did not of itself create an incumbrance upon that property. It merely gave notice of a claim on the property; and it was incumbent on the person thus affected with notice to look into the nature of the claim, and judge for himself whether there was anything in t. Great inconvenience would follow from holding that every lis pendens (however frivolous the plaintiff's claim) created an incumbrance. Then, was the objection, founded on the claim of the plaintiff, in Pratt v. Bull a frivolous one? On this point, his Honour thought the case of Pyrke v. Waddingham had been pressed too far. No doubt it was difficult to draw the line between a well-founded and an ill-founded objection to title; but here the opinion of eminent counsel, with which the defendant had been furnished, had been adverse to Mr. Pratt's contention from the first; and, in his Honour's judgment, it was clear that the Court of Probate, which was not in existence at the date of the 1 & 2 Vict. c. 110, could not be prospectively included in the provision which made orders of the Superior Courts a charge on the land. Nor was there any provision of the kind in the Act which created the Probate Court. His Honour was, therefore, of opinion, that the defendant had no good ground for resisting completion; and, as the defendant's conduct rendered the suit still necessary, notwithstanding that the case of Pratt v. Bull had been decided some months ago, he must decree specific performance against the defendant, with costs up to and including the hearing. widow. The codicil which substituted the 40001. for the 60007., did not repeat or contain any reference to this power : Held, that the power must be deemed to be revoked, and that consequently the widow was not entitled to | have the income of bank shares of the value of 60001., belonging to the testator at the time of his death, and yielding a large rate of interest, specifically appropriated for her benefit. This was a suit by the executors of one George Hammond for the administration of their testator's estate. The will was dated the 12th of February, 1849, and after making various specific devises and bequests, contained the following words :-“ Also I give and bequeath unto my friends, Benjamin Stocks, John Croisdale, and William Roebuck, the sum of 60007., upon the trusts and for the intents and purposes hereinafter expressed and declared concerning the same (that is to say), upon trust to lay out and invest the same in their names in the public stocks or funds of Great Britain, or on real security, including mortgages of copyhold and leasehold estates in England or Wales, or on railway debentures, or in the purchase of shares in some good and established railway, gas, water, or other similar company, with power, nevertheless, to appropriate and hold any railway or other investments, for the said sum of 6000l., or any part thereof, which I may have at the time of my decease, with power also for my trustees or trustee for the time being to change the Note."-The case of Pratt v. Bull is reported (on investments or securities for others of a like descripthe appeal) 1 N. R. 298. A testator, by will, bequeathed the sum of 6000l. to trustees upon trust to pay the income to his widow for life, for the maintenance of herself and two infant children; and, after her death, he gave the corpus to the children on their attaining twenty-one. One of the children having died in the testator's lifetime, he made a codicil to his will, by which, after reciting the gift of 6000l. to have been intended as a provision for his widow, and to enable her to support the infants, he revoked "the said legacy," and bequeathed to his trustees the sum of 40001., the income of which he directed to be paid to his wife for the support of herself and the surviving infant child : Held, that the revocation by the codicil of the 6000l., given by the will, was confined to the income of the widow, and that the gift of the corpus of the 60001. was not affected by the codicil. The will also contained a power to the executors to make a specific appropriation of any investments of the testator to the extent of 60001., for the purpose of answering the annuity given to the tion as often as it shall be deemed expedient so to do, and to pay the dividend or interest from time to time to arise therefrom unto my wife Christiana, for the maintenance of herself, and for the maintenance, education, clothing, and bringing up of my sons Alfred and Joseph until they shall severally attain the age of twenty-one years. And in case my said wife shall die before my said sons Alfred and Joseph shall attain their respective ages of twenty-one years, then I direct my trustees or trustee for the time being to apply such part of the dividends or interest of the said sum of 60007. as they or he in their or his discretion shall. think proper in the maintenance, education, clothing, and bringing up of my said sons Alfred and Joseph until they severally attain that age. And when and so soon as my said sons Alfred and Joseph shall severally attain the age of twenty-one years, upon trust that my trustees or trustee for the time being shall and do pay out of the dividends or interest