66 MIDLAND RAILWAY COMPANY v. GUARDIANS OF EDMONTON UNION. [H. OF L. sus H. OF L.] was of opinion that the application to tax made on the 5th Dec. 1892, the date appointed by the clerk of the peace, was the commencement of a proceeding within the meaning of sect. 4, and that the appellants had, therefore, made out their title to recover the costs. The Court of Appeal, by a majority consisting of Lord Halsbury and Smith, L.J., reversed this decision. Lindley, L.J. dissented, concurring with the view taken by Charles, J. Lord Halsbury expressed the opinion that until a sum of money, which was ceptible of payment was ascertained, there was no debt, claim, or demand then due, or become due by the guardians." He was further of opinion that the effort to tax was not the commencing of proceedings within the meaning of sect. 4. Smith, L.J. pointed out that whether the order of session of July 1892, or the date of taxation of Jan. 1893, was to be taken as the date when the debt or claim of 2061. 17s. 7d. was incurred or became due, the action which was brought on the 2nd March 1894, was too late. He also concurred in thinking that the application to tax was not a commencement of proceedings within sect. 4. Lindley, L.J. thought that the appellants' claim came within sect. 1 of the statute on the 13th July 1892, when the respondents were ordered to pay the appellants their costs, and that the proceeding to tax was a commencement of proceedings within sect. 4. I agree with the majority of the Court of Appeal in rejecting the latter contention. I think the proceedings referred to in sect. 4, which are to be commenced within the time limited, must be such as will result in a judgment or in a final settlement equivalent to a judgment. "Such proceedings" must, according to the terms of the section, be prosecuted with due diligence to judgment or other final settlement of the question, and the obligation is to satisfy "such judgment.' It must, therefore, be the same proceeding which is prosecuted from its commencement to the judgment or other final settlement. This construction is, in my opinion, strongly supported by the final words of the section. The application to tax was not the commencement of a proceeding which would issue if duly prosecuted in a judgment or other final settlement, but was merely incidental to the original order of sessions. It was necessary for the purpose of rendering the order to pay the costs complete and effectual. Without it that order was not obligatory, and could not have been enforced. The proceedings now pending are not a continuation of the step taken to ascertain the amount of the costs to be paid, but are independent proceedings subsequently initiated. If, on a true view of the operation of the statute, the debt or demand now sought to be enforced was not incurred or did not become due until after taxation in Jan. 1893, the appellants are equally out of court, even supposing they could make good their contention that the present proceedings did not commence with the issue of the writ, but with the order of the Divisional Court by which the order of sessions was brought into the Queen's Bench Division. In any view of the case, therefore, the present appeal must, in my opinion, fail. Inasmuch, however, as differing views have been expressed with regard to the operation of sect. 1 of the statute in the present case, I think it right to express the doubt which I entertain whether any debt, claim, or demand had, within the meaning of that section, been incurred or become due before the taxation of the costs. The order of quarter sessions in terms only created an obligation on the respondents to pay the 2061. 17s. 7d. "within fourteen days after the service on them or their clerk" of the order. It is to be observed that the enactment in question is not in the nature of a statute of limitation. It is a fetter on the action of the guardians; a prohibition against payment after a certain date. I cannot but doubt whether it was intended to prohibit them from paying after the lapse of three months from the termination of any half-year a debt which they were not at any time during that period liable to pay. It strikes me that the prohibition must refer to something which they might have paid, and did not, and that it can scarcely have been contemplated that they were either to pay a debt before it became payable or to be unable to pay it at all. Although I have thought it right to express these doubts, the considerations to which I have already adverted are quite sufficient to dispose of the appeal. I move your Lordships that the judgment of the Court of Appeal be affirmed, and the appeal dismissed with costs. Lord WATSON.-My Lords: This is a suit by the appellant company for recovery of certain costs to which they were found to be entitled by the Court of Quarter Sessions, on the 13th July 1892, in an appeal at their instance against the assessment committee of the Edmonton Union. The duty of paying these costs was imposed upon the respondents in this appeal by sect. 3 of 27 & 28 Vict. c. 39, and the only question arising for your Lordships' decision is, whether they have been relieved of that liability, and the appellants' claim extinguished, by the provisions of sects. 