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ing distinctly. That this was the ground is sufficiently clear from the report; and it is put upon this, and with approbation, by Sir W. Grant in Cambridge v. Rous (a), where he comments upon Lord Thurlow's decision.
So, too, in Nowlan v. Nelligan (6), Lord Thurlow held it to be clear, from the very peculiar manner in which the daughter was mentioned, and also the widow (the legatee), in relation to the daughter, that the latter was, at all events, to take something; and the only way in which this could be accomplished was by giving effect to the executory bequest, and holding the death of the first taker to mean her death at any time. This view of Lord Thurlow's reasoning is approved by Sir W. Grant in the case, so often referred to, of Cambridge v. Rous.
There remains to be considered the case of Lord Douglas v. Chalmer (c), upon which it may first of all be observed, that it differs from the present case in this material particular. It was a bequest over, in case of death only, without any limitation to be derived from a preceding life estate or period of vesting specified ; so that the Court had only to choose between giving effect to the executory bequest, and supposing the testator to have had in view a lapse by predecease of the first taker. That decision, therefore, might well stand with the one I am now making, inasmuch as the Court is not here driven to elect between giving effect to the executory bequest, and holding the first gift to vest at the testator's death, but has the other course, always to be preferred where the will leaves it open, namely, that of taking a period to which the death may relate other
than (a) 8 Ves. 12.
(c) 2 Ves. jun. 501. (6) i Bro. C. C. 489,
than the testator's lifetime. But though this consideration removes Douglas v. Chalmer out of the way as regards the present purpose, still it may be said to leave it in conflict with the whole of the decisions where the testator's life was the period fixed upon. It is to be considered, therefore, whether there be not peculiarities in that case by which it may be reconciled with the others, or something in the decision itself which may diminish its value as an authority.
The question arose upon the gift of the residue to Lady Douglas, and in case of her decease to her children. Lord Loughborough relied mainly upon the codicil; he considered the manner in which a jewel was there given to Lady Douglas as indicating that the testatrix could not have intended to give her the absolute interest in the residue, for that would have made this part of the codicil superfluous. He also relied upon the manner in which the codicil provides for a case of predeceasing the testatrix, which is done in very express words, “if A. B. should be dead before me,” as shewing that such predecease could not have been in her contemplation, when she framed the legacy to Lady Douglas ; and when his Lordship came to give his second judgment upon the rehearing, he dwelt upon another circumstance which might very fairly be taken into the account; namely, that giving an absolute interest to Lady Douglas was giving it to her husband, there being no sole and separate use provided for, which it seemed unlikely the testatrix should intend, as the mention of children shewed a desire that they, and not their father, should take. It needs hardly be remarked that those peculiarities on which Lord Loughborough relied belong none of them to the present case; and only one of them (the last), to any of the other cases. That they are sufficient to reconcile the decisions with those other
cases is perhaps more than can safely be affirmed ; although Lord Alvanley and the other Judges, in commenting upon the case, seem to think that they go a great way towards effecting such a reconcilement. The language of Lord Loughborough certainly cannot be so reconciled, especially where he says " that taken by themselves the words admit of little doubt; such a gift implying naturaliy that the parent is to take for life, and the children the capital at the parent's death :" a proposition in the very teeth of all the authorities. The observation too upon Nowlan v. Nelligan, that it was a much stronger case, is not to be supported. These considerations certainly lessen the authority of that decision, in so far as it may be in conflict with the others; but a bias appears to have existed in the learned Judge's mind towards the construction which he adopted, arising from his extra-judicial knowledge of a fact not in the cause. Lord Douglas had been married before, and had children by his first wife; it was the children of the second wife whom the testatrix, their grandmother, plainly meant to favour, and yet the construction which would give Lady Douglas an absolute interest, by giving it to Lord Douglas, brought in the children of the first marriage equally with the objects of her bounty. Lord Loughborough very fairly admits that this consideration moved him; but it is clear he had no right to regard it. Then it must be remembered, that three years afterwards, the same learned Judge decided Hinckley v. Simmons (a) according to the current of authorities, and without any hesitation. That was a bequest of all the testatrix's fortune to A., and in case of her death to B. Lord Loughborough said that however hard, it was a case of very little difficulty, and he cited Lorfield v. Stoneham (6), but made no reference to Douglas v. Chalmer ; from
which (a) 4 Ves. 160.
(6) 2 Str. 1261.
which one of two consequences must be allowed to follow; either that he did not adhere to his former opinion; or, which is most probable, that he considered it to depend upon the peculiarities of the case, and not to touch the general rule.
But a discrepancy much more difficult to be reconciled is to be observed between the decision now under appeal, and an earlier determination of the same learned Judge who pronounced that decision; I allude to the case of Slade v. Milner.(a) That was a series of bequests to different persons, chiefly females, and in each there was a proviso that in case of her death, the said sum should be divided equally among her children. The residuary clause gave the residue to three persons, among whom was one of the former legatees, and added, that in case they should have departed this life before the testatrix, and consequently before the will took place, then the residue was to go among the children of two of the residuary legatees, and the children of a third person deceased. His Honor held the case so clear against the executory bequest on the death of the legatees, that he called on the other party to support it: and decided that the natural sense of the words plainly gave an absolute interest, and that there was nothing in any other part of the will to disturb this inference. Yet the residuary clause was clearly so framed as to shew that when the testatrix contemplated the predecease of legatees, she could use very precise terms: indeed this residuary clause affords to the full as strong an argument in favour of the executory bequest, as that on which Lord Loughborough relied so much in Douglas v. Chalmer ; and it is remarkable that the case with which this last comes most into collision is Slade v. Milner, decided without any doubt by the
(a) 4 Mad. 144.
same learned Judge, whose present decree can only be supported upon the authority of that very case, or rather of the language of that very case, of Douglas v. Chalmer.
I am, on the whole, clearly of opinion that the decree cannot stand ; that it gives a construction to the will neither consistent with the natural import of the words, nor borne out by any authority, while it is contradicted by all the decisions upon the point, and almost all the authority upon questions of a similar kind.
The judgment must, therefore, be reversed, and the nieces of the testator declared to take an absolute interest in their legacies of 20001., upon attaining the age of twenty-one respectively.
MʻMASTER v. LOMAX. Whether the M R. COOPER moved for an order that an attach2 W. 4. c. 33. extends to
11 ment might issue under the writ of the sheriff of Scotland,... Wigtonshire, or other proper officer in Scotland, against quære. If it Loes, the act the Defendants Stewart and his wife, who were in
contempt for want of an answer. tionary only, and the Court in this case
The bill sought to carry into effect the trusts of a refused so to extend it. will relative to certain real estates situate in Southwark,
of the rents and profits of which Stewart and his wife were alleged to be in the receipt, their place of residence being in the county of Wigton. Under an order made by the Vice-Chancellor, on a special motion that service of the subpoena together with a copy of the prayer of the bill upon the Defendants in Scotland should be deemed good service, Mr. and Mrs. Stewart were served, and an appearance was entered for them. They after