reason of the detention by the defendants of the said settlement and other title deeds, and such fraudulent conveyance as aforesaid, he was unable safely to go to the trial of the said actions; and the bill charged that the defendants ought to be ordered to discover and produce to the plaintiff the said settlement and other title deeds of the said estates. The prayer of the bill was (amongst other things) for discovery of all the deeds and documents in the custody, possession, or power of the defendants, relating to the estates of or to which Ann Fawcett was seized or entitled at her death, and that the same deeds and documents might be brought into Court, and used by the plaintiff in his actions; that the defendants might discover in whom the estates comprised in the said settlement were now vested; for delivery of the title deeds to the plaintiff when he should have established his claim; and for an account, and the appointment of a receiver of the rents and profits. Two of the defendants, Benson Barstow and J. M. Barstow, filed pleas to several parts of the said bill, “which several parts so pleaded made up together a plea to the whole of the relief sought by the said bill, and to the whole of the discovery sought by the bill, except a certain portion of such discovery; and they put in an answer "to so much of the said bill as sought discovery not covered by the said pleas." By their plea, the said defendants traversed the fact that the plaintiff was the heir at law of the said Ann Fawcett, either ex parte paterna or ex parte materna, or that he was her customary heir, or that he was the heir at law, ea parte materna, of any ancestor of the said Sarah Fawcett, who was the last purchaser of any hereditaments, of or to which the said Ann Fawcett died seized, or entitled by descent. By their answer to so much of the bill as sought discovery as to the matters excepted from their pleas, the said defendants denied their ability to set forth whether Sarah Fawcett was or not before her marriage Sarah Kettlewell, and whether the plaintiff was or not lineally descended from the great grandfather of the said Ann Fawcett. The other defendant, William Fawcett, neither pleaded nor answered. Mr. Kay and Mr. Cottrell, for the plaintiff.-Upon our summons for the production of documents, we are entitled to have from the defendant the usual affidavit of all the documents in his possession or power relating to the matters in issue Rumbold v. Forteath, 3 Kay & J. 44; Gresley v. Mousley, 2 Kay & J. 288, 292. Mr. Eddis and Mr. Russell Roberts, for the defendants, B. and J. M. Barstow.The plaintiff had filed replication to the plea, therefore it must be taken to be good in form and substance. The defendants were, they admitted, to the extent to which they were bound to give the plaintiff discovery, bound also to make an affidavit as to the documents in their possession, but their liability did not extend further than that. Therefore the affidavit should extend only to that part of the bill which they had answered; and the plaintiff having admitted that the answer was sufficient, was not entitled to any discovery beyond the limits of the answer, and the defendants were protected from general discovery as to the subject of the suit Mitford's Plead. [230] 5th ed. 269, 270; Thring v. Edgar, 2 Sim. & S. 274; Sanders v. King, 2 Sim. & S. 277; s. c. 6 Madd. 61; Parkinson v. Chambers, 1 Kay & J. 72; s. c. 24 Law J. Rep. (N.S.) Chanc. 47; Princess of Wales v. Lord Liverpool, 1 Swanst. 114; Wigram on Discovery, 138. In Rumbold v. Forteath (supra) the defendeant did not deny that plaintiff was heir, and on all the other issues the plaintiff was entitled to have production of docu ments. Mr. Amphlett and Mr. Russell Roberts, for the other defendant, P. W. Fawcett. BACON, V.C., said-The statute (15 & 16 Vict. c. 86. sec. 18) is quite plain. The plaintiff applies in the usual way for the production of documents. There is no restriction of his right to be found, either in the statute or in the authorities. The affidavit must be made in the usual terms, according to the statute, including all the documents, though the plaintiff may not be entitled to see them all. The plaintiff has a right to know all the evidence which the defendants have in their possession. There is no possibility of any harm arising from an order being made in the terms asked by the summons. The defendants must pay the costs of the summons being adjourned into Court. "in case of the death of either of my sisters before me, or before marrying and having children, the whole of the property to go to the survivor":-Held, affirming the decision of MALINS, V.C., that the younger sister who after the testator's death attained 25, but had not married and had children, took, at 25, an absolute and indefeasible interest in her share. This was an appeal from a decision of Vice Chancellor Malins on the construction of the will of William Clark. A full report of the will and of the facts of the case is to be found ante, p. 151. Mr. Cole and Mr. Bovill were for the appellant. Mr. Glasse and Mr. Grenside, for the respondent, were not called upon. LORD JUSTICE JAMES.