of the said sum of 60007., from time to time to arise therefrom, the sum of 150l. a year only to my said wife Christiana in lieu of the whole of the dividends or interest of the sum of 60007. for her own maintenance and support during the remainder of her life for her separate use, and, subject to the last-mentioned annuity of 150l., upon trust to pay, transfer, and divide the said sum of 60007., and all accumulations thereon, unto and equally between my said sons Alfred and Joseph, share and share alike, their respective executors, administrators, or assigns, as tenants in common. And in case my said sons Alfred and Joseph, or either of them, shall die under the age of twentyone years without issue, then I give and bequeath the said last-mentioned legacy or share of them or him so dying unto and equally amongst my surviving children then living, and who may be then in England, share and share alike, their respective executors, administrators, or assigns, as tenants in common. And I declare that during the minority of my said sons Alfred and Joseph, or either of them, it shall be lawful for my trustees or trustee for the time being to apply (subject as aforesaid), as well the surplus, dividends, or interest of the said sum of 6000l., as also any part of the said principal sum of 60001. not exceeding a fifth part thereof, as the said trustees or trustee shall think proper, in, for, or towards their, or either of their advancement or preferment in the world or otherwise for their or his benefit, as the said trustees or trustee shall think fit." The testator made a codicil to his will, dated the 10th of December, 1851, which, so far as is material, was as follows :- "Whereas I have given the sum of 60007. to be put out at interest by my trustees to provide an annuity for my dear wife Christiana, and to enable her to support and educate my two sons Alfred and Joseph Hammond. And whereas my son Alfred has departed this life, I do hereby revoke the said legacy, and do appoint and bequeath to my trustees the sum of 4000l. to be invested, and the interest arising therefrom to be paid to my said dear wife Christiana for her maintenance and the support of my son Joseph Hammond. And I do hereby ratify and confirm my said will in all the particulars thereof." The testator died on the 17th of June, 1852, and both the will and the codicil were duly proved by the plaintiffs. The codicil was attested by three witnesses, one of whom was the testator's son, Joseph Hammond, who was then about twelve years of age, and was the third witness in order of attestation. The plaintiffs, as the executors of the testator, converted into money the whole of the testator's personal estate not specifically bequeathed, with the exception of 200 shares in the Leeds Banking Company, which at the death of the testator were of the market value of 217. 10s. per share, and were now worth 387. per share, yielding a high rate of interest. No appropriation of any specific portion of the testator's estate was made by the executors to answer the legacy of 60007. bequeathed by the will, or the legacy of 40007. bequeathed by the codicil, but out of the income of the testator's estate they paid to the testator's widow 2001. a year, being at the rate of 51. per cent. on 40007., down to the time when Joseph attained twenty-one, when they reduced the widow's income to 1507. will was wholly or only partially revoked by the codicil, and if wholly revoked, whether the legacy of 40007. given by the codicil was to be applied as the trusts declared by the will of 60007., or upon what trusts? 2nd. Whether the plaintiffs could now appropriate the number of bank shares which at their marketable value at the death of the testator would have been worth 40007. to answer the legacy of 40007. given by the codicil? Martindale, for the plaintiffs, the executors, submitted these questions to the Court. C. Hall (Selwyn, Q.C., with him) for the defendant, Joseph Hammond. 1st. The codicil did not disturb the dispositions of the will, further than was absolutely necessary to give effect to the former, Doe d. Hearle v. Hicks, 8 Bing. 475; on appeal, 1 Cl. & F. 20; Abbott v. Middleton, 21 Beav. 143; 7 H. of L. 2nd. If the substitution made by the codicil was rendered ineffectual, so far as related to Joseph's share, by reason of his being an attesting witness, then, to that extent, the will was not revoked by the codicil, Onions v. Tyrer, 1 P. Wms. 342. Karslake, for the widow of the testator. Freeling, for another of the testator's children. The revocation of the will by the codicil is only partial, leaving the bequest of the corpus of 60001. unimpaired, Alt v. Gregory, 8 De G. M. & G. 221. Baggallay, Q.C., and Wickens, for parties interested in the residue. The revocation of the gift of 60007., was complete in all respects, and the testator never intended to set apart two distinct sums-viz., 40007. to answer the present income of the widow, and 6000l. to answer the future capital of the children. Southgate, Q.C., and F. O. Haynes, for other parties. THE MASTER OF THE ROLLS, said, the first duty of the Court in a case of this kind was to reconcile the will and the codicil, and to