1 and 4 of the Act 22 & 23 Vict. c. 49? The clerk of the peace at first declined to tax the appellants' costs, on the ground that there had been no consent to taxation out of court, but he eventually did so, in obedience to an order of the quarter sessions, on the 26th Jan. 1893. As soon as his taxation was completed he issued to the appellants an order bearing date the 13th July 1892, directing the taxed amount to be paid within fourteen days after the service of the order, or a copy thereof. That order was duly intimated to the present respondents on the 22nd Feb. 1893, and they, on the 25th of the same month, gave notice to the appellants that they would treat the order as null and void. It has now been decided elsewhere (70 L. T. Rep. 355), and must be assumed, that the taxation was regular, and that the order was binding on the respondents. In the courts below, and in the argument of this appeal, the question was discussed whether the order pronounced by the Court of Quarter Sessions on the 13th July 1892 was in itself sufficient to create a debt, claim, or demand due by the respondents within the meaning of sect. 1 of the Act of 1859. If so, it was payable by the respondents within the half-year ending on the 29th Sept. 1892, or within three months afterwards. On the other hand, if no debt, claim, or demand was, in the sense of the statute, constituted until the costs were taxed, and an order issued for payment of the taxed amount, the appellants' claim became payable by the respondents within the half-year which expired on the 25th March 1893, or within the three months immediately following that date. Whether the one or the other of these views were adopted, the result of this appeal would, in my opinion, be the same. But I am not prepared to affirm that the appellants were between the 13th July 1892 and the 26th Jan. 1×93 in right of a debt, claim, or demand due and payable by the respondents within the meaning of the Act. I think that the order made by the Court of Quarter Sessions on the former of these dates was in substance, and of necessity, nothing more than a finding that the appellants were to have an order for payment of their costs as and when the same should be taxed. Until the amount was ascertained by taxation there was no debt of which the appellants could legally demand payment, or which the respondents were either bound or in a position to discharge. The object of the two clauses in the Act of 1859 already referred to is very plain. It is to protect persons subsequently becoming ratepayers in the union from the burden of debts which had been incurred, and ought in due course to have been paid, by their predecessors. The effect of the clauses when read together is, in the first place, to impose upon the guardians a statutory obligation to pay in each half-year, or within three months after its expiration, the whole debts, claims, and demands which have become due or have been incurred by them during that half-year; and, in the second place, in the event of the guardians' failure, or refusal, to make payment, to extinguish the right of the creditor in such debts, claims, and demands, unless he shall within the period thus limited have commenced proceedings in a competent court, and shall with due diligence prosecute the same to judgment or any final settlement. Power is given to the Poor Law Board to extend the time within which payment is to be made for a period not exceeding twelve months from the date of the debt, claim, or demand. In this case no extension of time has been allowed by the Poor Law Board. In order to save their claim for costs from extinction, it was therefore incumbent upon the appellants to institute proceedings on or before the 25th June 1893. It is admitted that the appellants did not commence proceedings for that purpose before the 29th June 1893, when they applied for and obtained from Wills, J. an order under sect. 18 of 12 & 13 Vict. c. 45, removing the order of the Court of Quarter Sessions into the Queen's Bench Division of the High Court of Justice. It does not appear to me to admit of doubt that, before the application was made, their claim against the respondents had been cut off by the provisions of the Act of 1859. I may add that, on the assumption that the appellants' claim for costs became due and payable by the respondents during the half-year which terminated on the 29th Sept. 1892, or within three months thereafter, their present suit appears to me to be equally untenable. The only proceedings which they took during that period were towards the taxation of their costs; and these, in my opinion, were not such proceedings as the Act contemplates. They were not proceedings capable, as the Act requires, of being prosecuted to a final judgment. For these reasons, I concur in the judgment which has been moved by the Lord Chancellor. Lords MACNAGHTEN and SHAND concurred. Judgment appealed from affirmed, and appeal dismissed with costs. CT. OF APP. Solicitors for the appellants, Beale and Co. Solicitors for the respondents, Howard and Shelton, for F. Shelton, Lower Tottenham. Supreme Court of Judicature. COURT OF APPEAL. Friday, May 24. (Before LINDLEY, LOPES, and KAY, L.JJ.) APPEAL FROM THE CHANCERY