instrument, the Plaintiff agreed to sell THIS cause (see p. 251. supra) came on for further By the same directions upon the Master's report. The Master had found, that the Plaintiff could make a good title to the Leigh estate, without reference to the time at which such title could be made, the decree not having referred it to the Master to state before what time a good title could be made. It was insisted, on the part of the Defendant, that as the Master had not found that a good title could be made previously to the filing of the bill, the Defendant was entitled to the costs of the inquiry as to the title. an estate to the Defend ant, and the Defendant agreed to sell another estate to the Plaintiff. The Defendant, being unable to make a good title to his estate, resisted the performance of On his agreement to purchase the Plaintiff's estate, on the ground that the agreement was intended to take effect only on the basis of a mutual exchange, and he failed in that defence. Ón a reference to inquire as to the Plaintiff's title, the Master found that the Plaintiff could make a good title, but he did not find that he could make such title before the filing of the bill, the consideration of the time at which the Plaintiff's title could be made having been expressly excluded, at the hearing, from the terms of the reference: Held, that the Defendant was liable to the costs of investigating the title in the Master's office. VOL. II. X 1835. CROOME v. Lediard. “v『*》 On the other side it was contended, that the Plaintiff was entitled to the costs of the inquiry, inasmuch as the Defendant had rendered the suit necessary by the nature of the resistance which he had made to the specific performance of the agreement -a resistance founded on a construction put upon the contract which the Court had declared to be erroneous, and which was wholly independent of the question of title. The costs of the inquiry as to title, therefore, without regard to the time at which a good title could be made, the consideration of time having been expressly excluded from the terms of the reference, were as much costs occasioned by the conduct of the Defendant, as any other part of the costs of the suit. Mr. Pemberton and Mr. Wilbraham, for the Plaintiff. Mr. Bickersteth and Mr. Whitmarsh, contrà. The MASTER of the ROLLS.* 1 The suit and the consequential inquiry were rendered necessary by the nature of the Defendant's contention as to the construction of the agreement; and as he has failed in his defence, which turned upon the construction of the agreement, and not upon a question of title, So he must pay the costs of investigating the title in the Master's office. The Defendant, having by his conduct rendered the suit necessary, is liable to all the costs incident to the suit. 1833. KNIGHT v. GOULD. 1833. Dec. 12, 13.16. SARAH WARD, by her will duly executed and A bequest of attested, after directing her debts, funeral and tes residue "to my executors hereinafter named, to and testamen tary charges, and also to recompense executors, is a persons as a tamentary expenses, and also the duty on her pecuniary legacies, to be paid by "my executors hereinafter enable them named," out of her personal estate, devised her freehold to pay my debts, legalands in the county of Warwick to James Kemp, James cies, funeral Kemp the younger, and John Prior Ward, "my executors hereinafter named," and their heirs, upon trust to sell the same, and stand possessed of the purchase monies them for their upon trust, after payment of the expenses which her said trouble, equally betrustees should incur, and also of such sums as should tween them;" be reasonable for the trouble which they might experi- the appointfollowed by ence by reason of the aforesaid trusts, and of carrying ment of three this part of her will into execution, to divide the residue persons as of such purchase monies among certain classes of her gift to those relations therein described; and in case no such relations should be found, she directed such residue to sink into her personal estate. She then gave and bequeathed unto the aforesaid James Kemp the elder, James Kemp his son, and John Prior Ward, their executors, administrators, and assigns, the sum of 8000l., 3 per cent. consols, part of the stock then standing in her name in the Bank of England, nevertheless subject to, and charged with the payment of the several life annuities thereinafter particularly mentioned; and she further bequeathed unto the said James Kemp the elder, James Kemp his son, and John Prior Ward, the sum of 100%. each. She next gave the dividends of divers considerable sums of stock to certain individuals therein named respectively, with a direction that the capital should fall into and form a part of her residuary personal estate. class in their official character; and, therefore, one having died in the lifetime of the testator, the whole residue vests in the two survivors. -- Her will then contained the following passage: “ I James Kemp the elder, one of the three persons named as executors in the will, died in the lifetime of the testatrix; and, upon her death, the present bill was filed by persons claiming to be her next of kin, for the purpose of having their rights declared, and the usual accounts taken against her executors. The material question in the cause was, whether the share of the residue bequeathed to the executor who had died in the testatrix's lifetime vested in the two surviving executors absolutely, or whether it lapsed for the benefit of her next of kin; in other words, whether the gift of the residue was to those who should become her executors by surviving her, and assuming the office, or to the three individuals whom she had appointed to that office, taking the residue as a personal bequest. The MASTER of the ROLLS decided that the two surviving executors took the whole; and an appeal was now brought from that decision. The Attorney-General and Mr. Girdlestone senior, for the testatrix's next of kin, in support of the appeal, contended that the gift of 100l. to each of the executors was bestowed on them in virtue of their office; and that the the residuary bequest to the executors thereinafter They cited and commented upon the cases of Bagwell v. Dry (a); Page v. Page (b); Owen v. Owen (c) overruling the case there stated of Hunt v. Berkeley, in which Sir Joseph Jekyll, upon a somewhat similar bequest, had decided in favour of joint-tenancy; Peat v. Chapman (d); Ackerman v. Burrows. (e) ཟ་། Mr. Pepys, Mr. Rolfe, Mr. Jacob, and Mr. Wood, contra, submitted that the cases cited on behalf of the next of kin, were all distinguishable from the present, which must be determined solely upon the intention of the testatrix, as that was to be collected from a careful examination and comparison of all the provisions in her will. They referred to Frewen v. Relfe (g); Viner v. Francis (h); Roper on Legacies (i); and also to Lord Eldon's observations in Jackson v. Jackson (k) with respect to the nature of the interest taken by executors. w oft md: bob no (a) 1 P. Wms. 700. (b) 2 P. Wms. 489, (c) 1 Atk. 494. |