make every part efficacious, so as to carry all the testator's provisions into effect. If the codicil revoked the legacy of 60007. in all respects, then the joint effect of the will and codicil would be, that Joseph would take nothing beyond what was given him for maintenance. But the codicil, after revoking the legacy of 60007., and bequeathing, instead thereof, 4000l. for the maintenance of the widow and Joseph, went on to "ratify and confirm The questions which arose were mainly two. the will in other particulars." The substitution 1st. Whether the legacy of 60007. given by the made by the codicil was, therefore, in his Honour's judgment, confined to the income of the widow and the naintenance of Joseph during his minority. In that case, the disposition of the corpus of the 60001. contained in the will remained unaffected by the codil. No doubt it was inconvenient that there should be two distinct gifts of 6000l. and 40007., but this did not raise any insuperable difficulty. The revocation by the codicil was partial only; and under the codicil Joseph did not take anything. In this view, there was no impropriety in his being an attesting witness to the codicil. Another question arose as to the power to appropriate the bank shares. The will clearly permitted the executors to hold and appropriate 60007. of these shares, calculated at their market value when the testator died, and to pay the income to her for her life. But the codicil, which revoked the legacy of 60007., so far as regarded the widow's interest therein, did not repeat, or in any way incorporate, this power of appropriation. The testamentary instruments were clearly inartificially drawn, but his Honour must hold, with reluctance, that the power of appropriation was revoked, and that the widow was only entitled to so much income as would be produced by 41. per cent. interest on the 40007. given her by the codicil. Kindersley, V.-C. 2, 3 JUNE, 1863. } RANDFIELD v. RANDFIELD. Costs-Personalty-Will-Attestation-7 Will. 4 & 1 Vict. c. 26, s. 15. Costs incurred in a suit to determine the rights of parties to real and personal estate, are primarily payable out of the personalty. A testator executed his will duly attested, but being dissatisfied with the attestation, added a further attestation clause, which was signed by the same witnesses, and by a devisee under the will: Held, That the devisee was, under the 15th section of the Wills Act, precluded from taking any interest under the will. William Randfield, by his will, dated 18th of October, 1855, left all his real and personal property (subject | to certain annuities to his widow, the defendant, Ann Randfield) to his son William Cass Randfield; and in case his son died without issue, then to divers nephews and nieces. William Cass Randfield, by his will, left all his property, real and personal, to his wife absolutely. On 9th October, 1856, a bill was filed by the widow of William Cass Randfield, praying that the will of William Randfield might be established, and its trusts performed, and that the rights and interests of the parties might be ascertained. Vice-Chancellor Kindersley, by a decree, dated 25th of July, 1857, declared that William Cass Randfield became absolutely entitled to both the real and On personal property, subject to the annuities. There were two principal questions. The first was, how the costs of the suit were to be paid, whether wholly out of the personal estate; or partly out of the personalty, partly out of the realty. The second arose out of the circumstances attend ing the attestation of William Randfield's will. That will was contained in three pages, and, at the bottom of the third page, was signed by the testator, and attested by two witnesses, Groom and Harris. The attestation, however, was merely headed with the word "witnesses," and the testator, not being satisfied with this, caused a fuller attestation clause to be written on the fourth page, and Groom and Harris signed a second time. The testator's widow, who was present, persuaded Grace Beeston, the testator's niece and one of the parties entitled under the gift over of real estate in the event of William Cass Randfield's death without issue, to sign her name as a witness in addition to Groom and Harris. The question was, was this sufficient to bring the case within 7 Will. 4 & 1 Vict. c. 26, s. 15, and to prevent Grace Beeston taking any interest under the will. Baily, Q.C., and Shebbeare, for the plaintiff :-1st. On the question of costs, Burnett v. Foster, 7 Beav. 540; Johnston v. Todd, 8 Beav. 489. 2nd. On the question of attestation, 7 Will. 4 & 1 Vict. c. 26, s. 15; Wigan v. Rowland, 11 Hare, 157. Cole, Q.C., and Kay, for the defendant Ann Randfield. Glasse, Q.C., and Dickinson, for other defendants: 1st. On the question of costs, Pickford v. Brown, 2 K. & J. 426 ; Ripley v. Moysey, 1 Keen, 578; Wigan v. Rowland, loc. cit.; Baily, Q.C., in reply, Foster v. Christian, 2 Phill. 161; KINDERSLEY, V.