DIVISION. Voluntary deed Rectification Action-Evidence-Intention. An action was brought to rectify a voluntary settlement, made by a deed-poll or declaration of trust, and dated the 15th July 1880. It was executed by the plaintiffs, two elderly ladies and their nephew, who was appointed trustee. The plaintiffs had recently discovered, as they alleged, that the deed did not carry out their real intention, and they therefore desired to have it rectified in certain respects. It was decided by Kekewich, J. (72 L. T. Rep. 556) that the court had jurisdiction, in a proper case, to reform or rectify a voluntary settlement, as well as a settlement for value; but that the court would hesitate to rectify a voluntary settlement at the instance of the settlors merely on their own evidence as to their intention, unsupported by other evidence, such as written instructions. even though the rectification sought would bring the settlement more into harmony with recognised precedents, and with what the settlors might reasonably have intended at the time. On appeal: Held (affirming the decision of Kekewich, J.), that under the circumstances this was not a case in which the court ought to order the deed to be rectified, there being no satisfactory evidence of a mistake having been made; and that therefore the appeal must be dismissed. APPEAL by the plaintiffs from a decision of Kekewich, J. (72 L. T. Rep. 556). Warmington, Q.C. and A. R. Kirby for the appellants. Badcock for the respondent, the trustee of the deed. The COURT (Lindley. Lopes, and Kay. L.JJ.) were of opinion that, under the circumstances, this was not a case in which the court ought to order the deed to be rectified, the evidence being wholly insufficient to show that a mistake had been made, or that the plaintiffs, at the time when the deed was executed, had an intention different from that carried into effect by the deed. Their Lordships reviewed the evidence and discussed the facts of the case, and referred to the observations of Cotton, L.J. in Tucker v. Bennett 58 L. T. Rep. 650; 88 Ch. Div. 1. at p. 15. The appeal was accordingly dismissed. Appeal dismissed. Solicitors for all parties, Dawes and Sons. (4) Reported by W. C. Biss, Esq., Barrister-at-Law. Wednesday, May 22. (Before LINDLEY, LOPES, and KAY, L.JJ.) Re STONE; BAKER v. STONE. (a) APPEAL FROM THE CHANCERY DIVISION. Will Division of fund-Per capita or per stirpes. A testator gave the income of his real and personal property to his wife for life, and after her decease he directed that the proceeds arising from his property should be paid to his brother and sisters yearly, to be equally divided between them (naming them), without the control of their present or future husbands. At the decease of either of his before-named brother or sisters their interest in the property was to be equally divided amongst their children; and after the decease of all he directed the whole of his property to be sold, moneys called in, &c., "and to be equally divided between the children of the aforesaid, share and share alike." Held (reversing the decision of Stirling, J.), that the meaning of the words of the ultimate gift was that the fund should be divided per capita, and not per stirpes. JOHN STONE, by his will dated the 10th Jan. 1841, gave and bequeathed to his wife Mary Ann a certain dwelling-Louse, with the cottage adjoining and the premises thereunto belonging, with all his furniture and all other property which he might be possessed of at the time of his decease; and he likewise gave to his said wife the rent of certain pieces of land, and all interest arising from moneys due to him on any security whatsoever, all the above-named property to be for her sole use during her life without the control of any future husband, subject, nevertheless, to the payment of his just debts and funeral and testamentary expenses; and after the decease of his said wife he directed that the proceeds arising from his property should be paid to his brother and sisters yearly, to be equally divided between them, namely, Chas. W. Stone, Catherine (wife of T. Carrington), Susan (wife of T. Buck), and Ann (wife of M. Lott), without the control of their present or future husbands, and at the decease of either of his before-named brother or sisters their interest in the property was to be equally divided amongst their children, and after the decease of all he directed the whole of his property to be sold, moneys called in. &c., "and to be equally divided between the children of the aforesaid, share and share alike." The brother and sisters named in the will all survived the testator, and each of them had children, but in unequal numbers. There was no child born after the testator's death. On the death of the testator's widow, who survived the brother and sisters, the property became divisible among their respective children, and the question arose whether those persons took per stirpes or per capita. On the 9th Feb. 1895 the matter came before Stirling, J. His Lordship referred to Brett v. Horton (4 Beav. 239), Nockolds v. Locke (3 K. & J. 6), Re Campbell's Trusts (54 L. T. Rep. 419; 55 Ib. 463; 31 Ch. Div. 685; 33 Ib. 98), and Smith v. Streatfield (1 Mer. 358), and was of opinion that the reasoning in Brett v. Horton (ubi sup.) applied to the present case. The circumstance that here (a) Reported by E. A. SCRATCHLEY, Esq., Barrister at-Law. [CT. OF APP. the persons interested all stood in the same degree of relationship to the testator, which was not so in Brett v. Horton (ubi sup.), did not appear to him sufficient to make a valid distinction between the cases. The learned judge accordingly made a declaration that the proceeds of the sale and conversion of the testator's real and personal estate were divisible among the respective children of the testator's brother and sisters living at his death per stirpes and not per capita. From that decision the children who would have gained by a distribution per capita now appealed. Ingle Joyce for the appellants.