-This is a will in the construing of which no precedent is of any use, and which will itself be a precedent for no other will. The Court is asked by the appellant to say that the younger sister is not to have that, which the testator has in words, plainly if somewhat ungrammatically, said she is to have. The words " or before marrying," etc., must be construed with regard to the previous words which give the younger sister absolute control over her share on attaining twenty-five. It is plain that the contingency which the testator contemplated was to happen before his own death. It follows that if the word "or" in the gift is read “and," the whole difficulty is cleared up; and that therefore the younger sister on surviving the testator and attaining twenty-five years of age, took an absolute indefeasible interest in her share. The decision of the Vice Chancellor was quite right, and the appeal must be dismissed. LORD JUSTICE MELLISH.-I am of the same opinion. If the construction for which the appellant contends is placed on the gift over, it entirely destroys the first part of the will which gives immediate control on attaining twenty-five. Solicitors Mr. J. B. Marsden and Messrs. Spyer & Son, for appellants; Messrs. Durnford & Co., for respondent. 3 C This was a suit to administer the estate of a testator, who had, by his will, appointed James Battison, Joseph Buckton, and William Hobson, his trustees, and the same three persons, together with Mary Hobson, his executors. Mary Hobson and William Hobson were also beneficiaries under the will, and accordingly Battison and Buckton were plaintiff's, and Mary Hobson and William Hobson defendants, in this suit. A decree was made in the suit, directing certain accounts and enquiries, and after an order on further consideration whereby certain of the accounts were directed to be continued, Mary Hobson died. By her will she appointed Battison and Buckton her exccutors. Buckton rcnounced probate, and Battison alone proved the will. Mr. Dunning now moved on behalf of the plaintiff, Buckton, for an order to revive as against his co-plaintiff, Battison, in his character of executor of the deceased defendant, Mary Hobson; and that the accounts directed by the decree might be carried on between the plaintiff, Buckton, and Battison as such executor, in the same manner as the same might have been carried on and prosecuted as between the plaintiffs and the defendant, Mary Hobson, in case she had not died. He cited Foster v. Bonner, 33 Law J. Rep. (N.S.) Chanc. 384, in which case, under similar circumstances, an order identical in terms to that now sought had been made by Vice Chancellor Kindersley. Mr. Martineau, for Battison, who alone had been served with the notice of motion. STUART, V.C., after saying that he should have thought the proper course would have been to make a simple order that the plaintiff, Battison, should represent the estate of the deceased defendant, upon the authority of Foster v. Bonner (ubi supra), made an order in the terms of the application. The following was the order made :Upon motion, &c., order that this suit do stand revived at the suit of the plaintiff, Joseph Buckton, against the said James Battison, as the legal personal representative of the said Mary Hobson, deceased. And it is ordered that the said decree, dated the 19th day of December, 1866, and the accounts and enquiries thereby directed, be carried on and prosecuted between the said plaintiff, Joseph Buckton, and the said James Battison, in the same manner as they might have been against the said defendant, Mary Hobson, if she had not died." Specific Performance-Absconding Defendant-Practice-Procedure - Vesting Order. Where the defendant to a bill for specific performance cannot be found, the plaintiff, after entering an appearance and filing replication, may, by advertisement in the "London Gazette," give him notice of a subpoena to hear judgment, and if he fail to appear, the Court at the hearing will, on proof of the case made by the bill, make a decree and an order vesting the estate in the plaintiff. The defendant, Mrs. Vincent, having agreed to assign to the plaintiff, by way of legal mortgage, the lease of a certain |