-C., said, the principal question which arose was the question of costs. So far, of course, as this was merely an administration suit, the costs would come out of the personal estate, but what he had to decide was how the costs, occasioned by the questions as to the rights of the parties with regard to both the real and personal estate, should be borne. Were any of such costs to be borne by the real estate? Was the real estate either to bear the costs which had been occasioned by the questions which had arisen as to the rights of the parties thereto, or a proportion of the aggregate costs occasioned by the questions as to the rights of the parties, as regarded both the realty and personalty, according to its relative value? If there had been no decisions on the subject, he should have been inclined, since the costs had been incurred in determining the rights of the parties as regarded both real and personal estate, and since the same questions had arisen as to both, to have apportioned them. But that he could not do, if he found that the matter had been deliberately decided in a different way. It was not fair to the suitors that such fluctuation in decisions should occur, but it was necessary when a matter had been decided, and two or more judges had agreed that such and such a principle should be followed, that subsequent judges should be bound by such decisions. Now, in Pickford v. Brown, loc. cit., and Stringer v. Harper, loc. cit., it was decided that such costs must, like simple contract debts, come primarily out of the personal estate. There had been no clear and simple case, in which there had been no mixture of the realty and personalty by conversion, where the Court had decided otherwise. Therefore the costs of the suit, including the appeals, must be borne primarily by the personalty. On the question of the attestation by Grace Beeston, His Honour, after stating the facts, said, Was this an attestation bringing the case within the Wills Act? The 15th sect. of that Act, said, "That if any person should attest the execution of any will," to whom an interest was given by the will, the devise or bequest to such person should be null and void. Now the signing of the name to the clause of the will by which the execution by the testator was witnessed, was attesting the execution. Was this done in the present case? The testator requiring the second and more complete attestation, Groom and Harris, the same persons who had before witnessed the will, signed their names again, and by that act attested the execution of the will. This would alone have been amply sufficient, but Grace Beeston having afterwards signed in precisely the same manner, could he say that she had not attested the execution so as to bring herself under the Act? However hard it might seem, he must decide that Grace Beeston was excluded from taking any interest under the will. Will-Construction-Bond-Security. A testator, by his will, left a sum of money to trustees upon trust to pay the income to one for life, and on her marrying as therein mentioned, if her intended husband should, prior to the marriage, "well and effectually settle or secure to be paid," to or for the issue of the marriage, a sum equal to the provision made for them by the testator, then that the first-mentioned sum should be settled as therein mentioned. The husband gave his bond for the amount :— Held, that this was not a sufficient security within the meaning of the will. This was a petition praying for the transfer to the two petitioners, William Henry Bacchus and Eliza Bacchus, of a sum of 10007. each, out of a sum of 80007. standing to the credit of this cause. There was a cross petition by other parties, who claimed the whole fund. The circumstances of the case were as follows:-By his will, dated August, 1813, John James Vizeu directed his executors and trustees to invest in their names, and in the name of Eliza Arthur, such a sum as would produce 80007. capital stock, and to stand possessed thereof upon trust to pay the interest and proceeds to the said Eliza Arthur for her life, for her sole use and benefit, married or unmarried; and "in case the said Eliza Arthur should intermarry with any person of good character, and having a property equal in value to the said 80007., and such intended husband should, prior to such marriage, well and effectually, and to the good liking of the testator's said trustees, settle or secure to be paid to or for the issue of such marriage, such sum and sums of money as should equal the provision thereinafter by him made for such issue," then that the 80007. should be settled on the children in manner therein mentioned. The children were to have 10007. each, the remainder, if less than eight children, to go among certain nephews of the testator. And in case Eliza Arthur contracted a marriage not in accordance with the terms of the condition, she was to receive only half the interest of the stock, and the children of such marriage were to be entitled to no benefit. The testator died in 1815. The aeting executors transferred 80001. stock into the joint names of themselves, J. Gilbee (a trustee) and Eliza Arthur. In August, 1819, Eliza Arthur married Captain W. H. Bacchus. The trustees approved of the match, and agreed that Captain Bacchus should give a bond as a security for the "property equal in value” to the 80001. stock, which, by the will, he was com pelled