-There is no ambiguity in the words of the ultimate gift here. They are not cut down by the context, and the disposition should bear its plain and natural meaning. Stirling, J. relied on Brett v. Horton (ubi sup.). He thought that the reasoning in that case applied here. But I say that the present case is not at all like Brett v. Horton. There are material distinctions between the two cases. There the testator directed his property to be divided equally between certain individuals and a class of children. Such a direction gives rise to the question whether the testator does not regard the class as together forming an individual. In that case, moreover, the division was to take place on the happening of an event relating only to the class of children, so that a division per capita on the happening of that event would have been irrational. The circumstances are different in the present case. If the order made by Stirling, J. is allowed to stand, it must be taken as settled that a plain gift to children per capita will be changed into a gift per stirpes if their parents take life estates. In Nockolds v. Locke (ubi sup.) Wood, V.C. distributed the fund per capita, distinguishing the case from Brett v. Horton ubi sup.) on grounds which are not very satisfactory. [LINDLEY, L.J. referred to Re Campbell's Trusts, (ubi sup.)]. That case turned on the word "each," which does not occur here. [KAY, L.J.-The Master of the Rolls said that the words of the ultimate gift in Brett v. Horton (ubi sup.) were plain]. In the present case the words are even plainer. No one would feel doubt. Smith v. Streatfield (ubi sup.) referred to by Stirling, J. is, I submit, in my favour. Vernon R. Smith, Q.C. for the respondents.In the ultimate gift double words of division are used as regards the corpus, but single words only are used as regards the income. A doubt, therefore, arises whether the first words of division do not relate to the stirpes, and the subsequent words to the division between the descendants of a stirpes. [KAY, L.J. referred to Macgregor v. Macgregor (1 De G. F. & J. 63)]. Only a very slight indication of intention is necessary in order to justify a stirpital construction. I say that the distribution of the income is certainly stirpital. The division of the income is to be per stirpes as long as any brother or sister is living. The general proposition is stated in 2 Jarman on Wills, 4th edit., p. 195. Brett v. Horton (ubi sup.) is a very old authority, and has been followed in numerous similar cases, and its reasoning applies to the present case. The sense in which it has been understood by text-writers is shown in Jarman on Wills (ubi sup.). This case is also very like Re Campbell's Trusts (ubi sup.). CT. OF APP.] Re LOWMAN; DEVENISH v. PESTER. As regards Nockolds v. Locke (ubi sup.), I say that it is in my favour, for Lord Hatherley intimates that if the whole income of the fund had been given among the grandchildren per stirpes, instead of merely an allowance for maintenance, he would have followed Brett v. Horton (ubi sup.). No reply was called for. LINDLEY, L.J.-This is an appeal from an order of Stirling, J. declaring that the proceeds of the testator's estate are divisible among the testator's nephews and nieces per stirpes, and not per capita. The testator by his will gives a life interest in all his property to his wife for her life, "and after the decease of my said wife the proceeds " (by “proceeds" he evidently does not mean proceeds of sale, but the income of the property afterwards directed to be sold)" arising from my aforesaid property to be paid to my brother and sisters yearly, to be equally divided between them. namely (here follow the names); at the decease of either of my before-named brother or sisters their interest herein to be equally divided amongst their children" (i.c., the children of the brother or sister dying, it not being disputed that while any brother or sister survives the division of income is per stirpes)" and after the decease of all" (i.e.. my brother and sisters) "I desire the whole of my property to be sold, moneys called in, &c., and to be equally divided between the children of the aforesaid, share and share alike." Here "the aforesaid" must mean "my brother and sisters.” Why are we to take this to mean that the distribution is to be per stirpes? The obvious meaning of the words is, that the division is to be per capita, and the language is not open to ambiguity. But it is said that the language must be controlled, because, so long as there is a brother or sister living, the division of the income is per stirpes. But there is no sufficient indication of an intention that the capital should ultimately be divided in the same way. I think that the testator directed a division of the income per stirpes, because he meant that the shares of the survivors of his brother and sisters in the income should not be interfered with. I cannot see how he could more clearly have expressed a division of the capital per capita, without going on to use the expression "per capita," which would have been surplusage. LOPES, L.J.