the subject of the suit. If the Court shall be of opinion that the contract ought to be carried into effect, the sum of 500l. will be in the right hands; if it shall turn out, whether from defect of title or for any other reason, that the contract ought not to be carried into effect, the Defendant will be remitted to his character of mortgagee, and will have a right to receive his mortgage-money and interest. In the present state of the cause, the right order will be to restrain the proceedings in outlawry, upon the Plaintiff in equity giving judgment in the action for the amount of the mortgage-money and interest with stay of execution, such judgment to be dealt with as the Court shall hereafter direct. 1

1 ..

{1

MASSEY v. PARKER.

PART of the will of Elizabeth Wadsworth, dated the 8th of February 1829, was in the following

residuary pro- words:
perty to her
two grand-
daughters,
who were

both unmar

ried at the
date of the
will; and
she directed
that the in-
terest should
be for and
under their
sole control,
the principal
to be equally
divided for
the use of

“And, secondly, it is my will that my two granddaughters Eliza and Rebecca Wadsworth receive the full interest of all monies not otherwise bequeathed that I may die in possession of; and it is my will, that the said interest be for and under the sole control of my said two grand-daughters, the aforesaid Eliza and Rebecca Wadsworth, the principal to be equally divided for the use of the surviving issue; but if either, and that Mary Wadsworth their mother shall have no control whatever over this their property, and at the demise of their surviving the said Eliza and Rebecca Wadsworth, the principal issue, and that M. W., their to be equally divided for the use of their surviving issue; mother, but if either one of my grand-daughters die without should have no control issue, her share of the property returns to the surviving whatever grand-daughter, and if both should die without issue, the property must return to my niece Eliza Lucas, the wife of Charles Lucas Lucas of Winchester. In case of her death, I will it to be divided equally amongst her children. I give and bequeath to Eliza Lucas, the wife of Charles Lucas Lucas of Winchester, the sum of 20l. a year for her own use."

over it. One
of the grand-
daughters, E.
W., married
after the
death of the
testatrix, and
her husband
became in-
solvent:
Held, that

the words of

The

the will did not indicate an intention to exclude the marital control, and that the legacy to E. W. passed to her insolvent husband's assignee.

Semble, that, if the words had indicated an intention to give the interest of the property to the separate use of the grand daughters, the legacy would s'ill have passed to the assignee of the insolvent husband; for a gift to the separate use of an unmarried woman will not restrict her right of disposing, in any manner, of the property given, and consequently of giving it, if she think fit, by the act of marriage, to her husband.

The testatrix died in June 1829, leaving her two grand-daughters named in the will, Eliza and Rebecca Wadsworth, surviving her. Eliza was of but age; Rebecca Wadsworth was an infant and unmarried at the date of the will, and at the death of the testatrix. In the month of December in the same year, Eliza Wadsworth married Jedediah Wood; and there were

children, issue of the marriage. In August 1833, Wood took the benefit of the insolvent debtors' act; and the Plaintiff Massey was chosen assignee of his estate and effects.

The bill was filed against the executors, by whom the will was proved, and other parties claiming interests under the will. To this bill the Defendants demurred; and the questions raised upon the argument of the demurrer were, first, whether, upon the words of the will, the testatrix intended to give the interest of her residuary personal estate to her grand-daughters to their separate use; and, secondly, whether, if such were her intention, it was an intention to which the law would permit effect to be given.

Mr. Spence, in support of the murrer.

The intention of this testatrix to give to her granddaughters a separate estate in the interest of her residuary property is plainly to be collected from the context of the will, and there are apt technical words to give effect to that intention. The testatrix had evidently two species of control in her contemplation the control of the husbands with whom her granddaughters might intermarry, and the control which might be exercised over her grand-daughters by their mother. Against the marital control she provides by directing that the income of the fund shall be "under

"

the

1834.

MASSEY

บ.

PARKER.

the sole control" of her grand-daughters, and that the principal shall go to their issue; and she then commences a sentence with the words "but if either," intending to provide for the events of the decease of one or both of her grand-daughters without issue. It then occurs to her that there was another species of control to which her grand-daughters, until their marriage, would naturally be subject, namely, the control of their mother; and, having provided against the mother's interference with the interest of her residuary property, she again takes up the subject from which this second and distinct object had diverted her attention, and, beginning with the same words "but if either," she proceeds to provide for the event of a failure of issue. That the marital control was the first species of control present to her mind, and against which she intended to provide, is evident from the circumstance of her making a provision in the same sentence for the children of her then unmarried granddaughters, one of whom, it must be observed, was an infant at the date of the will.

With respect to the sufficiency of the words used by the testatrix to effect her intention, it is clear, upon the authorities, that the words "under the sole control" will give a separate estate. In Ex parte Ray (a), Sir Thomas Plumer says, "Taking the words 'sole use' by themselves, they must have the same meaning as 'separate use;' omitting the word sole, the property would go to the husband; but I am not at liberty to reject that word. 'Sole' means solely hers-for her sole benefit. It is an emphatic and operative word." Here then the testatrix has used that emphatic and operative word; if she had omitted to use it, the property would have

(a) 1 Mad. 199.

have gone to the husband, but as she has used it, she has effectually excluded all right of the husband, or of his assignee to the property so bequeathed. In Prichard v. Ames (a), a separate estate was held to be given to a married woman under the words " for her own use and at her own disposal;" expressions less strong than ins the present case, for the emphatic word sole was there wanting.

If an attempt should be made to distinguish between the cases of married and unmarried women, Adamson v. Armitage (b), and ------ V.. Lyne (c), are conclusive authorities to shew that there is no ground for such a distinction. In Adamson v. Armitage the gift was. " for the sole use and benefit" of the testator's female ser vant, who appears from the argument in the case to have been a single woman, and in ------ v. Layne the bequest was for the sole use and benefit of the testator's widow, who must, of necessity, have been a single woman when the gift took effect; and in both these cases the words used by the testators were held to vest the property in the legatees exclusive of the right of a future husband.

Mr. Pemberton and Mr. Kindersley, contra The first question is, whether the words used by the testatrix are sufficient to indicate an intention to give the income arising from her residuary property to the separate use of her grand-daughters; but the more general, and by far the more important question raised upon this demurrer is, whether, supposing that intention to have been unequivocally expressed, it is such an intention

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