to secure before the children of the marriage could take any benefit. They agreed to do so, how ever, only if "Captain Bacchus's property were of the nature required, and the bond were within the meaning, intent, and construction of the will." A bond was accordingly executed and signed by the trustees containing a proviso to that effect. After the marriage, the trustees felt some doubt respecting the value of Captain Baccius's property, and whether they could safely pay the whole income of the 80007. to Mrs. Bacchus. Accordingly, a bill was filed by Captain and Mrs. Bachus, to which the trustees put in their answer, and Sir John Leech found that Mrs. Bacchus was entitled to the whole income. Captain Bacchus died some years ago, leaving his widow, who died in 1861. There were only two children of the marriage, the petitioners in the first petition. The question was, whether the bond was a sufficient security within the meaning of the words of the will, "well and effectually, and to the good liking of the testator's said trustees, settle or secure to be paid, &c.," to entitle the children to their share under the will. Glasse, Q.C., Joshua Williams, and A. G. Marten, for the children of Captain and Mrs. Bacchus. The security was to be a security for money, and a bond is a good security for money. riage, however, they doubted whether they could safely pay the whole income of the 80007. stock to Mrs. Bacchus. The consequence was, that Captain and Mrs. Bacchus filed their bill, and Sir John Leech found that Mrs. Bacchus was entitled to the whole income. It was to be observed that Mrs. Bacchus's interest was in no way dependent upon the bond; but upon the character of her husband and the value of his property. The 80007. was then ordered to be brought into Court, and the income was continued to be paid to Mrs. Bacchus during her life. The question now was, were the children entitled? Several cases had been cited, as to how far the bond ought to be accepted as a good security. As was to be expected, however, none of them were much in point. Wilkes v. Steward (loc. cit.) was the nearest; there the trustees were empowered to lay out money in the funds, or in such other good security as they should think safe, and it was held that they were not justified in taking a bond. This, however, was not a case where there was a power to trustees to invest money; but the question arose out of the condition Baily, Q.C., and Archibald Smith, for the parties in the will. The security, it must be observed, was entitled in case the children did not take. to be made prior to the marriage, and therefore ho By personal bond you cannot "well and effectually must look at the matter as it stood at the time secure," Wilkes v. Steward, Coop. 6; Stretton v. Ashmall, 3 Drew. 9; Mills v. Osborne, 7 Sim. 30. of the marriage, and consider whether the bond did then satisfy the condition. It seemed to him, that he must decide (though not without reluctance), that the bond was not a good security within the mean Ferrers, C. Upton, and De Gex, for other parties ing of the condition. An instrument, which at the interested, Langston v. Ollivant, Coop. 33; Remington v. Deverall, 2 Anst. 550. Glasse, Q.C., in reply. time when it was given was precarious and uncertain, could not be called a good and sufficient security. If he held otherwise, he should be running counter to the general tone of the cases as to trustees investing trust moneys, and deciding in a manner contrary to what, in the absence of decision, appeared the plain and honest view. For the security given by the bond depended entirely upon, whether, when it became payable, the assets of Captain Bacchus would be sufficient to satisfy it. Would any prudent man, as KINDERSLEY, V.-C., said, the question turned upon the construction of the words, "well and effectually settle, &c." It seemed that Captain Bacchus was considered by the trustees, so far as his character was concerned, a most respectable and becoming match. As regarded the value of his property, he laid a state-regards his own money, wishing for a good security, ment before the trustees, by which it appeared that it was worth 1157. more than the 80001. stock, valued at the price of the day. The question then arose, by what instrument should this property be "settled or secured to be paid," according to the terms of the will? It appeared that the trustees took advice as to what they could safely do in the matter, and were advised that Captain Bacchus's proposal to give a bond would not be a satisfaction of the terms of the will. The trustees were desirous of concurring in the acceptance of a bond; but were afraid of incurring a breach of trust, and accordingly proposed to sign their names to the bond, expressing their provisional acceptance of it, "Provided Captain Bacchus's property were of the nature required, and the bond were within the meaning, intent, and construction of the will." The conduct of the trustees appeared to him to have been reasonable under the circumstances. After the mar lend it upon bond? Surely not, unless at a very high Minute. One order to be made on both petitions. Costs of all parties out of the fund in Court. |