-I also am of opinion that the proceeds of sale must be distributed per capita. The ultimate words of gift standing alone would, beyond all doubt, make the distribution per capita. But it is said that the fact of the income up to the time of division being distributable per stirpes raises a presumption that the capital also is to be distributed per stirpes. I think that fact is not enough to raise such a presumption. The testator appears to me in substance to have said, "I desire my property to remain intact so long as any brother or sister of mine is living, and during that period the shares of income which they respectively take are not to be interfered with, but when the property is sold I intend all their children to take the proceeds, share and share alike." KAY, L.J.-On the face of the will it appears that the testator was entitled to real estate, and to moneys due on mortgages, bonds, notes of hand, and other investments, and he expresses himself so as to show that he did not intend a conversion until the final period of division. Probably the [CT. OF APP. investments produced a good income, and he did not wish to have that income reduced by conversion. What he means to be done when the brother and sisters are all dead is unmistakably clear. "I desire the whole of my property to be sold, moneys called in, &c., and to be equally divided between the children of the aforesaid " (ie., of my brother and sisters), "share and share alike." No one contends that if these words stood alone the division would not be per capita. But it is said you can see from the context that this was not the testator's intention. A context ought to be very strong to alter the effect of such Until plain words. Now, what is the context? the brother and sisters are all dead there is a division of the income per stirpes. It does not at all follow from that that the testator did not intend a division of capital per capita. If the testator had instructed his solicitor to draw a will dividing the income per stirpes until the brother and sisters were all dead, and then dividing the capital per capita, what more appropriate language could have been used? We ought to abide by the language of a testator, and not alter it on conjecture. Solicitors for all parties, Rowclifjes, Rawle, and Co., agents for Hippisley, Bristol. April 23, 24, May 7, 21, and 28. APPEAL FROM THE CHANCERY DIVISION. Will-Devise of real estate-Testator entitled only to share of proceeds of sale-Successive limitations of personal estate Remoteness - Perpetuity Intermediate income-Woman past age of child-bearing. Where a testator shows a clear intention to dispose of particular property to which he is entitled, although he mistakes the nature of his interest in that property, a gift of it as land instead of money arising from its sale does not prevent his interest in it from passing to the person whom he intended shall take what he is himself entitled to. Where there are successive limitations of personal estate in favour of several persons absolutely. the first of them who survives the testator takes absolutely, although he would take nothing if any prior legatee had survived and taken, the effect of the failure of an earlier gift being to accelerate and not to destroy the later gift. Harris v. Davis (1 Coll. 416, at p. 421 dissented from. Decision of Kekewich, J. reversed. In considering whether a gift by will is or is not invalid on the ground that it infringes the rule against perpetuities, the court must go back to the time of the death of the testator, and consider the events which might then possibly happen; and the gift will fail if in any event which might then happen the subject of the gift might vest in someone who might not come into existence within a life then in being and twenty-one years afterwards. Although, with reference to the rule against perpetuities, the court will regard any living person. however old, as capable of having children (Re (a) Reported by E. A. SCRATCHLEY, Esq., Barrister-at-Law. CT. OF APP.] Re LOWMAN; DEVENISH v. PESTER. Dawson; Johnston v. Hill, 59 L. T. Rep. 725; 39 Ch. Div. 155), yet the court will act on the presumption, amounting almost to a certainty, that a woman well past the age of childbearing will not have a child. By his will, dated the 14th May 1859, Hugh Perkins Lowman, who died on the 1st March 1864, devised unto two trustees and their heirs all that his messuage and land at Axe, in the parish of Broadwinsor," and also all the freehold messuages, lands, tenements, and hereditaments situate in the several parishes of Crewkerne and Wayford, in the county of Somerset, which I am seised or possessed of under or by virtue of the settlement made on the marriage of my late niece, Maria Fathers Richards, with Edward England Richards, subject to the life interest of the said E. E. Richards therein," to hold the same to the use of the trustees and their heirs to the uses, upon the trusts and for the purposes thereinafter mentioned-viz., to the use of the testator's nephew, H. L. Pester, and his assigns, during his life, without impeachment of waste, with remainder to the trustees and their heirs during his life in trust to support the contingent uses thereinafter limited; and from and after the death of H. L. Pester to the use of the first and other sons successively in tail male, with remainder to the use of the first and other sons successively of the testator's niece, Ellen Susannah Pester, in tail male; with remainder to the use of the first and other sons successively of the testator's niece, Mary Pester, in tail male; with remainder to the use of the first son of the testator's niece, Flora Pester, and the heirs male of his body, and in default of such issue to the use of the second, third, fourth, fifth, and all and every other the son and sons of Flora Pester, severally, successively, and in remainder one after the other, according to seniority and priority of birth, and the heirs male of their bodies respectively, with remainders over, the ultimate remainder being to the use of the testator's own right heirs. The testator devised and bequeathed the residue of his real estate and all his personal estate to some nieces in equal shares as tenants in common. The other material facts, and the nature of the questions raised, appear from the judgments. On the 22nd Nov. 1894 it was decided by Kekewich, J. that the residuary legatees were entitled to the testator's share of the proceeds of sale of the settled lands in the parishes of Crewkerne and Wayford. From that decision the plaintiff now appealed. Warmington, Q.C. and Upjohn for the appellant. -The question raised in the present case does not relate to real estate, but to an undivided share of the proceeds of sale of real estate. We ask the court to carry out the intention of the testator, that the property should go to the first person who comes into existence after the life estate referred to. The case is governed by a line of authorities extending over a century: Trafford v. Ashton, 2 Vern. 660; Donn v. Penny, 1 Mer. 20; [CT. OF APP. Boydell v. Golightly, 14 Sim. 327; Re Stringer's Estate; Shaw v. Jones-Ford, 37 L. T. King v. Bennett, 4 M. & W. 36. [LINDLEY, L.J.-Harris v. Davis (1 Coll. 416) is against your contention.] That case is not in accordance with the earlier decisions, and we submit that Knight Bruce. V.C. was not right in the view which he took. His Lordship disagreed with the previous decisions, particularly with Mackinnon v. Peach (2 Keen, 555.) (LINDLEY, L.J. -Williams v. Lewis (ubi sup.) is the case most in your favour.] Yes, and the authorities leading up to it. Kekewich, J. relied on Blake v. Blake (15 Ch. Div. 481). There is a case which carries the doctrine of Blake v. Blake (ubi sup.) even further, Re Clowes (68 L. T. Rep. 395; (1893) 1 Ch. Div. 214), distinguishing Woodhouse v. Meredith (1 Mer. 450). They referred also to 2 Jarm. on Wills, 5th edit., p. 1072; Fearne on Cont. Rem., 6th edit., p. 517. Fischer, Q.C. and Sampson for the respondents, some of the residuary legatees.-The exact point to be determined here has never before arisen. But the principle to be applied to it is clear on the authorities. Where there is nothing answering to any part of the description of property disposed of by will, the devise fails: Miller v. Travers, 8 Bing. 244. If there is something which answers fully the words of description, that, and that alone, will pass: Slingsby v. Grainger, 7 II. of L. Cas. 273. Under a devise of messuages in a particular parish, freehold and leasehold messuages may pass unless the limitations are only appropriate to freeholds, or there is some other evidence of intention to exclude the leaseholds: Thompson v. Lady Lawley, 2 Bos. & P. 303. If a testator has no power to pass property, he cannot dispose of it by will: Millar v. Woodside, 6 Ir. Rep. Eq. 546. We submit that Harris v. Davis (ubi sup.) is precisely in point. Where there is a bequest of personalty to A. for life, and, after A.'s decease, to the heirs male of A.'s body, and in default to B. for life, and so on, A. takes an absolute interest, and the gift over is void: Tothill v. Pitt, 1 Madd. 483; 7 Bro. P. Cas. 453. As to the question of intention, in cases where a gift of land has been held to carry a gift of money, the testator has been entitled to the whole. Where he is entitled to part only it is otherwise: Holloway v. Radcliffe, 23 Beav. 163. Macnaghten for the respondents, other residuary legatees in the same interest, supported the argument adduced on behalf of the before-mentioned respondents. G. W. M. Dale, for the respondent, the executrix of the will, took no part in the argument. Upjohn replied. Cur. adv. vult. May 7.-The following written judgments were delivered: LINDLEY, L.J.-The question raised by this appeal turns on the construction and legal effect |
